Laura Marginata
On January 31 Congress proved itself adept at window dressing. The Agent Orange Act of 1991, enacted amid great fanfare, purports to assist Vietnam veterans who were injured by their exposure to Agent Orange. Yet the legislation is a mere gambit.
The bill, passed unanimously by both chambers, is intended to shore up support for our imbroglio in the Gulf. It gives the impression that American troops—two decades of neglect notwithstanding—are well cared for and received their due.
But the reality is bleaker. The Veterans Affairs Committee, led on the House side by Mississippi Democrat G. V. (Sonny) Montgomery, ensured that the bill would remain barren: of the dozens of health problems for which vets might have received compensation, coverage for all but three perished in committee. Since the Veterans Administration pays for care for those three diseases, the net gain for vets is zero.
Admiral Elmo Zumwalt, Jr., who ordered that certain areas of Vietnam be sprayed with Agent Orange and whose son, a Vietnam vet, died of Agent Orange-related cancers, expressed disappointment at the outcome. Zumwalt had hoped to see 27 adverse health consequences incorporated into the bill. Ron Kovic, the decorated Vietnam war hero turned antiwar activist whose story has become the stuff of movies, assails the legislation. “I think it is totally hypocritical, it’s insensitive, it’s fraudulent,” he said. “It’s too little too late. Congress just wants to put on a good face for the parents of those who are over in the Persian Gulf right now—all of a sudden it’s in their best interest to take care of the vets. It’s good for morale.”
“What worries me,” he added, “is that this is just a charade—and when these young men and women come back injured by chemicals and gas, when they come back wounded, in wheelchairs, with broken hearts and broken bodies, that they will be forgotten just as we were forgotten. For 20 years they denied us: where was Congress when we came home?”
A particularly glaring omission is assistance for vets whose children have suffered genetic damage. Based on conversations with thousands of Vietnam vets every year, Jim Donaghe, executive director of the Los Angeles-based Agent Orange Community Support Group, estimates that 50 to 70 percent of veterans’ children have birth defects.
“They used to send us to China Beach to wash off the chemical in the water…”
Experiences of Texas vets and their families
Worse still, said Donaghe, the defects have begun showing up in a third generation. He tells of a young couple who married and conceived without realizing they were both children of Agent Orange victims. The parents were born with the most common problems: learning disabilities, emotional troubles, allergies. Their baby was born without limbs.
Our military sprayed an estimated 12 million gallons of Agent Orange over Vietnam. The deadly herbicide eliminated foliage that concealed enemy troops. It also sickened soldiers and civilians—American and Vietnamese—wherever it was strewn.
The initial offensive to strip South Vietnam’s heavily forested countryside was called Operation Hades—perhaps a portent, seeing as how life has been unmitigated hell for many vets ever since.
Agent Orange contains dioxin, which the Environmental Protection Agency deems “one of the most perplexing and potentially dangerous” chemicals known. Dioxin can penetrate the body through numerous routes, including the skin, lungs, or mouth.
American soldiers, oblivious to the defoliant’s dangers, lived in a perpetual chemical mist. They ate it in their food, drank it in their water, and inhaled it as it descended on them in a fine, white pungent haze. They used empty Agent Orange drums as barbeque pits, stored potatoes in them, and rigged them up as showers. Kovic recalls fixing coffee in Da Nang and noticing the defoliant floating around in his cup. “But my staff sergeant said, ‘Go ahead and drink it—it’s okay. It’s not going to hurt you.’ So I did.”
Soon the vets began experiencing unusual health problems: an abnormal number of soft-tissue cancers; skin and liver diseases; wild mood swings; a severe skin rash called chloracne; and birth defects among their babies. The US government and the manufacturers of Agent Orange denied any link between the herbicide and the vets’ illnesses.
Since then, Vietnam vets have struggled mightily to get adequate compensation for their exposure to Agent Orange. At every turn they have been deceived and rebuffed. Dow Chemical Company concealed information about the extreme toxicity of dioxin and Agent Orange while acknowledging the harmful effects in 1965 in a confidential internal memo. According to the EPA, Monsanto has falsified data about the dioxin level in products ranging from Lysol to Agent Orange; the company knew its Agent Orange was contaminated with dioxin as early as the 1960s. The Centers for Disease Control has been accused by Zumwalt, the National Academy of Sciences, members of Congress, and others of scuttling a major investigation into the defoliant’s effects on the vets, squandering $63 million in the process.
That vets must continue fighting this war—and on their home turf, in skirmishes against their own government and giant chemical companies—constitutes one of the most sordid aspects of the Vietnam legacy. On March 6, in a New York courtroom, yet another chapter in this shameful history will play itself out. And once again the vets might suffer an ignominious defeat at the hands of their own country.
The case to be heard in Brooklyn is the second massive class action suit on behalf of Vietnam vets injured by Agent Orange. The suit, Shirley Ivy et al. v. Diamond Shamrock Chemical Co. et al., was originally filed in Texas state court but has been shifted to federal court in New York. The vets and their families believe they have a constitutional right to present their case in Texas, where the lead plaintiff lives and where one of the defendant chemical companies is headquartered. Moreover, their claims are based on state, not federal, law.
Three federal courts have thus far refused to explain on what grounds the federal judiciary can assert power over this suit. In fact, to remove the case from Texas’s jurisdiction has required what amounts to judicial sleights of hand. The defendants—among them Diamond Shamrock, Monsanto, Dow, Uniroyal, and Hercules—concede that the number of veterans involved in this suit “could equal or exceed” the number in the previous case. The companies would like nothing better than to see the suit decided in New York rather than Texas and by a judge rather than a jury. A Texas jury could recompense the vets generously for their debilitating injuries and the birth defects afflicting their children—an outcome that could cost the corporations billions.
The companies have been granted their wish—which they’d stated openly—that this case be heard by the same judge who presided over the first suit. That time, they sauntered out of the courtroom virtually unscathed: a controversial settlement reached hours before the case was to go to trial required them to pay $180 million—a pittance when split among the tens of thousands of claimants. Donaghe, who was declared totally disabled (to qualify for payment, vets must be totally disabled or dead), received just $2,000—$500 a year for four years.
Though significant portions of the scientific evidence presented during the first suit—for example, the falsified Monsanto data—have since been discredited, the chemical companies seem confident that US District Judge Jack Weinstein will rule in their favor and dismiss the case, quashing it forever.
There is an Italian proverb: Who offends writes on sand, who is offended on marble. Our country nonchalantly discarded Vietnam vets once their usefulness had expired; the vets still chafe at our ingratitude. They thought they were defending democracy and justice—the very principles denied them upon their return home.
Now that we have dispatched another wave of young Americans to wage war on our behalf in Iraq, it is imperative that we resolve the last generation’s unfinished business. With Congress opting for style over substance, the only remaining forum for meaningful change is our judicial system. Vietnam vets deserve their day in Texas court.
Seeking Texas justice
It was 1988 when a soft-spoken but determined Huntington, Texas, woman began legal proceedings against the manufacturers of Agent Orange. Since then, her case has gathered more plaintiffs and could mushroom into one of the largest personal injury class-action suits in history. On March 6, Shirley Ivy et al. v. Diamond Shamrock Chemical Co. et al., though filed in Texas, will be heard in the Brooklyn courtroom of US District Judge Jack Weinstein. How the case has ended up in New York speaks volumes about the steady stream of injustice Vietnam vets and their families have waded through for 20 years.
The hurt is palpable when Shirley Ivy recounts her Agent Orange story. In 1987, she and her husband, Donald, were stunned to learn that he had cancer of the liver and pancreas. Old people’s cancers, his doctor called them. Donald Ivy was 45.
A nonsmoker with no history of cancer on either side of his family, Donald Ivy attributed the diseases to his intense exposure to dioxin-laden Agent Orange while a Marine Corps captain in Vietnam. His doctor concurred. “I understand why they used Agent Orange to clear the jungles,” Ivy remembers her husband saying. “But I really am very bitter that here I have sat for 17 years without knowing the consequences. Why did they not send out one little letter saying, ‘Hey, dioxin is dangerous to your health’? That way we could at least have tried to protect ourselves.”
