Speaking With: Len Rivkin
August 22, 2016 | |Leonard L. Rivkin, the founding partner of Rivkin Radler, has decades of experience as national trial counsel in high profile, landmark, and precedent-setting cases.
Len served as lead counsel on the Agent Orange class action suit and was national coordinating counsel for a major asbestos manufacturer in claims against the United States and the company’s government contractor defense. He represented a major insurer in one of the largest bank failures in American history. Throughout his career, he has represented insurers’ interests in some of the most challenging environmental-related insurance coverage litigation across the United States.
We spoke recently with Len, who remains of counsel to Rivkin Radler, about his experiences in the Agent Orange litigation.
Paul V. Majkowski: Hi, Len. How did it come to be that you represented the Dow Chemical Company in the Agent Orange matter?
Leonard L. Rivkin: Well, I started to represent them through my relationship with the Fireman’s Fund Insurance Company, which I had represented starting in the late 1960s. Dow Chemical was insured by Fireman’s Fund and a case came up where Dow was having some problems with counsel defending a case that they were on. They spoke to Fireman’s Fund and Fireman’s recommended that Dow see me personally and talk to me, and that I might be able to help them on the case. They did and I was put on the case.
This was the Ezagui case, where we met in my office with the Dow attorneys in 1972. I tried the case and we won. The co-defendant was held liable for something in the six figures.
Since I started representing Dow in 1972 and I got some good results, when the Agent Orange case came out in 1978, they contacted me and that’s when it started.
Mr. Majkowski: How did your representation in the Agent Orange case affect the firm?
Mr. Rivkin: In the beginning, I handled all Dow cases personally as they came in. This one, however, had the feeling that it was going to grow. As the case went on, I had help on the case from lawyers at the firm as well as paralegals. When the case was about to be tried, we had in the office, besides me, 25 lawyers, full time on the case, and over 25 paralegals all working full time.
As the case moved on, it gradually took over my night and day.
I ended up with a bullet hole in my office window and, sometime shortly thereafter, Dow retained a private detective agency to advise us, staying in the office as security. It ended up with my being covered at home with these private detectives as well as having the file room doors in our office locked by the detective agency. The firm continued on at its own pace but my team was covered full time during the pendency of the case.
Mr. Majkowski: Prior to the Agent Orange cases, were you previously involved in representing chemical manufacturers in toxic tort class actions?
Mr. Rivkin: Other than some minor cases, I have no present memory of handling a chemical manufacturer or any toxic tort case before Agent Orange with one exception. The exception was a natural gas tank explosion in Staten Island in 1973 where 40 men were killed when the gas tank collapsed on them as they were doing repair work on the tank.
Dow had the “non-burning” insulation in the tank which words “non-burning” were, in fact, printed on the insulation. There were a number of other chemical companies involved and Dow asked me to represent them. After having done all of my detective work and research, I felt very sincerely that Dow’s product had nothing to do with the explosion.
We ultimately settled the case with Dow paying approximately 11 percent of the gross settlement. The client was thrilled and this, of course, preceded their assigning me to Agent Orange.
Mr. Majkowski: Did you have any trepidation about taking on the Agent Orange litigation?
Mr. Rivkin: By trepidation I assume you mean my concern on the effect on my life or limb. The answer is yes. As I mentioned earlier, I had a bullet hole in my office window. I had bomb threats and death threats. Bullet proof vests were assigned to the team of the eight or nine lawyers who attended the case in court. Security guards were posted at my home and at the office.
Mr. Majkowski: What for you was the most daunting aspect of the case and how did you overcome it?
Mr. Rivkin: It was a case where veterans of the wars were the plaintiffs, and you’re right in asking me that question. Frankly, as a combat veteran in World War II, with a Silver Star and two Purple Hearts, I obviously had questions.
