Reversal of Fortune
Gayle Troutwine remembers the date exactly--Dec. 7, 1991. It was the evening Connie Chung told America about the dangers of breast implants. Within a short time, the estimated one million women who had undergone surgery to enlarge their breasts knew--or thought they knew-the dangers of implants. Some were breast-cancer survivors who thought silicone implants would restore their feelings of femininity. Others simply sought the surgery for cosmetic reasons. All of them wondered whether their health had been sacrificed to the altar of corp orate America's search for profits.For Troutwine, a Portland lawyer known for crusading on behalf of women, the broadcast seemed like a call to action. If Connie Chung could convince Middle America that giant corporations had ruined women's lives, surely Troutwine could win substantial judgments for their clients' pain and suffering. Two months later, there was even more good news for those who wanted to take the manufacturers to task. The Food and Drug Administration declared a moratorium on silicone implants until manufacturers could prove they were safe. Since then, the silicone gel-filled capsules have been placed inside women's chests only under very limited circumstances.A legal practitioner who specializes in mass torts--cases in which hundreds if not thousands of people make similar claims--Troutwine envisioned big settlement checks for her clients and a nice payoff for her law firm. In the next few years, she and Michael Williams, her husband and law partner, made a calculated gamble, accepting nearly 800 breast-implant cases in their tiny practice. Five years later, Williams and Troutwine's wager has gone sour. What once looked like a chance for women to win a victory against Big Bad Corporate America has turned into a tragedy for all involved--the women, their lawyers and, if the latest research is to be believed, even the manufacturers.Instead of holding victory parties for its clients, Williams and Troutwine is fighting off its own creditors. Instead of bringing manufacturers to their knees, the sheer volume of claims drove some to bankruptcy, leaving clients in the lurch. Instead of singing the praises of their lawyers, women across the country are criticizing them.In the end, the biggest losers are women like Joanne Robbins. In the five years since she first began to suspect that leaking silicone had poisoned her body, Robbins has learned that her breast-implant lawsuit won't compensate her for her illnesses. It won't even cover her costs. In order to build her case, she spent an estimated $20,000 on surgery to remove the implants, scientists to test her ti ssue and specialists to diagnose her illnesses, but she won't get a penny in settlement. Now she wonders whether it was the implants or the promises of big settlements by crusading lawyers that made her feel so sick. "I often wonder," Robbins says, "if I never heard a word about how I was going to get all this money, whether I would've gotten better faster." Robbins first noticed a problem in the summer of 1992. "I felt like someone was pouring hot oil into my chest," the 52-year-old Southern Oregon woman says. Next came a "grinding" sensation throughout her body. Then her eyes started to fail, and her memory faltered. She was overcome by weakness-an exhaustion so profound, she says, that she "couldn't even lift a frying pan."A petite but tough horse trainer, Robbins can't abide people who complain about illness. This, however, was overwhelming. Robbins' husband left his job as an accountant to take care of her.In 1993, an ultrasound showed that Robbins' breast implants-which she received in 1977 after a mastectomy-had ruptured. Silicone was oozing through her body. Finally, she thought she had an answer. She began to have hope. But she was also in need of help. She believed she was the victim of a manufacturer's mistake, if not malfeasance. If she were to hold this manufacturer accountable, she would need a lawyer she could trust.Like hundreds of other women, she turned to Gayle Troutwine. "She told me not to worry about the lawsuit, to take care of myself," Robbins told WW. "I felt so safe and protected. Boy, did I find out." For Williams and Troutwine, the war against silicone began in 1983, when the firm agreed to represent an Oregon woman with implants. At that time, there was relatively little fanfare. Anti-implant hysteria hadn't yet afflicted the national media, the scientists hadn't spoken and the victims had yet to tell their stories. "It was the third breast-implant case filed in the history of the world," Tro utwine says. But with this case-in which the manufacturer settled out of court and a jury awarded a $150,000 verdict against the doctor in 1987-she "became convinced it was a horrible product."Troutwine's interest intensified as she heard more horror stories: Tales of young women crippled by rheumatoid arthritis; breast-cancer survivors now battling new diseases like sclerodoma and lupus; once-hardy women debilitated by constant joint pain. The cause was politically attractive to lawyers like Troutwine who "represent women and children mostly,'" she explains.The cases were appealing for other reasons, as well. Every lawsuit needs a "bad guy," and in these cases, the bad guys-multinational corporations like Dow Corning and 3M-were easy to pick out and easier still to despise.With a million breast-implant recipients across the country, it looked to lawyers like these silicone "time bombs," as they were labeled, could be the next big thing. The manufacturers' deep pockets would make the work worthwhile. Williams and Troutwine was well-prepared for the challenge. By the mid '80s, when the firm took on the manufacturers of the Dalkon Shield, it had already developed a taste for mass torts. In these cases, the firm fought a successful battle on behalf of 330 Oregon women who said the contraceptive devices caused a variety of pelvic inflammatory diseases. The manufacturer, A. H. Robbins, was forced