The veterans wouldn’t have gotten a dime if this Agent Orange case had gone to trial,” says Kenneth Feinberg, 39, the high-powered Washington attorney who this week will announce just how many real dimes victims of the deadly defoliant will receive. Since his appointment last spring as a special court “master” by U.S. District Judge Jack Weinstein, Feinberg has been hammering out a formula for the distribution of a $180 million out-of-court settlement, agreed upon by attorneys representing some 200,000 Vietnam vets claiming Agent Orange contamination and attorneys representing the seven companies that made the chemical. The settlement ended an impassioned five-year legal battle for compensation by servicemen exposed to the 11 million gallons of Agent Orange—containing highly toxic dioxin—that were sprayed over the jungles of Vietnam from 1965 to 1970. It did not end the Agent Orange controversy, however, and Feinberg’s compensation plan apparently won’t either (see following stories). “There is only a finite amount of money here to play with,” he says, waving one of the day’s six expensive cigars like a baton. “If I divided it among everybody who has any type of disability, everyone is gonna end up getting a check for $150.”
Instead Feinberg proposes a three-part division of the money, the interest on which has already increased the principal to nearly $200 million: (1) $125 million to $130 million would go to “completely disabled” contaminated veterans, meaning that 10,000 to 12,000 men and women would receive $2,500 every year for 10 years, while the estates of deceased vets could file for compensation; (2) $30 million would establish a foundation to provide counseling programs for the 56,000 children born with birth defects to Agent Orange vets; (3) a final $30 million would finance counseling and vocational rehabilitation for fully and partially disabled victims.
Even Feinberg acknowledges that veterans with partial disability and those with crippled children are likely to feel angry. “I don’t think people with moderate illnesses will get any reimbursement,” he says. “Obviously, not everyone can be covered—not every child with birth defects. The courts are simply not equipped to handle the unique problems associated with Agent Orange.” Though the medical evidence is still being studied, contaminated veterans have reported illnesses ranging from chloracne—a virulent skin disease—to debilitating liver problems and fatal cancers. Their children have been born with defects ranging from learning disabilities to multiple deformities. Ominously Feinberg also points out another group his formula doesn’t cover. “Don’t forget,” he says, “we don’t know how many of the 2.5 million veterans who are well now are in fact ticking time bombs.”
Still, Feinberg sees “two saving graces to the job.” First, “some people will get compensated.” Second, the largest mass damage award ever negotiated in American history may set a legal precedent for handling other huge class-action suits. “This will have implications for cases such as Bhopal [Union Carbide] and Bendectin [the morning sickness drug alleged to have caused birth defects],” he says.
Feinberg credits Judge Weinstein (friends for 15 years, they both clerked for the same judge after law school) for the novel settlement of a case that promised to drag on for years. “Judge Weinstein is Solomon in this case,” he says. “It’s simply impossible to satisfy everyone because this is a very divisive issue.” The judge will begin hearings on Feinberg’s proposal March 5 before ruling on the exact distributions April 1. Many have also praised Judge Weinstein’s pioneering decision concerning legal fees. Only about 120 lawyers out of 900 representing the vets got part of the $9.3 million that Judge Weinstein awarded, far less than they had requested. One lawyer got $10.80. Some legal experts say the decision may end the era of huge “windfall fees” for lawyers who bring class-action suits.
Feinberg already has earned $275,000 for his work on the decision, and he’s untroubled by his lack of direct knowledge of the conflict. “I don’t have a feel for what the Vietnam veteran thinks because I didn’t go through that,” he says, “but I don’t have any guilt about not going to Vietnam. I have an advisory committee that tells me what the veterans’ hopes and aspirations are.”
During the war years Feinberg, the son of a tire salesman, was working his way through the University of Massachusetts and New York University Law School. After graduation in 1970, he was an Assistant U.S. Attorney, joined Sen. Ted Kennedy’s staff in 1975 and by 1977 was Kennedy’s main mover and shaker in Congress. He now runs the Washington office of the eminent New York firm of Kaye, Scholer. “I’m up when the factory whistle blows at 4:30 a.m. and sitting at this desk at 6,” he says. “Guess maybe it’s because I grew up in Brockton, Mass., a factory town.” Most nights he arrives back at his red-brick colonial home in Bethesda, Md. in time to help his wife of nine years, Diane, 36, a former stockbroker, tuck their three young children into bed.
He had insomnia when he was first appointed to the Agent Orange case last year, but now says, “It is tremendously satisfying to help what has been called ‘the forgotten class,’ the Vietnam veterans. I’ve done nothing quite like this before, and, quite frankly, I have my doubts that the future holds anything this challenging.”
The parents of an afflicted 14-year-old girl oppose the settlement
“It’s a sellout. We’re outraged,” says Maureen Ryan, 37, about the settlement that will provide no direct financial aid for Kerry, her severely handicapped daughter. Maureen’s anguish symbolizes the plight of other Agent Orange families in a special way. Her daughter’s suffering was the subject of the 1982 book Kerry, and the child was the leading plaintiff in the long battle to win compensation for the damaged children born of men exposed to Agent Orange. “We wanted Kerry and all the children recognized as disabled war veterans who served in Vietnam genetically with their fathers,” says Mrs. Ryan. “In essence, Judge Weinstein has told the children with birth defects he is going to hand them tin cups and put them out on the street to beg for money from their wheelchairs.”
