May It Please the Court!
From Auto Accidents to Agent Orange:
Building a Storefront Law Practice into
America's Largest Suburban Law Firm
Leonard Rivkin
with Jeffrey Silberfeld
Carolina Academic Press
Durham, North Carolina
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Ch. 10 - Litigation Strategy
In July 1978, when the first Agent Orange lawsuit was filed, you didn't have to be a genius
to recognize that defending Dow Chemical in the Agent Orange litigation was not going to be easy.
This was a case that was likely to be resolved more on the basis of emotion than fact.
Paul Reutershan was the first Agent Orange plaintiff, but we expected thousands if not
hundreds of thousands more. Veterans of the Vietnam War, their spouses, and their children. Many
suffering from fatal forms of cancer or grievous birth defects. Many of the veterans unemployed and
having great difficulty readjusting to civilian life. Perceived by themselves and the public as
unknowing victims of chemical toxins. Spumed by the VA. Portrayed heroically in the press and on
television.
It would have been hard to imagine a more sympathetic group of plaintiffs.
Their opponent: Dow Chemical, the napalm company. Vilified for the fires that destroyed
Vietnamese villages and slaughtered innocent Vietnamese women and children. A war contractor.
A long-standing member of the military industrial complex. A company charged with putting profit
ahead of the health and safety of American soldiers. In the words of Victor Yannacone, a "soulless
stateless multinational conglomerate chemical empire".
It would have been hard to imagine a less sympathetic defendant.
Then there was the jury, to be selected from the general population. Registered voters.
People whom the media was bombarding with powerful images of dying veterans and crippled
children. People who, upon seeing those images, may have felt guilty about the anti-war movement
and the cool reception afforded the veterans upon their return from Vietnam. People who associated
Dow with napalm but not much else. People who were likely to look for some way to make it up to
the veterans for their sacrifices and suffering. If that had to be done at Dow's expense, so be it.
Under those circumstances, what were the odds of Dow trying the case before a fair and
impartial jury.
On the facts, Dow's defenses were strong. In particular, existing scientific data provided
virtually no support for the veterans' claims that exposure to Agent Orange caused their various
illnesses and injuries.
But would a jury be able to disregard the publicity, put aside its guilt and sympathy for the
veterans, and find in favor of the hated Dow Chemical Company solely on the basis of dry, technical,
mostly unintelligible scientific data?
We had our doubts.
Accordingly, we had to come up with a strategy. We had to level the playing field. There
was no way we were ever going to make the veterans less sympathetic, so we had to find some way
to make Dow more sympathetic, or at least to deflect some of the anti-Dow sentiment toward
someone or something else.
To me, the answer was obvious.
The "bad guy" in the Agent Orange controversy was not Dow Chemical. It was the United
States government.
* * *
Dow's Government Strategy
Having identified the government as the bad guy, our next step was to figure out how to
involve the government m the litigation in ways that would strengthen Dow's defensive position. We
devised a two-pronged approach. First, we asserted the government contract defense. Second, we
commenced a third-party action for contribution or indemnification against the United States
government under the Federal Tort Claims Act.
As it turned out, both of these strategies worked to Dow's great advantage in that they did,
in fact, shill the focus of the litigation away from Dow's conduct and toward the government's.
They also created the need for substantial additional discovery and raised a host of complex
legal and factual issues. Although this dramatically increased the cost of litigating the case, Dow was
more than willing to pay that price it if increased Dow's chances of mounting a successful defense.
Finally, Dow's third-party action had an additional impact all its own. It recast the role of the
government in the Agent Orange litigation from non-party to third-party defendant. This was hugely
significant. As a non-party, the government's only obligation was to produce witnesses and
documents. It faced relatively minor litigation expenses and no risk of tort liability. In contrast, as
a third-party defendant, not only was the government obligated to produce witnesses and documents,
it also had to defend itself against charges of negligence in a multi-billion dollar class action. As such,
it faced enormous litigation expenses and a substantial risk of a staggering adverse judgment.
to chapter 11....
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