i nto bankruptcy, but not before agreeing to a hefty settlement. After Dalkon Shield, Williams and Troutwine jumped into other mass torts with zeal. On behalf of some 300 health-care workers, the law firm took on the Oregon state government for failing to pay minimum wage. In 1991 the firm won speedy settlements-and an unheard-of apology-from the manufacturer of tainted capsules of L-Tryptophan.Today, the husband-and-wife team has perfected the routine. Williams handles the science. A big bear of a man with an abundance of gray hair, he graduated magna cum laude from Harvard Law, and is by all accounts a brilliant legal mind. In the breast-implant cases, his job is to be not only a skilled litigator but also an epidemiologist, rheumatologist and chemist."He's one of the best, if not the best, authority on all the scientific issues," says noted Eugene plaintiff's lawyer Art Johnson. "He has a unique capacity to study a great amount of data and organize it in his mind." Williams has traveled all over the country to help other lawyers with the technical end of their implant cases.Where Williams is pure intellect, Troutwine plays different roles, acting as preacher, publicist and political operative for her clients. Tall, attractive and perfectly coiffed, Troutwine is equal parts traditional feminine softness and masculine power. The combination is effective."She's astute," one lawyer who used to work with the firm said. "I mean, politically astute." Troutwine's savvy won her a spot on the breast-implant plaintiff's steering committee, a group of 17 lawyers who make strategic decisions affecting several hundred thousand cases worldwide. Troutwine's main task on the committee was to force Bristol Meyers to turn over corporate documents. She was also ch arged with taking sworn testimony from corporate executives for use in thousands of cases.The pair devotes tremendous time and effort to this work. Troutwine says her husband jets off to other trials so often that he seems to come home "just to pick up new dry cleaning.""When you're at Williams and Troutwine, you feel like you're on this mission," says Kathryn Stebner, a lawyer who used to work for the firm. "I consider myself a public-interest lawyer. I would never work for a place for 4 1/2 years, devoting 12 hours a day, seven days a week, just for the money. It's not about that. It's about fighting big corporations that screw women." Product-liability lawsuits have a tendency to make a company ruthless, forcing a plaintiff's lawyer to spend thousands of hours on research, negotiating and court time. Some lawyers won't touch cases like this. "There may be a pot of gold at the end of the rainbow," says Bend lawyer Bruce Brothers, "but it's an awfully long rainbow."For this reason, a lawyer who focuses on major product-liability cases usually has many clients, each one piggybacking on the research done for another, each one earning the lawyer additional fees.When it decided to take on breast-implant cases, Williams and Troutwine already knew the tricks to juggling hundreds of clients. The firm ran newspaper advertisements in The Oregonian soliciting plaintiffs. It sponsored huge conferences, filling the Oregon Convention Center several times with potential clients who listened to experts talk about the symptoms of silicone-related illnesses and how mu ch money they could expect to win. Altogether, Williams and Troutwine took on 800 clients, so many that it communicated with them not through personal appointments but through newsletters. The firm asked its clients for photos so it could keep track of names and faces.More than anything else, the overwhelming number of clients could be the reason breast implant litigation has faltered. Understanding breast-implant litigation can feel like learning a new language filled with medical terminology, acronyms and legal terms. The most important thing to remember, however, is that women who filed claims against breast-implant manufacturers fall into two categories: the "opt ins" and the "opt outs."Those who have chosen to go it alone and have filed lawsuits in state or federal courts are the "opt outs." Generally, these are women who seem to have strong cases and think they can win sympathy-and a substantial verdict-from a jury. Those who have joined the class-action to take part in what is known as the "global settlement" are the "opt ins." These women have chosen not to go to court, but were assured a settlement based on the nature of their alleged injuries and their age.For Joanne Robbins, the decision was difficult. When she first visited Williams and Troutwine, in July 1993, she was very ill. She told them she didn't want to go through the stress of a lawsuit unless there was a good chance she could win. They told her that her case was good, worth perhaps $600,000 to $1 million in damages if she opted out.Robbins followed her attorneys' instructions. She had her implants removed, as required for a good case, and delivered them to Williams and Troutwine's law offices less than a month after her first appointment. Seven months later, Troutwine wrote to Robbins urging her to have her implants removed."The problem was they took on too many clients," said Robbins, who quickly let Troutwine know that she had long ago sent her the implants. "I was one of the ones that got stepped on."The firm filed suit against Dow Corning on Robbins' behalf in June 1994. But in late February 1995, 19 months after she had hired the lawyers, they called to tell her they were mistaken. Williams and Troutwine didn't really know who made her implants, a crucial piece of information-without a manufacturer, she didn't have a case.By this point, Robbins says, she had spent $20,000 going to rheumatologists, getting blood work and having the implants removed. She had hired one of the best lawyers in the field, but, years later, still has no idea who made her implants."For three years we were living on our savings," she says. "All of a sudden I wake up one day and they tell me I don't have a case." She filed a complaint with the Oregon State Bar against Williams and Troutwine.After a lengthy investigation, the bar determined that the firm had not violated any rules of legal ethics. Women who chose to opt in to the class action faced different problems than Joanne Robbins did. They didn't expect a lot of attention from their lawyers. They just wanted to get out from under their bills and focus on their health. In 1994, a federal judge authorized an agreement in which several manufacturers would make $4.25 billion available to cover settlements with breast-implant plaintiffs who had opted in. The lawyers, including Williams and Troutwine, would share $1 billion of that sum.Qualifying for a settlement check was a relatively simple matter for the plaintiffs, compared with taking a case to court. Women didn't need to show that their implants were ruptured or even who made them. All they needed was a diagnosis from a rheumatologist. The diagnosis and necessary blood tests might cost as much as a few thousand dollars, but the payout seemed worth it. Depending on age and symptoms, each claimant would get between $140,000 and $1.4 million under the terms of this deal.Hundreds of thousands of women signed up, dooming the settlement to failure. In May, Dow Corning, the major contributor, filed for Chapter 11 bankruptcy, and the federal judge overseeing the class action threw out the settlement. Cox Uphoff and Mentor, two other implant manufacturers, say they also went broke as a result of the flood of claims.After the deal was tossed, the remaining companies came up with new deals, which the judge authorized. They were not nearly so generous. There is no money designated for attorney's fees, so the women have to pay their lawyers out of their settlements. Claimants have to show which company made their implants, which is sometimes a difficult task. Some companies, like Cox Uphoff, are so broke that th ey won't pay anything. Anyone with Dow Corning implants must wait in line at bankruptcy court with all the company's other creditors. Even for those whose doctors happened to use one of the remaining brands of implants, the payouts are substantially lower than anticipated-$5,000 to $100,000.The comparison is stark. According to Troutwine, under the old settlement, a 36-year-old woman with moderately serious health problems would have received $700,000, no matter which company made her implants. Her legal fees would have come from a separate fund.Under the new settlement, she would get between $10,000 and $50,000, if she could prove that at least one set of implants (some of the women have had several sets because of ruptures) were manufactured by Baxter, Bristol Meyers or 3M. She must pay attorney fees out of her settlement check."Some of these women have liens that are more than what they'll get," Troutwine said. "The thing I'm saddest about with the global settlement is the whole process. I wish to God that if the women were only going to get $5,000, that that's what they were told from the beginning." What may have been the final blow to some Oregon breast-implant plaintiffs came in December 1996, when U.S. District Court Judge Robert Jones issued a devastating ruling barring any expert testimony linking the illnesses with implants. He made this decision after a lengthy hearing in which each side presented its best scientific evidence. According to Jones, Williams and Troutwine's evidence came up short.The ruling was only preliminary, but if it stands, the 80-some women who are scheduled for trial in Jones' court can only claim "localized" illnesses. They can't argue that silicone is responsible for their connective tissue diseases, which are more serious and hence worth more money. The decision may pave the way for others. Williams and Troutwine, like other law firms across the country, has its own problems.The new settlement tops the list. Under this agreement, the firm's attorney fees are capped at 10 percent, and its costs are limited to another 10 percent. Say a woman receives a $10,000 settlement-Williams and Troutwine can take just $2,000. If she gets $379-the amount some women with Mentor implants have received-Williams and Troutwine gets just over $70.Last year, Multnomah County Circuit Court Judge Frank Bearden threw out a $1.5 million jury verdict in favor of Troutwine's client, Lori Shaw, because she unfairly prejudiced the jury against the defendant, Bristol-Meyers Squibb. Then, in the past year, creditors have filed two lawsuits against the firm charging nonpayment of bills. One, which has since been settled, involved a court-reporting firm that claimed the lawyers owed it more than $28,000. Eugene lawyer Brothers, who has referred many cases to Williams and Troutwine, says he filed suit last month because the firm didn't pay him a customary referral fee."I think they've spent an awful lot of money on these cases and a whole lot of things happened that meant all of a sudden their expenses have continued but their income hasn't kept up," Brothers said. "Maybe the pressure is getting to Gayle, I don't know. It's a shame, because she does fight the good fight." Williams acknowledges that it hasn't been easy. "Things were tough," he says. "We were on the brink of bankruptcy for a while.""What's happening to them is happening to everyone in the United States," Stebner says. "They're settling for less money now. No one's getting much doing these cases."Gayle Troutwine won't admit defeat, but says that at this point, she and Williams are trying to "diversify" their business. They advertise on bus benches, and they sent out a mass mailing asking for referrals on complex cases. Nonetheless, Troutwine still maintains that her firm is getting along. "This is about the women," she insists, "and it is unfortunate for the women. The whole thing's a tragedy, even when you get to the kernel of why they got implants in the first place. We buy into someone else's idea of what our bodies are supposed to look like."