thedrifter
10-16-03, 05:43 PM
Vet targets Agent Orange firms
By Gary Craig
Staff writer
October 15, 2003) — In the decades after he served in Vietnam, Tom Gallagher heard all the talk about Agent Orange.
He heard about the millions of gallons of Agent Orange sprayed in Vietnam to destroy the foliage that provided dense camouflage to the enemy. He heard about how some of his wartime brethren believed they’d developed debilitating diseases from exposure to the herbicide. He heard about the $180 million class-action settlement that the chemical companies agreed to so the mounting number of lawsuits would go away.
He sometimes worried about his exposure. But often he’d return to the carefree attitude he’d displayed during the war when he’d learned that the herbicide had been dropped around his unit.
“ It wasn’t like they were dropping bombs on us,’’ said Gallagher, a 59-year-old Greece resident.
But a battle with prostate cancer now has Gallagher revisiting his exposure to Agent Orange, and questioning whether it caused the disease. He recently sued two chemical companies — Dow Chemical Co. and Monsanto Co. — for their role in manufacturing Agent Orange.
The federal lawsuit seeks $15 million.
“ You can sue them if they failed to warn the government (of hazards), which is what this case is about,’’ said Gallagher’s lawyer, Nira Kermisch. The chemical companies continue to maintain that there is “ no credible scientific evidence’’ connecting Agent Orange to health issues, said James Tyrrell Jr., a New Jersey-based lawyer representing Monsanto. The settlement, reached in 1984, did not acknowledge any wrongdoing by Agent Orange manufacturers.
Gallagher’s prostate cancer was diagnosed in September 2001, and surgeons removed his prostate eight months later. Within days, he suffered a stroke that hampered his vision and he is at risk of losing his eyesight.
“ I’m getting tired of fighting, but I’ll keep fighting,’’ said Gallagher, a retired Rochester police officer.
Tour of duty
Tom Gallagher III hails from a military family. His father also served in the Army, fighting in World War II and Korea.
In the mid-1960s, the two discussed whether Gallagher should enlist and go to Vietnam.
“ My dad and I talked and I felt that it was my duty,’’ he said. “ I didn’t want to go to Canada and I didn’t want to go to jail. I wanted to serve my country.’’
His father gave him a Catholic scapular, a heart-shaped piece of cloth printed with a religious message, to wear on his dog tags in Vietnam.
“ He said, ‘ It’ll bring you home safe,’” Gallagher said.
While in Vietnam, Gallagher served in the 504th Military Police Battalion. Manning a mounted M-50 in a military jeep, he and the driver were charged with “ search and destroy’’ missions to clear a path for convoys making the 25-mile trek between Kontum and Pleiku.
The two would travel ahead of the convoys to hunt out snipers and ensure there were no explosives at bridge crossings.
“ That’s when they (the North Vietnamese) were building up for the Tet Offensive, when I was there,’’ he said.
He came home safely, as his father vowed, still carrying the scapular.
“ I am proud to be a United States Army soldier,’’ he said. “ I’m proud to have my dad serve in two wars. I’m proud that my family did what they did when the call came.’’
The lawsuit
In 1996, the Department of Veterans Affairs, reversing a decision from two years earlier, decided there was proof of a link between Agent Orange and prostate cancer. The VA relied on National Academy of Sciences research, which determined there was “ limited/suggestive evidence’’ of a correlation.
Because of that ruling, the VA is covering the costs of Gallagher’s cancer treatment. The August 2002 decision in Gallagher’s case states that “ the VA has determined that a positive association between exposure to herbicides and the subsequent development of prostate cancer exists.’’
“ The government acknowledges (the link),’’ Gallagher said. “ They wouldn’t have paid 100 percent if they didn’t.’’
But the courtroom could be a different matter. Agent Orange litigation has followed a tortuous path, and lawyers for the chemical companies believed the 1984 settlement — then the largest of its kind — finally put the matter to rest.