Maureen’s husband, Michael, 39, now a Long Island police sergeant, was exposed to Agent Orange in 1966 when the defoliant was sprayed around Long Binh, 20 miles north of Saigon. At the time he was an enlisted man with the 11th Armored Cavalry Regiment. He since has suffered respiratory problems, migraines, chloracne, extensive nerve damage, hearing loss and liver problems.
Kerry, now 14, was born with multiple birth defects, becoming, according to the Agent Orange Computer Center, one of some 56,000 afflicted children whose fathers claim exposure to Agent Orange. There have also been almost 30,000 reported miscarriages and stillbirths by women married to those men and 9,000 vets reporting cancer after being exposed to the chemical. The Ryans say they have spent $275,000 caring for Kerry and estimate that it will take another $6.6 million to care for her during her lifetime. So far most of Kerry’s costs have been covered by Michael’s police insurance in Suffolk County. The Veterans Administration is not required to contribute to or provide medical care. “When my husband was 19 years old,” says Maureen, “the U.S. drafted a future generation of children. Now they’re saying there are too many claims out there. Tell me how it is that the state can buy out Love Canal because of the same dioxin [poisoning], and then the judge turns to me and says there’s no scientific proof this causes birth defects?”
Kerry will never walk away from her wheelchair. But that is the least of it. “She has four deformed fingers,” says Michael, “and is missing the thumb on her right hand, which is attached at the elbow. She was born without an anus, has a malformed intestine, a malformed bladder and double reproductive organs. She’s missing a part of her spine. She has a hole in her heart and on and on. She’s partially blind, has suffered brain damage and speech impediments. She must crawl upstairs or be carried up, and yet…
“And yet Kerry wakes up every day happy to be alive. She has taught us what our priorities are: When you get up in the morning, feel happy to be alive. Kerry keeps you straight.” Michael Ryan pauses. “We’ve been screaming at other Americans to pay attention because Kerry may be your grandchild 20 years from now.”
A cancer victim favors the settlement
Elmo Zumwalt III, a Fayetteville, N.C. attorney, will not get a cent from the settlement, even though he has advanced cancer of the lymph glands that he believes was caused by his exposure to Agent Orange. Unlike the Ryans, however, he is not in the least bitter about being denied a wedge of the pie. Nor does he think, in light of inconclusive medical evidence, that alleged victims of Agent Orange should have been awarded more money. He calls himself “painfully objective.” He suggests that his judgment may be “clouded by my legal background.” But he believes that those cashing in on the settlement should consider themselves fortunate.
Elmo Zumwalt III is his father’s son—which is to say, a good soldier. But there is more to the affinity, a tragic twist. For it is a terrible irony that Zumwalt Ill’s father, Admiral Elmo Zumwalt Jr., was the man who 17 years ago advocated the spraying of Agent Orange in the Ca Mau Peninsula—precisely where his son, a young naval officer, was in charge of a so-called swift boat, patrolling the Cua Lon River for Vietcong and regular army infiltrators. Young Zumwalt says he was aware of Agent Orange. He and the other men were, in fact, grateful for it, since defoliation kept the firefights further inland and away from the banks of the river.
Zumwalt III finished his tour in Vietnam in 1970. He came home, married Kathy Counselman, went to law school and gave no thought to Agent Orange. Then in January 1983, Zumwalt went in for a routine medical checkup. His doctor noted that his spleen was enlarged; subsequent tests determined that he had “stage four lymphoma.” Says Elmo, “My physician wondered if I was in a state of shock because I was so calm. But I’ve looked in the eye of death many times. I was born with a hole in the upper chambers of my heart, I had polio when I was 6, and anybody who rides riverboats in Vietnam knows how to face death hour-by-hour.”
Last November he learned that his son, Russell, now 7, who has had developmental delays since birth, has a “sensory integration dysfunction,” a disorder that prevents him from properly integrating light and sound. Kathy, who’d read about Viet vets and birth defects, asked her husband if he’d ever been exposed to the deadly herbicide.
These days Zumwalt III continues to practice law in Fayetteville. He makes monthly visits to the National Cancer Institute. Last spring he went to Stanford University Medical Center for a biopsy. From his tissue, experts are trying to develop an experimental monoclonal antibody therapy that might help him. “The toughest part about having a terminal illness,” he says, “is having a 10-year-old daughter [Maya] who recognizes there is something very seriously wrong in the family. I’m in pretty good shape, all things considered. I might get a long roll, but there is an eight-year median survival.”
In an interview some months back with the Washington Post, Admiral Zumwalt remarked that he still believes that Agent Orange “saved thousands of lives in Vietnam” by destroying the jungle cover that the enemy used for concealment. “Even if a causal relationship can be established—and it hasn’t—between Agent Orange and the illness,” said the admiral, “I would have to conclude on balance, given the tragedy of war, that many more men are alive today, including possibly my own son, because of Agent Orange.” Zumwalt III, meanwhile, calls himself a “pragmatist.” He says of his plight that “it doesn’t serve any useful purpose to be bitter.” His father, the admiral, has called him “an inspiration.”