(The following rather lengthy article,
written by Jim Szaller, and
 reprinted from Ohio Trial, Vol. 9, Issue 4, Winter 1999,
chronicles Brown & Szaller's involvement
in the Dalkon Shield Litigation.)

ONE LAWYER'S 25 YEAR JOURNEY:

It began 25 years ago. The years have passed swiftly, and the journey has taken me to the United States Supreme Court, the Ohio legislature, the Ohio Supreme Court, and numerous state and federal courts in between. The documents amassed are mammoth, filling dozens and dozens of lateral file drawers and stretching hard disk drives to their breaking point. And all of it about a little piece of plastic, a string, and bugs.

For me, it began in a real estate office. For women who used it, it began with assurances that the little piece of plastic was safe, and the answer to their contraceptive concerns. When it ended, many of the women were sterile, or lost babies through miscarriage or ectopic pregnancy. And I was a lawyer, and 25 years older.

The office that I'm sitting in today is quite unlike the office in which I sat those many years ago. I was not a lawyer then, I sold real estate (fn. 1) to pay my way through law school. The office was sparse, situated directly across the hall from a suite of offices furnished more elegantly, occupied by lawyers. The lawyers knew I was a law student, and an editor on the Law Review. One of those lawyers (fn. 2) posed the question -- "What do you know about a product called a Dalkon Shield?" -- that began my journey and shaped the focus of my professional life for a quarter of a century.

To answer his question, I, and another member of the Law Review, Walter Lee McCombs, dug and dug, and with the little we found wrote a Law Review article. The article took six months to research and write, and appeared in the Cleveland State Law Review in early 1975. I graduated that year, and was hired by a well-respected medium-sized law firm, Metzenbaum, Gaines & Stern. My focus quickly became product liability when a number of "Dalkon Shield clients" made their way to the firm, each referred by Ohio attorneys who had read the Law Review article. The 18 clients that came in 1975 were among the few hundred represented by attorneys nationwide when that same year the Judicial Panel on Multidistrict Litigation (MDL) (fn. 3) consolidated all cases in the country for pretrial discovery. The MDL usurping of the firm's right to conduct its own discovery was the first of a number of occasions when others took my right to control my client's destinies. But that time it was good.

MDL was a gift to all plaintiffs' lawyers, and a bane to Robins. Indeed, if the Judicial Panel had not consolidated all Dalkon Shield cases in 1975, I doubt the A.H. Robins Company would have sought bankruptcy protection a decade later. By consolidating the cases for pretrial discovery, a most competent and determined lawyer from Wichita, Kansas named Bradley Post was given carte blanche authority by a federal court judge to delve into the documents of Robins and depose its employees. With his doggedness, he perused over 300,000 documents, selecting approximately 3600 from which the story of the Dalkon Shield IUD and the company that fraudulently and recklessly promoted it would eventually be told in courtrooms throughout the world. Had he not invaded Robins' document sanctum, there would not have been available for attorneys world-wide a ready-to-use set of incriminating documents and depositions. Without MDL pretrial discovery, all plaintiffs' attorneys would have had the individual responsibility and burden of conducting their own discovery. Instead, handed to each was a work product which enabled them to become knowledgeable and prepared, with minimal effort.

MDL pretrial discovery took place in Wichita, Kansas under the supervision of U.S. District Court Judge Frank G. Theis, a kind, softspoken, impartial jurist. Judge Theis' rulings became the second key which, coupled with Bradley's doggedness, opened the lock of secrecy of the Robins Company and made the truths available to juries worldwide. When MDL depositions first commenced, each employee disavowed knowledge of information contained in any document not personally authored or received. The result was a thoroughly disjointed story that was impossible to present because so many witnesses needed to testify for the story to be cohesive and complete. In response, Judge Theis upheld Bradley's use of Robins' documents to interrogate Robins' employees in deposition, even if the employee had neither seen nor authored the document. Judge Theis refused to allow Robins to skate free of its injustices by employee evasiveness in depositions. Judge Theis perceived that if the communications and written decisions of Robins' employees were ". . . cloaked with inadmissibility on the basis of the hearsay rule, the corporate forum [would succeed] in not only protecting its shareholders, but also itself from liability for its mistakes." (fn. 4) With Judge Theis' rulings, the Robins story could now be told.

The majority of the MDL discovery depositions convened in Kansas were completed between 1975 and 1977. I attended approximately half of them. I spent so much time in those years in Kansas that I actually began to develop a Kansas social life. And I enjoyed working with Bradley, although our relationship started off a bit rocky. In 1975, only one lawyer in the country challenged him for the role of lead counsel in the multidistrict litigation to be centered in Kansas. Bradley, who practices in Wichita, Kansas, successfully tried the first case against Robins, Bookout v. A.H. Robins Company, (fn. 5) and succeeded in obtaining a $10,000 compensatory and $75,000 punitive award for his client. I had the audacity to think that because I had authored the only Law Review article then available concerning the Dalkon Shield, and was an associate in a law firm founded by a sitting United States Senator, (fn. 6) I and the firm should assume the coveted mantel of lead counsel. Thankfully the bid was unsuccessful. I can think of but a few who could have matched Bradley's accomplishments, and I do not hold myself among them.

