In the U.S.


THe U.S. Veterans Lawsuit

The backlog of Agent Orange cases needing attention at the Veterans Administration has been placed at half a million. Meanwhile, the Supreme Court has declined to find the chemical companies responsible for Agent Orange health problems, in the US or Vietnam.

Around 2.6 million US military served in Vietnam between 1960 and 1973. An additional 514,000 served in waters off the coast of Vietnam in the Blue Water Navy, while close to 300,000 served elsewhere in Southeast Asia (Laos, Cambodia, and Thailand). Shortly after returning home, Vietnam veterans began to suspect that their ill health or the instances of their wives having miscarriages or children born with birth defects may have been related to Agent Orange and the other toxic herbicides they were exposed to in Vietnam. Veterans began to file claims in 1977 to the Department of Veterans Affairs for disability payments or health care for conditions that they believed were associated with exposure Agent Orange, or more specifically dioxin, but their claims were denied unless they could prove that the condition began when they were in the service or within one year of their discharge.

In 1977, Maude De Victor, a case worker at the Veterans Affairs office in Chicago, met the widow of a veteran who had died from lung cancer who believed that his cancer was related to exposure to Agent Orange in Vietnam. De Victor began to ask other veterans about whether they remembered being exposed to Agent Orange and asking the Department of Defense, Dow Chemical and the Department of Veterans Affairs in Washington DC about Agent Orange and what was known about the health impacts. She collected files on about two dozen veterans who had illnesses they attributed to Agent Orange before her boss at the VA asked her to stop her investigation. De Victor took her files to Bill Kurtis, an investigative reporter at the CBS affiliate in Chicago, who interviewed researchers about dioxin and veterans who were sick or who had children born with birth defects. After the story “Agent Orange: Vietnam’s Deadly Fog” aired in March 1978, hundreds of veterans began to contact the VA in Chicago.

The documentary raised concerns at the VA, but the key issue was how to respond to the health complaints of the veterans without supporting their case that their illnesses were related to Agent Orange exposure. The VA developed an Agent Orange Policy Group headed by a former researcher at Monsanto and consulted with other industry researchers to determine if there are long-term effects to exposure to Agent Orange. Though the EPA continued to state that scientific research has found dioxin to be a health hazard, the VA held to the conviction that Agent Orange/dioxin had only short term and reversible affects to human health.

Veterans’ Lawsuit

The first lawsuit filed by a veteran about damage caused by Agent Orange was filed by twenty-eight-year old Paul Reutershan, who believed that his chloracne and his abdominal cancer were related to exposure to Agent Orange. After his claim to the VA was denied and being unable to sue the VA or the US government, Paul filed a personal injury lawsuit against the Dow Chemical and two other chemical companies that produced Agent Orange in NY State courts. The case received mass media attention, Paul appeared on the Today show in the spring of 1978, stating “I died in Vietnam, but I didn’t even know it.”

Just before he died in December 1978, Paul founded the Agent Orange Victims International (AOVI) and asked its handful of members to continue the fight after his death. AOVI brought on workman’s compensation attorney Victor Yannacone who filed Reutershan’s complaint as a class action lawsuit against six of the chemical companies as defendants, Dow, Monsanto, Hercules, Northwest Industries, Diamond Shamrock and North American Phillips. The case grew as lawyers around the country added their clients to the suit received huge media attention. The case managed to survive the numerous legal technicalities and infighting among the lawyers representing the veterans.

“About a million and a half of us are already gone.”
– Paul Sutton, former Chairman, VVA, Chicago Tribune, 2009.

Finally, the case ended up at Judge Jack Weinstein’s court at the Second Circuit Court of Appeals in New York City, who settled one legal question after the other to get the case to trial. Judge Weinstein defined the class as all veterans who served in Vietnam between 1961 and 1972 from the US, Australia and New Zealand who believed that they or their children were harmed by their exposure to Agent Orange. On the eve of the trial scheduled for May 7, 1984, Judge Weinstein worked out a settlement, stressing that while he felt the case was weak, the chemical companies would be unlikely to find a jury who would not side with the veterans and feel for their children born with birth defects. The companies agreed to the settlement, as long as they did not have to admit liability.

At the time, the settlement for $180 million was the largest in history. It was to be paid out by the companies in proportion to the amount of herbicides they produced and the degree of the dioxin contamination in the respective 2,4,5-T; as a result, Dow got off rather lightly, having the “cleanest” herbicides. The settlement was invested, growing into a fund of approximately $330 million by the time the distribution and legal technicalities were worked out. The fund mailed out its first checks to veterans in March of 1989. Those who were rated 100% disabled were eligible to receive a settlement of up to $12,800 paid out over 10 years. For those who had already died of Agent Orange related-illnesses, their survivors were eligible to receive a settlement of $3400. The Fund closed in 1997 after it distributed $197 million in payment to about 52,000 American veterans and their families. The average payment was $3800. The fund also distributed $74 million to social service programs that helped 239,000 veterans. Australian veterans received approximately $7 million of the settlement and New Zealand veterans about $1 million. Legal fees for the lawyers involved in the case made up almost $50 million of the total fund.

At the same time the lawsuit was underway, efforts were being made to get Congress to act on Vietnam veterans’ concerns.

The Long Wait

Along with efforts in the courts and Congress, veterans have continued to press the VA for attention.  The largest integrated medical provider in the country, providing care that is well-regarded and inexpensive, the VA currently faces an overwhelming caseload, including a skyrocketing number of Agent Orange applicants.  It has been a perfect storm, what with an aging cohort of exposed veterans now coming down with Agent Orange-related diseases, scientific progress in identifying more and more conditions as Agent Orange-related, and a faltering economy, depriving many of a private insurance alternative. But while its new computer system is expected to reduce the backlog of cases, the absence of a field in the system’s records for Vietnam service has already proved a hindrance in resolving the Agent Orange issue, compounding the impact of its long time practice of “waiting for the science.”

The battle over health care for Vietnam veterans with Agent Orange-related illnesses will eventually become moot, for two reasons.  The army will die, of course.  And health care itself seems, in 2010, to be viewed less as a commodity to be rationed and more of an American right.

Veterans and Agent Orange

Veterans and Agent Orange

National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). Washington, DC: The National Academies Press.