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The settlement reached last week was due mainly to the forceful prodding of Judge Weinstein. He appointed three prominent lawyers to work as intermediaries. In the final stages of the negotiations, the veterans sought $250 million plus interest; the chemical companies offered $100 million without interest. During the weekend before jury selection was to start, two of the mediators worked round the clock, shuttling between empty courtrooms in the cavernous Brooklyn federal courthouse with proposals and counterproposals. The lawyers napped on tables and benches, munched on delicatessen sandwiches, played cards and studied the latest offers. At midnight before the Monday trial, the sides were still $70 million apart and in disagreement over interest payments, but Judge Weinstein refused to delay the case. Less than three hours later he was able to tell the veterans' lawyers: "The case is over if you take 180." They did. Some 50 lawyers and corporate officials then crammed into Weinstein's chamber to crack bottles of champagne and celebrate the unprecedented settlement.
For both sides the issue of culpability is as important as compensation, and that question still lingers. The veterans and chemical companies both point the finger at Washington. "The real culprit here is the Federal Government," said a lawyer involved in the case. "The companies were told to make the Agent Orange at Government specifications. A lot of this was really misdirected." Attempts by the veterans to sue the military have thus far been blocked by a 1950 decision, Feres vs. United States, in which the U.S. Supreme Court ruled that the Government cannot be held liable for injuries that a soldier suffers while on duty. In addition, the Veterans Administration has balked at paying for treatment of many ailments that the veterans believe are related to Agent Orange, thus adding to their outrage.
Last week's settlement will not end the fight to have the Government accept some responsibility for the problems as cribed to Agent Orange. Dow Chemical announced that it would sue the Government to recover the money. Some lawyers believe that families of the affected veterans may be entitled to sue the Government even though the Feres decision prevents the former soldiers from doing so. Democratic Congressman Thomas Daschle of South Dakota, a Viet Nam veteran, demanded that the Government accept a measure of responsibility and join in providing some compensation. "If the companies can do it, then the Government can as well," said Daschle. He sponsored a bill, which has already passed the House, that would allow service-connected disability benefits for some Agent Orange victims.