I wanted to stay on it and accept it and I told the client this and, after 10 years of having represented them in various matters, they invited me out to study the chemistry of the Agent Orange case and various products with them in their offices and laboratories in Michigan. As a result, I felt very strongly that the Agent Orange products sold to the government did not cause or contribute to the veterans’ injuries.
So I took the case.
Maybe the litigator in me would have taken it anyway even if Dow’s position caused some doubt but fortunately I did not have to make that choice because their product left no doubt in my mind, scientifically or otherwise.
I repeat: Their product scientifically and otherwise could not have contributed to cause any injury or death to combat veterans.
Mr. Majkowski: Amplifying a little bit about what you just said and about more of the nuts and bolts of the case, how did you learn the science?
Mr. Rivkin: How did I learn the science? Ninety percent of my learning the science was me being educated by intelligent people from Dow Chemical in Michigan. I really think I learned a lot about it there. Additionally, heavy science was involved in the Staten Island explosion case where the tank collapsed and 40 workers were killed in 1973. At that time, I got my first opening to what science was really all about.
Mr. Majkowski: What are your views on best practices concerning how to represent a client in a high profile media driven case like Agent Orange?
Mr. Rivkin: I would say “preparation, preparation, preparation.” Lawsuits cannot be handled in an intelligent manner unless every facet of it involves detailed preparation with support staff, visits with the clients, visits with the scientists, reading scientific journals, and, in any way possible, reviewing matters with detective agencies on the case as well.
Also, I would add to that, you should keep in mind that motion practice is in many ways vital, in my opinion, and was the most important way in the Agent Orange case to educate the judge.
Mr. Majkowski: Tell us about Judge Weinstein, the “Dean of Mass Torts.”
Mr. Rivkin: Judge Weinstein was and is a mover and shaker. He is, as your question poses, really the Dean of Mass Torts. The bottom line on Judge Weinstein in the Agent Orange case was that I sincerely believe the case would not have settled without his involvement. His reputation as a mover and shaker applied to that case like no other judge I know in having tried cases over all the years before many judges.
As far as my client in the Agent Orange case, they were very pleased with Judge Weinstein’s work and involvement, especially since we supplied (by “we,” I mean “Dow”) 31 percent of the Agent Orange sold to the government and, in the settlement, we paid 19.5 percent of the entire package.
Mr. Majkowski: Agent Orange often is thought of as the seminal mass tort case, so what advice would you have for the lawyer representing the next Agent Orange torts case?
Mr. Rivkin: By lawyer, you refer to defense attorneys?
Mr. Majkowski: Yes.
Mr. Rivkin: I think it is vital to have a support staff that you have confidence in. I will give you one example in the Agent Orange case about how vital it was: I was reading an article about Agent Orange in one of the scientific magazines when I came across a review of a science committee that met in London where one of the scientists in the committee discussed in detail the knowledge of 2,4,5-T and Agent Orange and mentioned the fact that these particular scientists at the meeting and government people at the meeting were given evidence of the fact that 2,4,5-T in Dow’s chemical was limited to below 20 percent. This proved vital for our cause because it indicated that the government knew all about the contents of Agent Orange and Dow’s product before they ordered the product.
The way in which we got the details on this was after I read the article, I called one of my support staff and asked them to please travel to London and contact the scientist that reviewed this at the meeting and see what you can come up with. The man I sent – Dr. Stanley Pierce – happened to be a lawyer and a scientist and he came back with the fact that the scientists I referred to before would cooperate fully with Dow in defense of this matter on that point of knowledge and would be available as witnesses when we started the trial.
Mr. Majkowski: What you’re saying is that you have to do the leg work.
Mr. Rivkin: The leg work, the reviews, the studies, the staying up nights is an absolute necessity.
Mr. Majkowski: Thank you, Len.
Mr. Rivkin: Thank you, Paul.
For further information, please contact James V. Aiosa, Paul V. Majkowski, Lawrence S. Han, or your regular Rivkin Radler attorney.