The settlement paid veterans who submitted claims before the end of 1994. But in the late 1990s, two veterans, alleging they were suffering from Agent Orange-connected illnesses, sued the herbicide manufacturers.
Brooklyn-based U.S. District Judge Jack Weinstein dismissed the lawsuits, ruling that the settlement barred claims after 1994. An appellate court then overturned Weinstein’s ruling. The settlement was faulty, the appellate judges ruled, because it did not account for the possibility of future claims from veterans.
The case moved to the U.S. Supreme Court in June 2003, and the court deadlocked 4-4. (Justice John Paul Stevens recused himself. According to published reports by The Associated Press, his son, a Vietnam veteran, died of cancer in the mid-1990s.)
The deadlock vote allowed the appellate ruling to stand, opening the path for more veterans’ lawsuits. More than a dozen have been filed, court records show, and Gallagher’s is one of the first in New York since the Supreme Court ruling.
“ We’re getting a few new ones filed every week now,’’ Tyrrell said. “ For the most part they’re alleging personal injuries of varying types.’’
The chemical manufacturers are returning to some of the same defenses they used in the 1980s: that there is no definitive proof of connections between Agent Orange and illnesses and that they manufactured the herbicides at the behest of the federal government. They are asking that federal Judge Weinstein hear all of the lawsuits, including Gallagher’s.
If the lawsuits establish precedence that class-action settlements can be open-ended, then companies will be less willing to settle litigation, Tyrrell said.
“ Companies that buy peace on a class-action basis have done so, historically, largely with the assumption that they were buying peace forever,’’ he said.
But the settlement ignored veterans like him, Gallagher said. “ Everybody’s immune system is different,’’ he said. “ Everybody’s exposure was not the same. Everybody’s at a different place at a different time.’’
Gallagher said he doesn’t hold the government responsible. And, if summoned for service, he’d do it all over again.
“ I am a proud Vietnam veteran,’’ he said. “ I am proud to have served in Vietnam to this day. … The government called for me and I went.’’
--
Sempers,
Roger
:marine:
By Gary Craig
Staff writer
October 15, 2003) — In the decades after he served in Vietnam, Tom Gallagher heard all the talk about Agent Orange.
He heard about the millions of gallons of Agent Orange sprayed in Vietnam to destroy the foliage that provided dense camouflage to the enemy. He heard about how some of his wartime brethren believed they’d developed debilitating diseases from exposure to the herbicide. He heard about the $180 million class-action settlement that the chemical companies agreed to so the mounting number of lawsuits would go away.
He sometimes worried about his exposure. But often he’d return to the carefree attitude he’d displayed during the war when he’d learned that the herbicide had been dropped around his unit.
“ It wasn’t like they were dropping bombs on us,’’ said Gallagher, a 59-year-old Greece resident.
But a battle with prostate cancer now has Gallagher revisiting his exposure to Agent Orange, and questioning whether it caused the disease. He recently sued two chemical companies — Dow Chemical Co. and Monsanto Co. — for their role in manufacturing Agent Orange.
The federal lawsuit seeks $15 million.
“ You can sue them if they failed to warn the government (of hazards), which is what this case is about,’’ said Gallagher’s lawyer, Nira Kermisch. The chemical companies continue to maintain that there is “ no credible scientific evidence’’ connecting Agent Orange to health issues, said James Tyrrell Jr., a New Jersey-based lawyer representing Monsanto. The settlement, reached in 1984, did not acknowledge any wrongdoing by Agent Orange manufacturers.
Gallagher’s prostate cancer was diagnosed in September 2001, and surgeons removed his prostate eight months later. Within days, he suffered a stroke that hampered his vision and he is at risk of losing his eyesight.
“ I’m getting tired of fighting, but I’ll keep fighting,’’ said Gallagher, a retired Rochester police officer.
Tour of duty
Tom Gallagher III hails from a military family. His father also served in the Army, fighting in World War II and Korea.
