The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress
December 2002
VETERANS BENEFITS UPDATEVVA Joins Class Action Lawsuit With SHAD
BY LEONARD J. SELFON, DIRECTOR, VETERANS BENEFITS PROGRAM
As part of its ongoing efforts to protect the health and welfare of veterans and their families, VVA has become the lead plaintiff in an unprecedented class-action lawsuit in federal court. The suit seeks redress for the consequences of unknowing exposure to hazardous agents during the government's secret weapons-testing programs.Project SHAD (Shipboard Hazard and Defense), part of a much larger weapons-testing program called Project 112, involved the intentional exposure of military personnel to biological and chemical (and possibly radioactive) agents to determine the vulnerability of naval vessels to such attacks. Similar tests also were conducted on land. These tests, which took place during the 1960s and 1970s, have resulted in illness and disability for which the government is only beginning to respond meaningfully.
The class action is based upon government officials' alleged attempts to conceal and ignore relevant records. Many of those records are veterans' personal medical records. These records would allow veterans to seek health care and compensation for the adverse health effects of being test subjects.
Specifically, the complaint seeks monetary damages for the violation of the affected veterans' constitutional rights. It also seeks court-ordered disclosure of information that will help them obtain VA benefits and health care for the consequences of exposure to hazardous agents during their participation in the SHAD and Project 112 programs. While the class action is not designed to seek individual VA compensation benefits, the proceedings should facilitate access to records that would allow these veterans and their service representatives to do so.
The number of veterans eligible to join the lawsuit potentially ranges in the thousands. The named defendants include former Defense Secretary Robert S. McNamara, who ordered the testing program in the early 1960s, as well as current and former employees of the Departments of Defense and Veterans Affairs. VVA hopes that by holding these officials accountable for their actions, the situation will not repeat itself as our troops currently prepare for possible biological and chemical exposure on the battlefield.
SUPREME COURT AND AGENT ORANGE
In a surprising announcement, the U.S. Supreme Court agreed to consider an appeal by veterans who had developed disorders as the result of their exposure to Agent Orange (dioxin) during their military service in Vietnam. In November 2001, the U.S. Court of Appeals for the Second Circuit handed down a decision in the consolidated cases of two Vietnam veterans who are suing the manufacturers of Agent Orange in a civil action. See Stephenson, et al, v. Dow Chemical Co., et al., Nos. 00-7455(L) and 00-9120 (CON), (2nd Cir. Nov. 20, 2001).
Both veterans allege that they suffered injuries as the result of being exposed to Agent Orange during the Vietnam War. Similar recent suits have been denied on the basis of the 1984 legal settlement of a class-action lawsuit against the same manufacturers. The original class action ended in a settlement and final judgment that established a $180 million fund to compensate class members who had been injured through exposure to Agent Orange during service, and to certain persons whose injuries had not manifested as of the time of the settlement. By the end of 1994, all of the settlement funds had been disbursed.
The settlement agreement prohibited the chemical manufacturers from being sued for products liability by any Vietnam veteran whose disability was not discovered prior to 1994. Since their injuries did not manifest until after the settlement money had been depleted in 1994, the two veterans in question filed their lawsuits in the late 1990s. In an April 2000 decision, a U.S. district court judge dismissed both lawsuits, finding that the veterans were legally precluded from suing the manufacturers at that late date.
In its November 2000 decision, the Second Circuit Court of Appeals overturned the district court judge's dismissal. In doing so, the Court determined that because the veterans' injuries had manifested after the settlement funds were exhausted, and because persons in that situation were not adequately represented in the earlier class action, they are not bound by the 1984 settlement. Consequently, the Court held that the current Agent Orange-related products liability lawsuits are not barred by that settlement. While the Court expressed no opinion as to the ultimate merits of the plaintiffs' claims, its decision would at least allow them their day in court.
Fearing that allowing lawsuits by affected veterans who did not become ill until after the settlement funds were exhausted would abolish the finality of products liability settlements, the chemical companies filed a petition for a writ of certiroari (a request for the Court to consider their appeal) with the U.S. Supreme Court. The crux of their argument is that if plaintiffs are allowed to sue after a previous settlement, then companies would have no incentive to agree to settle class-action cases, since they could still be dragged into court. The Products Liability Advisory Council, a consortium of approximately 100 companies, has been allowed to file an amicus (friend of the court) brief. Oral argument is expected early in 2003.
VVA SERVICE REPRESENTATIVE AND COORDINATOR TRAINING
Within a period of 120 days, the Veterans Benefits Program (VBP) conducted four service representative and service coordinator training courses. In June, basic service representative training was held in Nashville, Tenn. During the August VVA Leadership Conference in Tucson, the VBP held both advanced service representative training and service coordinator training. Another advanced service representative training was held in early November at the VVA national office. A total of 85 individuals attended these training classes. Earlier this year, the VBP trained 21 service coordinators in Des Moines.
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