Vietnam Vets’ Law Firm Awarded Only $3.4M in Experimentation Case

• Morrison & Foerster will eat $16M in fees, costs pursuing vets’ claims
• Government acknowledges vets due care, health information as result of suit

The law firm that spent nine years fighting and winning health care for veterans subjected to government-administered human testing of chemicals including sarin, mustard gas, and LSD was awarded $3.4 million in fees.

U.S. District Judge Claudia Wilken approved Oct. 4 the fee award Morrison & Foerster LLP negotiated with the U.S. Army that’s $16 million less than the value of the hours the firm said it put into the case.

“For MoFo it’s represents a continuation of the commitment we’ve had over the 43 years I’ve been with this firm doing pro bono cases” that’s the “latest but not the last on the long line of work we’ve done on behalf of veterans,” James P. Bennett, Morrison & Forester partner in San Francisco, told Bloomberg Law.

“The larger impact of the case is we’re proud to have given these class members a small measure of relief through the court system that they were entitled to and the Army was wrongfully withholding. We’re glad to have thrown further light on this history,” Bennett said in September. “It’s important that the government remember its history so A) as not to repeat and B) to recognize its moral and legal obligations to people who have been victims of our mistakes.”

The fee award is the latest and nearly last chapter in the litigation by soldiers subjected to the government’s decades-long human testing program who were seeking recognition and health care above what they could get at the Veterans Administration for injuries they suffered.

“The settlement amount of $3.4 million is a fraction of the fees actually incurred by Class Counsel. After over nine years of contentious litigation, the total amount of Plaintiffs’ attorneys’ fees exceeds $20 million,” the firm’s motion said.

Wilken agreed, finding the fees were reasonable “because they were substantially discounted from the original total amount of $20 million down to $4.5 million” under the Equal Access to Justice Act rates and discounting hours. The amount was further reduced to the stipulated $3.4 million.

No Apology

Wilken, however, rejected plaintiffs’ requests contained in letters from the class seeking a formal apology and raising concerns about whether the government will abide by the agreement. “These are not valid objections to the motion for attorneys’ fees and cost and service awards. Ordering an apology is likewise not within the jurisdiction of the Court.”

The $20,000 award per named plaintiff is higher than what is presumptively reasonable in the Northern District “and a higher amount will not be ordered,” Wilken said in rejecting requests plaintiffs made in letters to the court. The request for a change in tax treatment isn’t within the court’s jurisdiction.

Thousands of former service members over decades were unwitting subjects of medical testing that left lasting physical and mental injuries from drugs, chemicals, and electrocutions, Bennett, the lead attorney, said in a brief supporting the fee petition. Until the lawsuit was filed in 2009, the government denied the vets additional care for injuries suffered and held them to secrecy oaths with threat of punishment so they couldn’t even discuss the testing they endured.

“As a result of this case, the Army set up a program to provide ongoing medical treatment for class members, and the Army continues to work toward sharing newly acquired information. Plaintiffs were also released from their secrecy oaths. Accordingly, Plaintiffs have obtained excellent and lasting benefits for the class,” the attorney’s supplemental brief for fees said.

Fees Whittled

The San Francisco-based firm negotiated for the fees and $20,000 each in awards to eight veterans and named plaintiffs who were subjected to experiments.

“After an extensive effort to voluntarily narrow the fees requested, Plaintiffs submitted contemporaneous billing records for attorneys’ fees and costs totaling more than $9 million. More specifically, Plaintiffs submitted billing records for 16,309 hours and $836,864.71 in costs.” The amount was further whittled down and doesn’t affect the injunctive relief for the class.

A Department of Justice representative declined comment in September. Plaintiffs initially sued the Central Intelligence Agency, which was later dropped as a defendant. The Department of Defense and Army remained as defendants.

Decades-long Fight

MoFo partner Gordon Erspamer filed the lawsuit for Vietnam Veterans of America, Swords to Plowshares: Veterans Rights Organization, and vets over injuries suffered by soldiers who were subjects in government-conducted tests. The tests were conducted from World War II to the Vietnam War. Erspamer died in 2014.

“This action chronicles the chilling tale of human experimentation, covert military operations, and heretofore unchecked abuses of power by our own government,” the January 2009 lawsuit said.

Some 7,800 soldiers between the 1950s and into the mid-1970s volunteered to participate in experiments on the effects of chemical and biological weapons, and research on mind-control methods, plaintiffs said.

“For decades, the Army ignored its legal obligation under its own regulations to provide medical care for class members and to notify them of newly acquired information that may affect their well-being,” the attorneys’ supplemental fee motion said.

Wilken in April 2017 granted the soldiers summary judgment and ordered the Army to provide medical care to those who participated in the chemical and biological substance testing program. The judgment and fee award are final.

A total of 204 Morrison & Foerster staffers and e-discovery specialists worked on the case. Plaintiffs in August were seeking fees for time spent by 19 attorneys and six paralegals, totaling $4,515,868, including $422,739 in expert costs before further negotiation. The fees don’t include work done after the initial June 2017 filing.

Bennett, Stacey M. Sprenkel, Benjamin F. Patterson, and James R. Hancock, Morrison & Foerster, represented the vets. Nicholas Patrick Cartier and Cesar A. Lopez-Morales of the U.S. Department of Justice, Washington, represented the government.

The case is Vietnam Veterans of America v. Central Intelligence Agency, N.D. Cal., No. 4:09-cv-00037, order filed 10/4/18.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com