Reflecting on those years, I realize I learned two important lessons from him, and my old law firm, lessons which enabled me to diligently and zealously represent Dalkon Shield clients over the next quarter of a century. First, no matter how immense the litigation, a position of control is needed to protect clients and direct their destiny. You cannot be a follower. Second, the attorney with immediate access to information (whether a defendant's document, a deposition, or a rule of law) will prevail. Control, and access to information, were always paramount as I represented those injured by the product that generated the largest personal injury litigation, with the exception of asbestos, in the history of the United States.

The attorney across the hall who asked me the question represented a woman who believed she had been injured by the product she used for temporary contraception called a Dalkon Shield intrauterine device (IUD). While using the device, she received a severe pelvic infection, precipitated into septic shock, and nearly died but for the heroic efforts of her physicians -- her infected uterus, fallopian tubes and ovaries were removed during emergency surgery to save her life. Now sterile, she and her lawyer were asking whether there was a relationship between the IUD, her infection, and her surgery.

I began with medical rather than legal research. I found that IUD's dated back thousands of years. For centuries Arabian and Turkish camel drivers inserted small stones into the uteri of their saddle camels to prevent copulation on long desert journeys. (fn. 7) The IUD is mentioned in both the Talmud and the writings of Hippocrates as a method of controlling fertility. (fn. 8) However, even in early historical stages there must have been doubts about the IUD's efficacy and safety, for it is reported that Cleopatra preferred the use of a sponge soaked in vinegar to the insertion of a device. (fn. 9) Although numerous attempts to design a safe and efficacious IUD were made in this country in the beginning of the century, it was not until the 1960's when Jack Lippee, M.D. designed the first modern IUD. (fn. 10) His device, molded from inert plastic and with an attached monofilament plastic tail, became the benchmark for all to follow and imitate.

With the advent of the Lippes Loop in the 1960's, interest was rekindled in IUD's as a method of contraception. The Dalkon Shield appeared on the market in 1971. As did all IUD's then being sold, the Dalkon Shield had an attached tailstring which served two purposes. First, if the woman inserted a finger in her vagina and felt the presence of the tailstring, she was assured the IUD was in place and that she had contraceptive protection. Second, the physician utilized the string to remove the IUD by simply pulling on it. But the tailstring of the Dalkon Shield was different from that of the Lippes Loop or the Saf-T-Coil, the two most popular IUD's marketed at that time in this country. Unlike them, the Dalkon Shield had a multifilament, rather than monofilament, tailstring. The Dalkon Shield tailstring, comprised of 200 - 400 individual plastic filaments encased in a plastic sheath, bridged the gap between the uterus and the vagina. Robins knew when it purchased the product that the tailstring had a tendency to "wick."

National marketing began in January of 1971, and Robins aggressively promoted the device as safe and effective. Insupportable, laudable claims were made while contraindications, side effects and cautions, contained in fine print on the next to last page of the "filecard" (the official labeling which accompanied the product) were seldom repeated in advertisements, even in diluted form. No warning was made in any promotional materials that the Dalkon Shield could cause widespread fulminating pelvic inflammatory disease, spontaneous or septic abortion, ectopic pregnancy, or infertility. The only warning given -- "sepsis may result from unclean technique" -- implied the treating physician's conduct, rather than the product, could harm the user.

Almost immediately after marketing began, Robins received complaints of severe pelvic infection. The tailstring was beginning to take its toll on users. Bacteria wicked from the vagina to the uterus was resulting in pelvic infection that caused PID, which in turn resulted in ectopic pregnancies and, for some, infertility. The longer the device remained in the body, the more bacteria could potentially enter the uterus, for the wicking process persisted. Compounding the situation was that the outer sheath of the Dalkon Shield tailstring, comprised of Nylon-6, underwent hydrolysis in the body. Wherever it disintegrated, holes in the sheath were created for bacteria to enter and exit. Finally, "fins" surrounding the body of the device dug into and often became embedded in the endometrium (the inner layer of the uterus), thus promoting the infectious process since the traumatized tissue was especially susceptible to bacteria.

There was eventually reported in the medical literature (fn. 15) a unique and dire medical condition being suffered by some women who conceived while the Dalkon Shield was in situ. The condition was known as "septic spontaneous abortion," and occurred when the Dalkon Shield tailstring, filled with bacteria, was pulled upward as the pregnant uterus expanded. The bacteria attacked the placenta and the woman, ending in death of the fetus and, in some cases, the woman. Prior to reports of septic abortion in wearers of the Dalkon Shield, physicians had only seen this life-threatening medical condition in situations of criminal abortion with subsequent serious pelvic infection. When it was first reported that some women wearing the Dalkon Shield had occasioned septic spontaneous abortions, no one, including Robins, offered any explanation of how and why it occurred in Dalkon Shield wearers. Indeed, no one but Robins could have offered any explanation, because Robins had never disclosed to anyone that the tailstring was multifilament, and that it wicked. A physician in New York, Howard J. Tatum, M.D., Ph.D., was the first person who, outside of Robins, learned that the Dalkon Shield tailstring was multifilament, and that it had a propensity to wick. It was he who, in 1975, performed simple laboratory tests to evidence wicking and explain how the Dalkon Shield was the causative factor in septic spontaneous abortion. His results were published in the medical literature in January and February 1975, (fn. 16) but the information came too late to be of help to women considering which IUD to use. The Robins Company had "voluntarily" withdrawn the product from the market in June 1974 under pressure from the FDA. (fn. 17)

Lawyers today take for granted their right to use the media to advertise, and to inform the public of defective products. That was not so 15 or 20 years ago. Lawyer advertising initially suggested little more than the attorney's competence and willingness to assist. As advertising became more prolific, it also became more aggressive. Soon, specific products were targeted. In the early 1980's, the Dalkon Shield became one of the first products to be the specific subject of lawyer advertising. (fn. 18) Advertisements, placed by a few law firms to reach huge mass audiences, included a depiction of the Dalkon Shield, and the representation that if the Dalkon Shield was worn and injury resulted, the user may be entitled to compensation. The injured appeared out of the woodwork.

Prior to the advertisements, even though lawsuits were still being filed against Robins, there was a certain levelling off, and I suspect in some areas of the country a reduction in the filings. Statutes of limitation in many jurisdictions rushed to expiration -- the product, after all, had been removed from the market in 1974 -- and media coverage was waning because the Dalkon Shield story was now dated. Even in Ohio, where no statute of limitations was available to Robins as a time-bar because as a foreign corporation in contravention of Ohio's tolling statute it had failed to register to do business in our state, (fn. 19) numerous claims were not being filed in the courthouse.

With the advent of mass advertising, things changed dramatically. Dalkon Shield litigation had gained a new foothold, and the media was the catapult. Robins was now faced with daily filings of Dalkon Shield claims, and the multinational corporation that had brought to the market so many useful products -- Robitussin, Chapstick -- slightly began to teeter. To compound matters, a federal district court judge, Miles Lord, consolidated a number of Dalkon Shield cases for trial in Minnesota. The consolidation of numerous cases countered and was inconsistent with Robins' double-pronged defense strategy of blaming the Dalkon Shield wearer for her own infection (i.e., sexually transmitted diseases often cause PID) and made trials so expensive that plaintiffs' attorneys from small firms could not afford to combat the legions of defense lawyers and experts.

In Ohio, a proposed consolidation of cases, and a consortium of plaintiffs' lawyers that could afford the time and expense of protracted litigation, forced numerous settlements from Robins. In 1983, in response to the backlog of Dalkon Shield cases pending in Ohio, Judge Wesley Brown, a federal judge from Wichita, Kansas, was temporarily transferred to Ohio to help resolve cases then pending in the southern district of Ohio. A number of very fine plaintiffs' attorneys, including Cy Wolske, Dave Deutsch, Denis Murphy, and others, represented the Dalkon Shield victims, as did Brown & Szaller. A motion to consolidate the cases was filed by us, collectively. Although the judge vacillated between granting and denying the consolidation, the threat of so many plaintiffs' lawyers working together against Robins was sufficient to cause Robins to buckle. Robins responded to our concerted effort by sending an Aetna adjuster to Columbus. The cases were resolved.

The firm in Minneapolis (fn. 20) that in 1984 championed the consolidation was not a small firm, but rather a 200-lawyer firm with substantial revenues. Faced with an adversary that could afford lengthy trials, extensive discovery and numerous experts, and bombarded with new legal claims from "the advertisers," Robins decided that it was time to retreat to a safer haven, a better forum. And what better forum than Richmond, Virginia, the site of its corporate headquarters.

My first participation on a committee opposing Robins was in 1984 in Richmond, Virginia. That year, Robins attempted to convince U.S. District Court Judge Robert R. Merhige, Jr. to certify a punitive damages class action. Robins argued that there was, in essence, a "limited fund" of its money available to pay claims, and that continued and excessive punitive damage awards could not continue to be met by Robins. The committee successfully opposed Robins' request, not as a consequence of brilliant argument, but rather because Robins was collaterally estopped from reasserting an issue previously decided by another federal judge -- an attempt to obtain punitive damage class action certification failed in 1981 when the Ninth Circuit Court of Appeals (fn. 21) reversed a California federal jurist's grant.

The year after Robins lost its bid in Virginia for hometown advantage through a certified punitive class action, it made its second attempt for that advantage. This time it was successful. On August 21, 1985, A.H. Robins Company filed for Chapter 11 protection in the U.S. Bankruptcy Court for the Eastern District of Virginia, Richmond Division. Robert R. Merhige, Jr., the District Court judge who had denied Robins' request for a nationwide punitive damage class, signed Administrative Order No. 1, an extraordinary order which retained jurisdiction for him, rather than a bankruptcy judge, (fn. 22) over much of the bankruptcy. Robins was now in Richmond, and Judge Merhige controlled its destiny.

Judge Merhige is a true enigma. A federal judge sitting in Richmond since 1967, (fn. 23) he is a take-charge, no-nonsense judge who will find a way to solve a problem, often with unique or novel solutions. Gregarious and outgoing, he is also determined and forceful. To some, he seemed the panacea for the problems of Dalkon Shield victims. To others, he seemed the judicial bully. To all, he was a problem solver -- although not all condoned his methods or his solutions. In Robins' bankruptcy, he was notably instrumental in finally crafting the solution which determined the fate of Robins and Dalkon Shield victims.

When Robins filed for bankruptcy protection on August 21, 1985, many of the plaintiffs' bar were quite concerned that Judge Merhige would be deciding Robins' fate. Would Robins be shown favoritism? Would women be protected? The concerns stemmed from events of the past. Prior to Robins' Chapter 11 filing, Judge Merhige had arranged a meeting with a number of state and federal judges to discuss the future nationwide handling and resolution of Dalkon Shield cases. In anticipation of that meeting, he had met at his home, and without either Robins' counsel or counsel representing Dalkon Shield victims, E. Claiborne Robins, Sr. and Jr., the titular heads of the Robins Company. Judge Merhige voiced concern that he not waste the time of so many judges if Robins intended to file Chapter 11, and pointedly asked the Robinses if the company intended to file Chapter 11. He was assured by them that Robins would do all that it could to avoid bankruptcy. (fn. 24)

With that assurance, the meeting of judges was held in Wichita, Kansas on August 6, 1985. At the meeting Judge Merhige suggested the possible transfer of all pending Dalkon Shield cases to his district ". . . not only for the purpose of assessing the motion for a class action, but also for facilitating a settlement across the board in the event the motion fails." (fn. 25) When speaking with the other judges, Judge Merhige was referring to a mandatory class action motion that had been filed by a Minneapolis plaintiffs' lawyer on August 2, 1985. Allegedly the judge, at his home (fn. 26) and again ex-parte, had told the plaintiffs' attorney from Minnesota"...that if [he] filed a class action motion it would be granted ..." (fn. 27)

This alleged conversation was very troubling to many in the plaintiffs' bar. Class action suggested wholesale settlement of claims, and was not a method viewed by the very vast majority of plaintiffs' attorneys as acceptable to resolve their clients' causes. It meant loss of control, and in effect was a usurpation of the attorneys' responsibility and ability to represent. This, and other, past events caused many in the plaintiffs' bar to look critically at the district court judge who presided over Robins' fate. (These and other facts were eventually recited in an unsuccessful motion filed against Judge Merhige in March of 1986.) But concern over the presiding judge -- a concern which all counsel, if forthright, must admit is present in varying degree in all litigation -- was but one concern to me of so many. When Robins filed for bankruptcy protection in Richmond, Virginia, there was no facet of representation of Dalkon Shield clients that did not raise justifiable concern.

Scene One: The evening news.

I was in my home in Ohio City watching the late television news on the evening of August 21, 1985, when I first learned that the A.H. Robins Company had filed for bankruptcy protection in Richmond, Virginia. On that date, of the 17 Dalkon Shield clients that Brown & Szaller represented, suit had been filed for 12, and five matters were yet in investigative stages. I did not know what would happen to any of their causes now that Robins was in bankruptcy. I was concerned, and not knowledgeable about bankruptcy, so the following day I asked questions of bankruptcy lawyers, and began my own research as well. Soon confirmed was one of those lessons I had learned from Bradley and my old firm. (fn. 28) If I wanted to determine my clients' fate, I had to find a way to stay in control, even in the unfamiliar bankruptcy arena. A telephone call I received from Bradley Post two days later opened the door when I was invited to meet in Chicago with other lawyers experienced in Dalkon Shield litigation to discuss the options available to us and our clients. And so on to Chicago I went. Little did I know that my small Dalkon Shield practice in Cleveland would soon be disrupted and eventually consumed by concerns for hundreds of additional clients, and thousands of pro se victims.

In Chicago, lawyers debated the wisdom of various responses to Robins' petition for bankruptcy, long feared since the filing by Johns-Manville. (fn. 29) Many believed that the bankruptcy was filed in bad faith, and were intent on attempting to dismiss it. Others were not so certain of how best to proceed. There were exceptions, but basically lawyers fell into one of two camps. Lawyers were classified as either hawks or doves, depending upon whether they wished to peaceably go along with the bankruptcy, or to fight it, and move to dismiss Robins' filing. Lawyers that had advertised and represented hundreds of clients were most often included in the dove camp. Lawyers whose practices were more boutique and who exemplified the more traditional role of championing the rights of individual clients generally were classified as hawks.

The group decided that those who wished to file motions to dismiss should do so -- but all agreed to work together to foster the common purpose of protecting clients. Recognizing that, if the bankruptcy continued, a central and pivotal position within it was needed to effect the destiny of our clients' claims, we decided to provide the U.S. Trustee, William White, the names of a representative group of our members for consideration as the official Dalkon Shield Claimants Committee.

Thirty-eight of us were determined by the group as a whole to be representative of lawyers, and the clients they represented, throughout the country -- geographically, philosophically, and by size of firm and number of clients. I was included because although Brown & Szaller was a small firm, representing at that time only 17 Dalkon Shield victims, the previous 11 years of my law career had been spent almost exclusively in Dalkon Shield litigation. The committee of 38 which collectively represented thousands and thousands of women was well-balanced. Though views of the individual members were often divergent, this was not a negative. It led to healthy discussion of all issues, and enabled the group as a whole to explore the multiple aspects of each issue, and arrive at a decision that was based upon all reasonable considerations.

The U.S. Trustee moved Judge Merhige to appoint the 38 as the official committee and, on September 21, 1985, the judge approved our appointment. He was extremely pleased when informed that the group had already interviewed and chosen as its counsel Murray Drabkin. The only reservation concerning our appointment expressed by Judge Merhige was the failure to include on the committee the Minnesota plaintiffs' lawyers who had appeared before him in the past and were supportive of class action as the vehicle to resolve Dalkon Shield claims, rather than individual litigation. We should have been more concerned at the time that Judge Merhige put such stock in Murray Drabkin, and that he voiced concern that the Minnesota lawyers were not included in our composition. That was an error.

The committee worked very hard. During its short existence, the members attended countless meetings, engaged in innumerable telephone conferences, and generated reams of correspondence. It elected an Executive Committee of ten, of which I was one, which met frequently to determine how to put into action the decisions of the committee as a whole. A Negotiation Committee was formed, and discussions commenced with the Robins Company regarding resolution of claims. A Finance Committee was formed, which I chaired, and with the able assistance of an economist, John F. Burke, Jr., Ph.D., we estimated for the Negotiation Committee the worth of the Robins Company, an invaluable bit of information to aid those in the negotiation process. (As it turned out, our estimation of the worth of the Robins Company, which exceeded the amount of its publicly disclosed worth at the time it entered bankruptcy, very nearly equated the amount eventually paid for the Robins Company when it was sold in bankruptcy a number of years later.)

But the seeds of discontent and concern, sown about Judge Merhige specifically, and the bankruptcy generally, grew. Dismissal of the bankruptcy was first addressed. Two motions to dismiss the bankruptcy were filed, but each failed. Realizing that the resolution of claims against Robins would therefore be decided in the bankruptcy, attention was turned to Judge Merhige. There was continued talk about the propriety of filing a recusal motion against him. Confirming at least some of the concerns of the past, he continued to raise the specter of class action as the proper vehicle to resolve claims. This was unacceptable to almost everyone on the committee. It would be, we believed, the responsibility of the Minnesota lawyers, and might well result in wholesale settling of our clients' causes. Many of the committee members were therefore skeptical of the judge's plans for our clients.

And Judge Merhige had his doubts about us. He never felt confident that the bankruptcy could resolve quickly with our committee as composed. On the day we were appointed, he made clear on the record that he considered our appointments rather temporary. He stated that within "60 days" (fn. 30) he would decide whether the committee was performing adequately. And he mentioned specifically that the group in Minnesota "ha[d] not been forgotten." (fn. 31) He praised their past cooperation, and told them in open court that while he would give us a chance, their input was still needed. (Although we were soon to give Judge Merhige the opportunity to disband us, the group from Minnesota never became part of the official committee. Instead, they later brought, and eventually settled, a class action against Aetna in the bankruptcy for which they were paid millions of dollars in fees. But that was not until long after we were disbanded.)

The committee gave Judge Merhige the opportunity to disband us when we fired our bankruptcy lawyer, Murray Drabkin. He had first appeared before the judge on September 21, 1985 as counsel to our committee, and it was Drabkin about whom Judge Merhige was "enthusiastic". (fn. 32) Murray Drabkin was a partner at one of the oldest and most prestigious law firms in the United States. He was one of the best of his breed and a hard-nosed bankruptcy lawyer. However, unlike the majority of the lawyers on the Claimants Committee who had spent years in the trenches against Robins and had come to expect legal maneuvering which bordered on ethics' cutting edge, he was comfortable in the bankruptcy process and not unhappy with Robins for entering it. He therefore refused to assist in any effort to dismiss the bankruptcy, to the dismay of some members.

Further adding to the developing riff between Drabkin and many committee members was the feeling that Drabkin, and not the committee, was directing legal maneuvering in the bankruptcy. All came to a head when committee members learned that Judge Merhige had written a letter to Drabkins' local counsel, disclosing the judge's past involvement (fn. 33) with certain counsel, including a lawyer at McGuire, Woods & Battle, the firm that had represented Robins in pre-bankruptcy Dalkon Shield litigation. Although Drabkin was apprised of the information in the letter, he failed to disclose it to the committee. When members learned of Drabkin's silence, they were furious and decided to seek advice elsewhere.

The chair of the committee, Mary Beth Ramey, Vice-Chair Fred Bremseth, and I traveled to New York to discuss Chapter 11 issues with the attorney (fn. 34) who had represented asbestos claimants in the Johns Manville bankruptcy. We left New York doubting Drabkin's leadership, convinced that roles had been reversed -- Drabkin was now leading and we were following. Although Drabkin was obviously eminently qualified, we questioned whether the course he pursued was consistent with our intentions and directives. It was decided that the committee members should be polled to determine if Drabkin should be replaced. I did the polling by telephone and spoke to all but a few of the 38 members. The vote was overwhelming. He was to be replaced. Drabkin was informed of the decision by the committee's chair, and all persons party to the conversation agreed they would not make statements to anyone regarding the situation until an opportunity for further discussion could be had the next day. This hiatus of action for 24 hours was expressly at the request of Mr. Drabkin. Meanwhile in the wings waited Robert Rosenberg, our contemplated new counsel, the attorney at Latham & Watkins who had represented the claimants in the Johns Manville bankruptcy.

My goodness, how naive we were. The committee gave Drabkin, the crafty, seasoned bankruptcy lawyer, 24 hours to reflect on how best to respond to our request that he be replaced, believing full well that the status quo would remain unchanged during that 24 hour time period. But Drabkin did not wait, he acted. Almost immediately he placed a conference call with the U.S. Trustee and Judge Merhige, explaining to them, I now surmise, in a sad, disheartened voice that tremored with apprehension for Dalkon Shield claimants who might be deprived of his guiding force, that he had been fired by the renegade plaintiff lawyers who refused to accept Robins' bankruptcy plea from the moment of its filing. Judge Merhige refused to accept Drabkin's resignation and instead decided that the time was ripe for disbanding the unwieldy committee of 38. The U.S. Trustee subsequently filed a Motion (fn. 35) to disband the committee. A hearing was held, (fn. 36) and Judge Merhige disbanded the committee. Subsequently, a new 5-member committee replaced us. (fn. 37) We were now officially out of control.

Judge Merhige had acted on his concerns before some of the committee members acted on theirs, and he removed us before the attempt was made to remove him. A recusal motion was filed against Judge Merhige moments after he disbanded us, that same day. The timing could not have been worse. Had it been filed the same day but before the hearing to disband the committee, the results could well have been different. Judge Merhige might not have disbanded us, for to do so would appear retaliatory in face of the filed recusal motion. But the timing was as it was, and we were gone. And he remained.

Judge Merhige denied the recusal motion. (fn. 38)

I now look back at the next turn of events and realize that I was foolishly idealistic. I believed that if the law suggested something should not be done, then it should not, and I as a lawyer could enforce the prohibition. From the bankruptcy research that daily was becoming more and more of my legal diet, I learned that the Bankruptcy Reform Act of 1978 transferred the selection and appointment of a creditors committee to a U.S. Trustee who, as a "disinterested individual," (fn. 39) could make the appointment without ulterior motive. An abuse prior to the Reform Act was the selection of individuals to a creditors committee based not upon their representativeness but upon their willingness to hire a particular bankruptcy attorney to represent the committee. The Bankruptcy Reform Act was intended " . . . to reverse the former pattern of attorneys seeking out creditors to be elected to the committee in order to be retained as counsel for the committee. . . . " (fn. 40)

Suspecting strongly that our previous bankruptcy counsel, his local counsel, and the U.S. Trustee had conspired to appoint a committee that would assure Drabkin's continued retention in violation of the Act, I did the one thing lawyers do well. I sued everybody. I sued the U.S. Trustee. I sued all five members of the new committee. I sued Drabkin, one of his partners, and their local Richmond counsel. On May 22, 1986, the day I filed the motion with Bradley Post and the former chair, Mary Beth Ramey, I represented 72 Dalkon Shield victims. The number had grown from the 17 represented on August 21, 1985 because so many lawyers in Ohio had begun to refer, on a co-counsel basis, Dalkon Shield clients to Brown & Szaller. Even though I only represented 72 claimants in a bankruptcy that encompassed over 200,000 claimants, I believed the obligation to each of them mandated my personal representation and, that failing, a representative committee that I could possibly assist. The defendants seized each of those potentials.

A number of other lawyers joined us in the proceeding, although virtually all of the effort emanated from Brown & Szaller. And the effort was great. Never in my 24 years of practice have I had a more intense 3-1/2 months -- although all I did was for naught. Mounds of filings and pleadings from Brown & Szaller accomplished little, for Judge Merhige, voicing concern about "costs" to the debtor, controlled and limited discovery. As Richard B. Sobol recounted in his authoritative documentary of Robins' Bankruptcy, Bending the Law,

In a pattern that would become familiar to lawyers raising issues in the Robins bankruptcy that Merhige did not want raised, the judge upheld Szaller's right to discovery in the abstract but constructed a series of roadblocks and delays that made it impossible to obtain meaningful information. At first, Merhige refused to allow any depositions. Instead, he permitted Szaller to submit written questions to the committee members but not to White, Drabkin, and Little, the three persons with the greatest knowledge of the selection process. Merhige said that these restrictions were necessary to "avoid undue expense on the debtor." Later, Merhige agreed to allow depositions of the committee members (but still nothing directed to White, Drabkin, and Little). Nonetheless, because of various procedural obstacles, and after three and a half months, when the matter was scheduled for hearing, Szaller had succeeded in deposing only [one member of the replacement committee]. (fn. 41)

We lawyers are quite spoiled today. Our trials involve recitations of past deposition testimony of witnesses, and use of documents that have been scrutinized, cataloged, and sometimes CD-rom'd prior to the trial. No longer, as in years past, do lawyers face adverse witnesses on the stand whose testimony has not been foretold under oath prior to trial, and who cannot be held consistent to that past recorded testimony. There simply are -- or should be -- no surprises today. Unless you interrogate witnesses for the first time on the stand, in the courtroom, at trial. Facing witnesses whose testimony I could not control by reference to prior testimony, I began the daunting task of attempting to elicit testimony that the replacement members were selected primarily to re-hire Drabkin. I interrogated the U.S. Trustee and local bankruptcy counsel, and others subject to the Court's subpoena power. But Drabkin never took the stand, nor did the members of the committee who resided outside Virginia -- I had been prohibited from taking their depositions, and since they were outside the subpoena power of the court their appearances could not be compelled.

Although it was established at trial that four of the five replacement committee members had been recommended to the U.S. Trustee by former bankruptcy counsel Murray Drabkin and/or his local counsel, Judge Merhige nonetheless declined to hold that the committee members were appointed for any reasons other than their qualifications and their representativeness. He further held that the "complete lack of evidence presented in support of the movant's motion" (fn. 42) warranted the court consider the imposition of attorneys fees and costs against me personally, pursuant to Rule 11. He specifically requested in his memorandum that the parties submit their advice on whether I should be assessed attorneys fees and costs. Thankfully, none of the parties advised the court that sanctions should be imposed, and the matter was not raised again.

Although Rule 11 sanctions were not assessed, I felt no consolation. I had lost a two-day, stressful trial, (fn. 43) and I had accomplished nothing. I, and the others with whom I had worked so long over the years, was still out of control. The bankruptcy was continuing without us. And important pleadings were being filed daily. How could we possibly have timely input to protect our clients. I was very disheartened.

As a member of the Claimants Committee I had received, on a very timely basis, all bankruptcy filings. In the bankruptcy there were numerous committees representing diverse interests, including Robins' shareholders, the Robins family, unsecured and secured creditors,

Dalkon Shield claimants, future Dalkon Shield claimants, and so on. Each had their own agenda, and each constantly filed motions requesting varied types of relief. The bankruptcy docket was continually fed by pleadings, motions and orders which directly impacted claimants' rights, each of which required responses, often due within a matter of days. To be addressed were issues such as "notices" to claimants, the date to be established as the bar date (after which claims would not be allowed), whether Robins should be assessed punitive damages, what statutes of limitation (if any) applied to Dalkon Shield claims, what was the estimated worth of Dalkon Shield claims, etc. Now that I was no longer on the Claimants Committee, I did not have instant access to these filings, and it was difficult to file timely responses. And I was not alone. Of the original 38 who comprised the Claimants Committee, 36 of us had been displaced. Each of us was in the same predicament. Each needed the filings on a timely basis.

In Robins' bankruptcy, there was an official "service list." Counsel to each of the committees was on the service list, and received all documents filed in the bankruptcy. One of those on the service list was Stanley Joynes, a compassionate, hardworking attorney appointed by the court to represent future claimants. He agreed to help. He filed a motion asking the court to add my name to the service list so that I could receive timely pleadings and make them available to the members of the old committee -- or for that matter, any attorney who requested them of me. He and I appeared in Richmond, (fn. 44)

On balance, Your Honor, it seems to me a positive step to take, to add Mr. Szaller to the list. He will duplicate the pleadings and distribute them to other lawyers in the Dalkon Shield plaintiffs' bar at a cost of no more than $.15 per page, thereby facilitating their information with regard to the case, because notwithstanding the Dalkon Shield Claimants Committee's obligation to represent the parties generally, there are many attorneys involved who do have a right to access in the case.

Transcript at 3. and although the Robins Company opposed the motion, counsel to the reconstituted Claimants Committee agreed to send the pleadings to Brown & Szaller -- I was therefore to be served by the newly constituted Claimants Committee. From that moment forward I received, within days of each filing, copies of all matters appearing on Robins' docket, including but not limited to motions, responses, memorandums and orders. Although we were no longer directed the course of our clients' causes through participation on the Claimants Committee, by timely receipt of the filings and other materials we were able to adequately represent their interests. Over the years we remained busy filing appropriate responses to motions of the debtor and others that impacted our clients. Voices of those representing Dalkon Shield victims were again heard, and some measure of control was recaptured.

What's good for the goose is good for the gander. Or, is it?

