Of Agent Orange and Toxic Torts

Agent Orange on Trial: Mass Toxic Disasters in the Courts, by Peter Schuck, Cambridge, Mass.: Harvard University Press, 347 pages, $25.00

The Vietnam war really ended on May 7, 1984, nine years to the day after the last U.S. troops were evacuated from Saigon. At 4:00 that morning, just hours before jury selection for trial was to begin, the titanic efforts of federal district Judge Jack Weinstein culminated in the largest civil liability settlement to date in U.S. history. Nine chemical companies agreed with a small army of plaintiffs' lawyers to pay $180 million and some change into a fund, for the benefit of several million veterans and their families who had been exposed directly or indirectly to the herbicide Agent Orange.

Manufactured by seven chemical companies for the U.S. government, Agent Orange was used to defoliate jungles, destroying the enemy cover, during the Vietnam war. When first developed, it was widely viewed as a model new herbicide. But like many other complex industrial chemicals, it contained tiny traces of dioxin—at high enough concentrations, a very potent animal carcinogen. Low-dosage effects on humans cannot be ruled out, but there is no direct evidence for them. Epidemiological studies of veterans revealed no significant correlations between exposure to Agent Orange and the incidence of disease other than chloracne (a severe but nonmalignant skin disease). Throughout the pretrial years in the Agent Orange case, notes Peter Schuck, "inferences concerning Agent Orange's causation of particular diseases in particular individuals would remain weak and speculative, and this fact more than any other would determine the future course of the Agent Orange litigation."

The case was like no other seen before in American courts. The class action consolidated more than 600 separate actions originally filed by more than 15,000 named individuals throughout the United States and almost 400 individual cases not included in the class action. It also included 2.4 million others, including Vietnam veterans, their wives, their born and unborn children, Australian and New Zealander soldiers, and a few civilians. By May 1984, nearly 1,500 law firms around the country had signed up plaintiffs as their clients. The plaintiffs' attorneys spent well over $10 million. The other side probably spent 10 times that amount on behalf of such giant corporations as Dow Chemical, Monsanto, and Diamond Shamrock. The last character—the U.S. government—was the only defendant solvent enough to call every bluff. It spent all its time trying to exit the litigation without paying a cent, and in the end it succeeded.

The defendants had most of the facts. The plaintiffs had all of the sympathy. For quite different reasons, both sides were equally horrified at the prospect of taking matters to a jury. Judge Weinstein played on these fears with consummate skill. He handed down a series of legal rulings that gave the plaintiffs a strategic position from which to bargain. He then engaged in what Schuck aptly describes as "managerial judging" and in the end "impose[d] personal views of substantive justice and public policy on the parties—and through them, on society at large." Finally, Weinstein punished the "opt out" plaintiffs who had insisted on going it alone rather than joining the class—he dismissed all their claims lock, stock, and barrel, declaring that the plaintiffs had supplied "no support for…their claims of causation."

Three decades ago a lawsuit of this scope and complexity would have been inconceivable; if it had been filed at all the defendants would have prevailed quickly. But today's courts are much more willing to take on such cases and have grown very permissive about proof of causation in "toxic tort" litigation. Supporters of the liability system insist that cases like this affirm individual rights and make for more-efficient markets by forcing those who cause injuries to bear their costs. But cause remains highly speculative in almost all environmental pollution cases, and in the end the decisions depend hardly at all on the scientific merits.

Certainly the actors in the Agent Orange spectacle, correctly given center stage by Schuck, understood as much all along. For Weinstein the case presented a marvelous personal challenge—and also "an almost impossible administrative tangle that threatened to transmogrify tort litigation and deplete the court's capacity to render justice." For the lawyer who breathed life into the veterans' case at the beginning, the case was "a vehicle for political organization, veteran consciousness-raising, and public education." Other plaintiffs' attorneys viewed "the case as a professional and financial venture, a calculated investment in the prospect of a large settlement and award of counsel fees." For the veterans themselves, it "was a searing morality play projected onto a national stage." The corporate defendants saw the case as a huge financial threat, unjustifiably placing them in the middle of a decade-old political controversy in which they had played only a minor role. For the American public at large, the case played to "a desire for national catharsis that was always close to the surface of public consciousness."

Schuck does not discuss in detail what the case means for scientists and those interested in the rational application of scientific fact to legal adjudication. The statistical facts were never aired. The case was settled because the plaintiffs feared that a jury might look at the facts carefully, while the defendants feared that it probably would not. Hundreds of millions of dollars have now changed hands in toxic-chemical liability settlements involving Three Mile Island and dumps at Love Canal; Woburn, Massachusetts; Jackson Township, Missouri; and elsewhere. Not one of these cases has involved evidence that epidemiologists and public health experts in the mainstream scientific community consider close to convincing.

The cases continue to be filed, however, and they will continue to be settled. In all but a few occupational cases with high exposure levels, cause and effect are usually impossible to pin down. But there are still 300,000 new cases of cancer every year in this country, and there is a broad though erroneous public belief that man-made toxic chemicals are often important causal factors. Businesses settle because the litigation risks are often very much more concrete than any verifiable risks from the chemicals themselves, and settlements are built on the former kind of hazard, not the latter.

The New York Times correctly characterized the case as "Orangemail" and advised a court of appeals to let the Agent Orange settlement "lie," not because it was based on a truth or reason but because in litigation as in other areas a bad peace is often better than a good war. Today we sue the chemical company; in another age we might have burned a witch or two instead.

Schuck's well-written documentary tells the story vividly and accurately. His major insight is how personalities, emotion, and the "morality play" aspects of this huge lawsuit utterly eclipsed any process of reasoned scientific inquiry. "Searching for some explanation for the devastating physical and psychological conditions that many veterans suffered upon their return, they fastened upon Agent Orange. That a synthetic chemical should seem a plausible scapegoat for their ills was undeniable. They lived in a milieu, after all, in which reputable scientists and mass media sympathetic to their cause proclaimed a growing, chemically caused cancer epidemic and in which public cancerphobia had become widespread enough to receive some judicial recognition in tort cases. The fact that no such epidemic has yet been demonstrated was largely irrelevant to the rhetorical power of the claim, especially when made on behalf of those who already saw themselves, with considerable justification, as the forgotten victims of an unpopular war."

Peter Huber, a fellow of the Manhattan Institute and senior associate of Science Concepts Inc. in Washington, D.C., is an engineer and lawyer. He is working on a book about liability law.