In the mid-1960s, the two discussed whether Gallagher should enlist and go to Vietnam.
“ My dad and I talked and I felt that it was my duty,’’ he said. “ I didn’t want to go to Canada and I didn’t want to go to jail. I wanted to serve my country.’’
His father gave him a Catholic scapular, a heart-shaped piece of cloth printed with a religious message, to wear on his dog tags in Vietnam.
“ He said, ‘ It’ll bring you home safe,’” Gallagher said.
While in Vietnam, Gallagher served in the 504th Military Police Battalion. Manning a mounted M-50 in a military jeep, he and the driver were charged with “ search and destroy’’ missions to clear a path for convoys making the 25-mile trek between Kontum and Pleiku.
The two would travel ahead of the convoys to hunt out snipers and ensure there were no explosives at bridge crossings.
“ That’s when they (the North Vietnamese) were building up for the Tet Offensive, when I was there,’’ he said.
He came home safely, as his father vowed, still carrying the scapular.
“ I am proud to be a United States Army soldier,’’ he said. “ I’m proud to have my dad serve in two wars. I’m proud that my family did what they did when the call came.’’
The lawsuit
In 1996, the Department of Veterans Affairs, reversing a decision from two years earlier, decided there was proof of a link between Agent Orange and prostate cancer. The VA relied on National Academy of Sciences research, which determined there was “ limited/suggestive evidence’’ of a correlation.
Because of that ruling, the VA is covering the costs of Gallagher’s cancer treatment. The August 2002 decision in Gallagher’s case states that “ the VA has determined that a positive association between exposure to herbicides and the subsequent development of prostate cancer exists.’’
“ The government acknowledges (the link),’’ Gallagher said. “ They wouldn’t have paid 100 percent if they didn’t.’’
But the courtroom could be a different matter. Agent Orange litigation has followed a tortuous path, and lawyers for the chemical companies believed the 1984 settlement — then the largest of its kind — finally put the matter to rest.
The settlement paid veterans who submitted claims before the end of 1994. But in the late 1990s, two veterans, alleging they were suffering from Agent Orange-connected illnesses, sued the herbicide manufacturers.
Brooklyn-based U.S. District Judge Jack Weinstein dismissed the lawsuits, ruling that the settlement barred claims after 1994. An appellate court then overturned Weinstein’s ruling. The settlement was faulty, the appellate judges ruled, because it did not account for the possibility of future claims from veterans.
The case moved to the U.S. Supreme Court in June 2003, and the court deadlocked 4-4. (Justice John Paul Stevens recused himself. According to published reports by The Associated Press, his son, a Vietnam veteran, died of cancer in the mid-1990s.)
The deadlock vote allowed the appellate ruling to stand, opening the path for more veterans’ lawsuits. More than a dozen have been filed, court records show, and Gallagher’s is one of the first in New York since the Supreme Court ruling.
“ We’re getting a few new ones filed every week now,’’ Tyrrell said. “ For the most part they’re alleging personal injuries of varying types.’’
The chemical manufacturers are returning to some of the same defenses they used in the 1980s: that there is no definitive proof of connections between Agent Orange and illnesses and that they manufactured the herbicides at the behest of the federal government. They are asking that federal Judge Weinstein hear all of the lawsuits, including Gallagher’s.
If the lawsuits establish precedence that class-action settlements can be open-ended, then companies will be less willing to settle litigation, Tyrrell said.
“ Companies that buy peace on a class-action basis have done so, historically, largely with the assumption that they were buying peace forever,’’ he said.
But the settlement ignored veterans like him, Gallagher said. “ Everybody’s immune system is different,’’ he said. “ Everybody’s exposure was not the same. Everybody’s at a different place at a different time.’’
Gallagher said he doesn’t hold the government responsible. And, if summoned for service, he’d do it all over again.
“ I am a proud Vietnam veteran,’’ he said. “ I am proud to have served in Vietnam to this day. … The government called for me and I went.’’
--
Sempers,
Roger
:marine: