Closing Arguments


In this February 1994 jury trial against the implant manufacturer, Gladys Laas was awarded $5.2 million in compensatory damages. Her husband was awarded $1 million for loss of consortium. Dow Corning was liable for 80% of the verdict. Dow Chemical was liable for the remaining 20%.

The jury found Dow Corning guilty of misrepresentation and engaging in a false, misleading or deceptive act or practice that was a producing cause of the plaintiff's injuries.

The finding against Dow Chemical was on the count of aiding and abetting. This was later overturned and Dow Corning assumed 100% of the liability.


CAUSE NO. 93-04266
GLADYS J. LAAS, ET AL VS. DOW CORNING CORPORATION, ET AL
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
157TH JUDICIAL DISTRICT

CAUSE NO. 94-19485
JENNIFER H. LADNER VS. DOW CORNING CORPORATION, ET AL
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
157TH JUDICIAL DISTRICT

CLOSING ARGUMENTS

VOLUME 2
FEBRUARY 1, 1995

APPEARANCES
For the Plaintiffs:
Richard Mithoff
Tommy Jacks
MITHOFF & JACKS
One Allen Center Penthouse
Houston, Texas 77002

John O'Quinn
Rick Laminack
Tom Pirtle
O'QUINN, KERENSKY, MCANINCH & LAMINACK
2300 Lyric Centre Bldg.
440 Louisiana
Houston, Texas 77002

Ed Blizzard
WILLIAMS, BLIZZARD & McCARTHY
440 Louisiana, Suite 1710
Houston, Texas 77002


For the Defendants:
Richard Josephson
Mike Graham
BAKER & BOTTS
300 One Shell Plaza
Houston, TX 77002

Richard Sheehy
McFALL, SHERWOOD & SHEEHY
909 Fannin, Suite 2500
Houston, TX 77010

David Bernick
KIRKLAND & ELLIS
200 East Randolph Drive
Chicago, IL 60601

Darrell M. Grams
WISE & MARSAC
11th Floor Buhl Building
Detroit, Michigan 48226


BE IT REMEMBERED that upon this the 1st day of February, 1995, A.D., the above entitled and numbered cause came on for hearing before the Honorable Michael H. Schneider, Judge of the 157th District Court of Harris County, Texas; and the following proceedings were had, viz:

CLOSING ARGUMENTS FOR THE PLAINTIFFS

THE COURT: All right. Mr. Bailiff, would you please escort the jury in? Please rise.

(The following proceedings were had in open court with the jury present.)

THE COURT: Please be seated, ladies and gentlemen. All right. Ladies and gentlemen, at this time, at this stage of the argument, the Plaintiffs' lawyers have the right to respond.

MR. MITHOFF: Thank you, Your Honor. Ladies and gentlemen, I have just a few minutes to talk with you about some of what Mr. Bernick has told you and about some of what Mr. Josephson has told you.

Mr. Bernick said to you that the first time that the question of the measurement of the bleed from Jenny Ladner's implant was raised was during oral agreement, and that is not true. I asked his witness, Dr. Moalli, his expert, whether he, Dr. Moalli, had calculated the actual amount of bleed from Jenny Ladner's implant; and he said no, that he had not. I asked him then whether or not he could tell me whether one gram equals one cc, because I had seen those measurements used interchangeably in Dow Corning documents. And he said yes, for purposes of measuring gel bleed, that is true. I then asked him if there's no leak in the envelope, does that mean that the saline would not get out? And he said yes. And I said, "Can we understand that anything that escapes then is gel bleed?" And he said yes. And so after that testimony, I went and I checked the records, because I was curious, since Dr. Moalli hadn't measured it, to see what those results were. And what the results were when you subtract, as I indicated earlier, the volume on the right and left side at the time of surgery and the measurement at the time that Dow Corning did its own inspection at the time they did their inspection, you have a difference of 13 on the left and 2 right, or a total of 33 cc's or 33 grams. No secret there. Mr. Bernick could have done that calculation. Dr. Moalli, more importantly, could have done that calculation. Mr. Bernick talks about breast implants and disease. He covered that subject and he said the T cell proliferation test doesn't tell you whether a woman is sick, and that's true. It tells you why she's sick, but it doesn't tell you whether she's sick. He said elevated ANAs don't tell you that a woman is sick, and that is true. You can take each and every one of these tests and isolate them and ask the question, "Does that test, standing alone, tell you whether the woman is sick or not?" And the answer is no. That test standing alone will not tell you that. Mr. Bernick takes each brick and examines each brick and says, "This brick does not make a wall." But what we have to do when we're looking at trying to figure out the cause of the disease in these women is look at the whole picture. We look at the ANAs, antinuclear antibodies. We look at the T cell proliferation tests. We look at the symptoms. We look at the timing of the symptoms. That's why we have doctors examine the patients.

Scientists can tell us that it's true that individual pieces of information -- and that is important. And studies are important and all of these individual pieces of information are important. But when we want to see the total picture, the whole picture , we have a doctor examine the woman and put the picture together. And so while Mr. Bernick wants to examine each and every brick, we're asking you simply to look at the entire wall and see the entire picture. He talks about the studies. He mentioned the Mayo study, the Schustermann study, and the Strom study. The Mayo study has zero lupus patients in the study. Zero. It tell us nothing about lupus. The Strom study, which did study lupus, has this important qualification: "The prevalence of augmentation mammoplasty was lower i n the early 1980s than in the early 1990s, thus limiting our sample size. And the limited power of this study is clearly its biggest limitation." Each of these studies is saying, "We are limited by the sample size." Mr. Bernick wants to leave the impression that what these studies say is, "There is no association between breast implants and disease."That is a false statement. What these studies say is, "We found no association within this limited sample size." The Mayo Clinic study is the best example of exactly what that limited power is all about. They say, "We had limited power to detect an increased risk of rare connective tissue diseases." Lupus is a rare connective tissue disease. They go on to say, "We would need, by our calculation, 62,000 women with implants and 124,000 without implants." They didn't have a big enough sample size. This may be an important start in the study of the science that Mr. Bernick wants to talk about, but the study itself indicates its own limitations. The Coleman study, which Mr. Bernick conveniently forgot to talk about, is in fact, an epidemiology study.

MR. BERNICK: I object, Your Honor. That's not a controlled study. That's a misrepresentation to the Court.

MR. MITHOFF: It is indeed, Your Honor.

THE COURT: All right, sir. It will be for the jury to decide after listening to the evidence.

MR. MITHOFF: This indeed is a study involving 1167 women and it is indeed a controlled study. And it was, in part, sponsored by the FDA and, in part, by the Nation al Cancer Institute. And it finds to a 95 to 99 percent probability that there is a causal connection between breast implant disease or breast implants and disease. So when Mr. Bernick tells you there is no study or no association, that is false. He said in Dr. Ladner's case, "How much bleed?" They stuck to that half a cc a year, even though an actual measurement would show otherwise. He said, "Is there evidence of migration?" He overlooks the T cell proliferation test, which, in fact, shows silicone in the body. Why does he overlook that? Why does he overlook the actual records that Dow Corning, when they measured it, show us how much bleed loss? Why does he overlook that? What does he tell you about lupus?

If the studies are right, he says the answer is no. All the studies tell us is there is no association in the limited power of the sample size chosen. And two of the three studies he chooses never studied lupus because it wasn't in the sample. He says that Dr. Spindler's atypical lupus diagn osis was not in the letter. That's true. It was in the follow-up entry in his office records. And I went back and asked him on redirect examination, "Dr. Spindler, did you make the entry of atypical lupus in your subsequent entry in your records?" And he said yes and we demonstrated it and Mr. Bernick didn't read the rest of the examination to you. He overlooks that. He says there is no indication that she was definitively better, that is, that Dr. Ladner was definitively better after implant removal. That was never the testimony. The testimony was that she improved for a brief period of time and then became worse. Why does he overlook this? He says, "We rely on Blackburn," "we" being Mr. Bernick. This is the same Dr. Blackburn who manipulated his own study to achieve the result he wanted. Of course they rely on him. Is that someone you would rely on for information important to you?

What about all this scientific certainty? We cannot perform experiments on 400,000 women by injecting them intentionally with silicone to see what happens. We can't implant a TV screen in the body of these women and actually trace the silicone as it comes out of the implant and goes into the cells and into the muscles. All we can do is the best that we can do under our system of law and the medicine that we have; and that is, to take the woman, diagnose her, look at the lab tests, look at the blood tests, take her history and put together an individual history and pi cture for her. And that's what we've done. That's what we've done. What about Dow Chemical? They say, "Well, we never designed and tested or manufactured a breast implant." Well, that's true. That's a red herring. No one ever said they did that. What we said was they designed and tested the materials, the materials that went into the breast implant. Dow Chemical says, "Well, these tests were not negligently done. No one ever proved they were negligently done." What we said was that the tests that they did do were never followed up on. They found migration, they found danger, and they never followed up on it. Another red herring. We brought Mr. Falla, a very nice gentleman. He did raise the only relevant question; and that is, "Why are we in this business?" But then what did Dow Chemical do to follow-up on his question? He heard about the Stern case. He wanted to know what they were doing. What do they do when Mr. Falla raises the question? Apparently nothing. He said stock ownership alone is not sufficient, and that is true. You are told by the judge that that is not enough standing alone to make them liable. But it is stock ownership plus all of this other evidence of what they have done.

THE COURT: Two minutes.

MR. MITHOFF: He says that no one criticizes V. K. Rowe. No one criticizes him personally. What we were talking about is the studies that he did in the early '50s that should have alerted Dow Corning and others to the dangers and no one followed those studies. Finally, he says, "What have we done lately?" That's Mr. Josephson's defense. "What is it we've done lately?" Well, the best that we can point to is a document that you have seen in evidence. It's dated June of 1991. This is the memo regarding the cover-up. This is a Dow Corning memo. They say, "The issue of cover-up is going well from a long-term perspective ," an interesting subject for people to be debating inside an ethical corporation. "It has become obvious to me that what is at risk here is somewhere between 50,000,000 and 500,000,000," another interesting debate for a company that has no liability. Then they say, "The place we have the biggest hole still missing and two weeks behind from the time we got the word from Keith McKennan in this whole arena of getting a patient grass roots movement going." That's significant. Keith McKennan, at that time, the evidence will show, was with Dow Chemical. So at the very time they're talking about the issue of cove r-up, Keith McKennan is still with Dow Chemical. This is prior to the time that he moves to Dow Corning. There is so much that is beyond our control. All of us have said at one time or another --we've seen something on TV, we've read something in the newspaper. We've said, "I just wish I could do something about that," whether it's crime, whether it's drugs, whether it's a problem at school or a problem with disease. There's so much that we have no control over. But you twelve right now have an oppo rtunity that comes to very, very few of us in a lifetime. You have an opportunity now to make a difference. You have an opportunity to sift through what you have heard and what you have watched and come to a true and just verdict and say by your verdict, "We believe you, Jenny Ladner, we believe you, Gladys Laas, when you tell us what has happened to you. We believe in ethics, we believe in integrity and we believe in justice being done." If you can do that, as I know you will, you will have done your dut y to these parties, and all of them; to this judge and the majesty of the law that he represents; and most importantly, perhaps, to yourselves and to those who will follow you. Please do justice by these parties. Please do not let this opportunity pass you by. Thank you very much.

THE COURT: Thank you, sir. Mr. O'Quinn.

MR. O'QUINN: Let me find something here, Your Honor. I guess this is the hardest time to ever ask a jury to listen to more argument, but I'm going to ask you. I'm going to try not to take eighteen minutes.I can't answer everything that's been said in two and a half hours, but there are some things that I want to speak to you about before we close this book. In a very real sense, listening to the argument of Dow's lawyer, Bernick, we got a glimpse of The Bernick University, Dow University. It is a fervor that dismisses and rejects all evidence that is not supportive of Dow. No one said we were going to come to court and all the evidence was going to be one way. He completely dismisses it. He says, "Let's talk about science today. Trust me. Trust Dow. Science today shows everything is okay." Of course, most of the science today is Dow investigating Dow. If science today has proven this product to be safe, Dow would still be selling it, wouldn't they? If science today has proven this product to be safe, the FDA wouldn't have investigated it like they did, would they? If science today has proven this product to be safe, Nir Kossovsky, who is a genius and an ethical man without question -- and the same is true about Frank Lappe', hired by the FDA to help the FDA come up with the answer -- if the science proved this prod uct was so safe, they would have given a thumbs up instead of a thumbs down.

MR. BERNICK: Objection to that, Your Honor. We have not had an opportunity to explore what the FDA did and did not do--

MR. O'QUINN: I'm talking about what Kossovsky did and what Lappe' did. And they sat in this chair and they said, "Thumbs down." THE COURT: All right, sir. Let's make clear what we're talking about. And also, refer to Dow Corning and Dow Chemical, please, sir.

MR. O'QUINN: Okay. Common sense. Common sense. That is the main thing you twelve people represent, a lot of years of common sense and being able to see B.S. from the truth. If it was all safe, none of this would be going on. So he says, "Well, now, if you are going to trust me on that point, trust me to do this. Let me, David Bernick, diagnose what's wrong with Gladys Laas." Isn't that what he spent about an hour doing? He has no medical license. He's never examined her. He takes bits and pieces of this and that. And he said, "here is the Dow/Bernick diagnosis of Mrs. Laas." Well, he left a lot out of his analysis. Gladys Laas lived for 56 years with no neurological disease, no neurological disorder, no immune system problems, out-working most of her coworkers. Barbara Feltman, who is a young woman, said, "Back before 1991, Gladys Laas co uld run circles around us." And when she was 57 and her implants were ruptured, her health goes in the toilet. He didn't talk about that, did he? Common sense. Circumstantial evidence. It all fits. It ties together. And all these efforts to shuffle these bits and pieces around cannot escape the fundamental fact that she was well until her implants ruptured.I mean, in an effort to diagnose, we even heard about Barbara Bush. Apparently he thinks Barbara Bush has this condition that Dr. Ray talked about, depression. Let's assume it's true. Stand up, Gladys. Do you think Gladys Laas has the ability to get around like Barbara Bush? What's going on here? This is a woman who has profound disabilities. Even they admit it. They can't explain it, but they admit it. No one has come in -- don't you know with the millions they've spent, if they could find one piece of evidence that she does not have the disability that everyone has said she has -- she cannot work, she cannot get around, she does not leave her house exc ept to go to church on Sunday mornings -- they'd bring you that evidence? What she's told is the truth. What the witnesses who have supported her have told is the truth. And he can pick at these doctors all he wants to and say, "Well, they admitted that this was not significant or that was not significant." But what he does not acknowledge is the doctors, when it's all said and done and they look at all the evidence -- all the evidence, not little tiny bits and pieces, but all the evidence -- what do they say? Busch says Gladys Laas has a significant disease due to her implants. Dr. Burns says Gladys Laas has significant disease due to her implants. The Baylor College of Medicine and the Hermann Hospital doctors -- not just Dr. Patten. Numerous others have been involved -- says Gladys Laas has a significant neurological disease due to her implants. You'll have the medical records. You can reread them again to yourself. You can read the discharge summaries from the hospitals. Dr. Puszkin, pathologist, Mount Sinai Hospital, came down and he said, "This is a tissue slide of Gladys Laas and it shows silicone outside of the capsule." Remember their own test, their own test which said that if you get silicone loose in the body of a test animal, even scraping it out, you can't get much more than 50 percent. It gets absorbed. So Bernick, who is apparently now Dow's final doctor to testify, said, "There's just absolutely no evidence. There's just never been any evidence that an implant can degrade." Well, he forgot about, I guess, their own document in 1971 when this fellow was writing a document inside Dow Corning to say the terms "Friable," "disintegration" and "degradation" are being used frequently to describe the condition of the hu mble oath of removed silastic mammary prostheses. I guess he forgot the photographs of Mrs. Laas' implants. That is a degraded-looking thing to me.

The implants are in evidence. I didn't pull them out. They would have been running all over the place. If you want to, you'll have them. You can take them out and you can look at them yourself. They absolutely have just totally come apart. And what about what Tom Talcott said in '76, just a year before these implants were put in her? This is a Dow Corning document, a secret inside document. We got it by subpoena. A large number of people spent a lot of time discussing envelope quality. We end up saying the envelopes were, quote, "good enough while looking at gross thin spots and flaws in the form of significant bubbles. When will we learn?" Apparently, this has been a continuing problem. When will we learn at Dow Corning that making a product, quote, "just good enough" almost always leads to products that are not quite good enough? I guess Bernick just forgot that evidence. Okay. Why Lois Duel? He says, "We brought the right people. We brought Lois Duel." Well, did Lois Duel design any implants? No. Did Lois Duel test any implants? No. Did Lois Duel make any implants? No. All Lois Duel has done is meet with lawyers about how to write up the new package insert to be buried in a box and help the lawyers put together the defense. They have not brought the right people. They have not brought the people that had the power to say, "We will tell Gladys Laas that what we told her in the '70s is not true." Where is that guy? I want to find out why he didn't tell her. What about the guy that has the power to say, "We will not sell this product any more until we straighten out the testing, or at least we'll tell you." There's somebody in that company that did that. It's the product manager, probably. Dow Chemical. I told you I wanted to talk about Dow Chemical and I can't restrain myself. Sorry, Richard. He gets up here and he says, "This is the first time we've been in trial." Well, let me tell you this. If you don't hear anything else I tell you, please listen to this. We cannot get justice in this case if you let Dow Chemical go. $500,000,000 has moved from Dow Corning to Dow Chemical and Corning, Inc. in the last six years. Remember, the man admitted 250,000 moved to Dow Chemical? The money is up there. We cannot get justice if they're let go. Now, let's look at the issues. Question No.7 asks about, "Was Dow negligent in any way regarding research, consulting or testing services?" In 1962, Dow Corning started selling implants, silicone breast implants. What was the situation in 1962? In 1962, Dow Corning didn't have a lab, a research facility at all. It was all done in-house at Dow Chemical, Building 1803. They didn't get a toxicology lab until the '70s. So when this product was put on the market, the only testing that was being done was being done inside the Dow Chemical lab. So they knew what was being tested, they knew wha t had been tested and not tested, and they knew the stuff was being put in silicone breast implants. Give me a break. They knew that was going on. Now, our beef -- and here's the point -- is not the little dinky tests they ran; they ran them negligently. Sure, they probably did these little dinky tests just fine. Our beef is they knew that they had not done all the testing. What if somebody says, "Will you test my car? I'm fixing to take a trip." And you go and the person you ask to do this goes and looks at the right front tire and that's all he looks at. You get on the road and the left rear tire blows out and you have a terrible calamity. You say, "You told me you tested the car." "Oh, I did test the car. I tested the right front tire." Dow Chemical knew that's all they had done is test the right front tire; and they were negligent. They were negligent knowing that was the only testing that was being done by them. They did not say, "Time out. Wait a second. Y'all are not putting this stuff in people's bodies without testing all four tires and everything else about the automobile."

That was the negligence. And they had the power to do that. They had the power to replace the president any time they wanted and they had the power to say, "You're going to do all the testing. We'll get it done and put it on your account or something." They were in it up to their eyes. Okay. They say Mrs. Laas and Dr. Ladner are deserving people. They're more than deserving people. They're that. They paid their dues of citizenship. They've lived their lives according to the rules. Their ethics have been of the highest. They raised their kids, did their jibs, good citizens. But beyond that, they have been monstrously wronged. He never even explained to you why they didn't tell then in the '80s, why they didn't tell her at least in the'80s, give her a chance. That's the one -- they can't even explain that. You bet they're deserving. And the only way that these two deserving people can get justice is as follows. I'm going to tell you. Questions 1 through 10 must be answered "yes," and particularly as to Dow Chemical. Question 11 says apportion the responsibility, and I agree with Mr. Mithoff, 50/50. The other three questions are damages. I suggested that under the circumstances, the damages to Gladys Laas should be at least $10,000,000. He didn't quibble one time about that. I say it should be 10,000,000. The damages as to Bob Laas should be significantly less. I believe it should be at least $1,000,000.

You may disagree with me, which is your right. You may say it should be more, less, or the same. You decide, but you decide an amount that when this is finished you know two or three things. You have fully compensated Mrs. Laas for what was done to her and Mr. Laas. And you have rendered the verdict that makes it real clear that people are not to be treated like this. He talked about enhanced damages. Their damages are not to be limited to their economic losses, so I don't know what he's talk ing about. They are to include the pain, the mental anguish, the loss of the enjoyment of their life. There's more to life than working. There's more to life than going to the doctor and paying doctor bills.

THE COURT: All right. Two minutes.

MR. O'QUINN: Thank you, Your Honor. When you read the damage question, read it closely. The judge gives you the rules. He has told you what to consider and he has told you not to consider anything else. We are not yet talking about the punitive damages. I am talking about full compensation for what they did when they ruined this fine, fine woman's life. Thank you very much.

THE COURT: All right. I want to thank all the attorneys for your argument today. Ladies and gentlemen, if you will take your charge, we'll read the last two pages.



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