Shirley Ivy’s case is the second major class-action suit filed on behalf of Vietnam veterans. None of the vets represented in her case realized they were ill when the first suit was settled and dismissed in 1984. Ivy and her fellow plaintiffs reject the notion, argued strenuously by the chemical companies, that their claims fall under the auspices of the first settlement. Under what law, they wonder, can your claim be settled years before you even know there was a claim to make? How can you be forced to accept the decision of other people’s lawyers when you had no legal counsel there to represent you?
As if that issue weren’t problematic enough, the case was removed from Texas state court to New York federal court, ostensibly to consolidate it with other pending Agent Orange litigation. Just one slight hitch: there are no other cases pending. The courts in effect have acknowledged this by refusing to cite the case with which Shirley Ivy’s suit is being combined. “It’s just inconceivable how this could happen,” said Ivy, perplexed by the turn of events that has taken her case out of Texas. “Our constitutional rights have been violated. Here we have 500,000 soldiers in the Persian Gulf fighting for our freedom—if they knew this could happen to them, I wonder how they’d feel, over there on that foreign soil? I know a lot of vets now who are not receiving the rights we fought for in Vietnam. It’s a sad commentary.”
Other Texas vets and their families, like Ivy, express sentiments ranging from frustration to chagrin. Don Braksick, a totally disabled vet who lives in Call and who served as a combat engineer during his two years in Vietnam, is a vocal supporter of the Ivy case: “We want our day in court. This Agent Orange business has gone on too damn long,” said Braksick. His health deteriorating, he speaks with that urgency he and other Vietnam vets convey when they sense their days are numbered. “Too many studies and studies—how many millions of pages do you need? I’ve got boxes and boxes of information on the use of herbicides in Vietnam. What I’ve learned the government’s doing is slamming the door shut on us.”
R. J. Huckaby, chairman of the Standing Committee on Agent Orange for the Vietnam Veterans of America Texas State Council, believes the case has acquired special significance in light of the disappointing Agent Orange bill passed by Congress in January. “It hasn’t helped us one iota,” he said of the legislation. “It’s a Band-Aid on a broken leg.” A former Green Beret, Huckaby is fighting off bouts of extreme illness; a newly discovered abnormal lymph node means he must undergo surgery for the ninth time. His health problems began in Vietnam. “Both times I came out of the jungle I was covered with sores and blisters from the stuff [Agent Orange],” he said. “They used to send us to China Beach to wash off the chemical in the water—they thought soaking ourselves in salt water might lessen the pain from the sores.”
Among the dozens of people Huckaby has contacted about the Ivy case is John Cook at the Texas Veterans Commission, which is affiliated directly with the office of Governor Ann Richards. Huckaby would like to see Richards take action on Ivy’s behalf.
Shirley Ivy is also marshalling her forces: she has been conferring with vets and wives of deceased vets whose stories so resemble her own it seems eerie. She has contacted Dallas Congressman John Bryant in the hope that he and fellow Democratic Representative Jack Brooks, of Beaumont—two Texans on the House Judiciary Committee—will initiate hearings on the notorious “government contractor defense” that has permitted Agent Orange manufacturers to walk away from liability charges.
Ivy has written to Governor Richards, as well as to the Texas Attorney General, explaining that she believes her fundamental rights have been abrogated. She is urging Richards to file an amicus brief with Judge Weinstein insisting the case be brought back to Texas. “I’ve done just about everything except sit on the doorstep of Ann Richards,” Ivy laughed. “And I’d do that, too, if I thought it would do any good.”
Donald Ivy made one request of his wife before his death in 1988. “He said, ‘Please promise me that you won’t give up on this—that you’ll see it to the end. When I’m gone, don’t forget.’ ” The month he died, Shirley Ivy was talking to a lawyer about Agent Orange. She wouldn’t think of quitting now.
This article appeared in The Texas Observer (March 8, 1991).