There was always doubt that Robins would have enough money to pay the claims of injured Dalkon Shield victims world-wide. Even before the bankruptcy, as the number of lawsuits escalated, there was some doubt. But after Robins entered bankruptcy and hundreds of thousands of claims were filed, doubt intensified. When the 38 constituted the official Dalkon Shield Claimants Committee, one of the constant subjects of discussion involved pursuit of additional deep pockets. After the committee was disbanded, most of its members and an additional number of plaintiffs' attorneys organized the "Ad Hoc Committee of Lawyers Representing Dalkon Shield Victims." The new -- albeit not recognized by the bankruptcy -- committee drafted a lengthy resolution which included an objective of " . . . obtaining contribution from Aetna, culpable officers and directors of Robins, and/or other culpable sources which may be available for the payment of Dalkon Shield claims." The new unofficial committee had every intent of working to assist those in the official bankruptcy process to satisfy the claims of so many injured by the Dalkon Shield. And so it was that we considered how to assist, and we focused on Aetna Casualty & Surety Company.

A potential additional deep pocket to add monies to Robins' pot, Aetna was Robins' product liability insurer. Prior to Robins' bankruptcy Aetna had been named as a co-defendant in a few cases, but in pre-bankruptcy litigation intensive discovery had not been directed at Aetna. The full extent of Aetna's complicity with Robins -- and of Aetna's independent tortious conduct -- had therefore never been explored, although there was some evidence that Aetna had conspired with Robins to destroy documents, and that the mammoth insurer had itself hired experts whose studies were never revealed because their findings implicated the Dalkon Shield as causative of pelvic infections. (fn. 45)

The responsibility of an insurer to warn consumers of defects in products it insures is analyzed, with particular reference to Aetna and the Dalkon Shield, by Morton Mintz in "The Dangers Insurance Companies Hide," Washington Monthly, January-February 1991, pp. 38-45.

Early in the bankruptcy, and at the request of Robins, Judge Merhige issued an injunction against continued pursuit of Robins' co-defendants. (fn. 46) Suits pending on August 21, 1985, the date Robins filed for bankruptcy protection, against Aetna as a co-defendant of Robins for Dalkon Shield injuries, could therefore not be pursued because of the injunction. With the automatic stay provisions of the Bankruptcy Court which prohibited suits against Robins during the tenure of its bankruptcy, the injunction in essence brought all Dalkon Shield litigation that had been pending on August 21, 1985 to a grinding halt.

But we believed it was necessary that Aetna be pursued. The only available vehicle to pursue Aetna, it seemed to many of us, was the filing of an independent action against the insurer for its individual (rather than co-defendant and conspiratorial) torts. And we did. In August of 1986, suit was filed against Aetna, individually, in federal court in Kansas. The Complaint, styled Anderson v. Aetna, (fn. 47) had as plaintiffs over 4000 women claiming Dalkon Shield related injuries, represented by more than 20 attorneys, including me.

We were certain the injunction issued by Judge Merhige did not apply to our suit, since Aetna, not in bankruptcy, was only sued for its independent conduct. Our belief was very strongly buttressed by Judge Merhige's -- and Robins' and Aetna's -- acquiescence in a similar suit brought against Aetna during the bankruptcy by the Minnesota lawyers favoring class action resolution of the bankruptcy claims. That suit, originally filed in April 1986 in Minnesota, had been removed to Judge Merhige's court in Richmond that same month, without complaint by Judge Merhige, Robins, or Aetna. We presumed no complaint would be raised to our filing, either. But we did not receive the same treatment as the Minnesota lawyers, from anyone -- Aetna, Robins and even Judge Merhige. I remember receiving a telephone call informing me that Aetna's attorneys had contacted one of my co-signors and that threats of contempt for violating the injunction were being thrust at us. While ignoring lawyers' threats may be the stuff of daily practice, when a federal judge echoes them, there is just cause for concern.

We were ordered by Judge Merhige to "show cause" (fn. 48) why we should not be held in contempt for violating the injunction which prohibited suits against Robins' co-defendants. On September 4, 1986, we came to Richmond where Judge Merhige in essence gave us two options: dismiss Anderson and reimburse the debtor and Aetna for expenses incurred, or be held in contempt of court. We agreed to dismiss (fn. 49) the case, and to pay Aetna and Robins' attorneys fees. The contempt threat was lifted. We were no longer in pursuit of Aetna.

But the Minnesota lawyers were still in pursuit of Aetna, apparently not to the chagrin of Aetna and Robins, for still neither complained. And, they were never asked to "show cause" why they should not be held in contempt of court for filing the same type of action against Aetna as did we.

Two years passed. They had been spent preparing our clients' causes for trial, if that should ever occur, and by unofficial participation in the bankruptcy.

Because of the firm's intense involvement, the number of Dalkon Shield clients represented by Brown & Szaller grew steadily as Ohio lawyers continued their referrals. By June of 1988 I represented 153 clients, and it was within that month that I received a telephone call from a lawyer I knew in a large North Carolina law firm that eventually resulted in tripling the number of Dalkon Shield clients I represented. He informed me that his firm had obtained from the Bankruptcy Court the names and addresses of pro se claimants in the Robins bankruptcy, at a cost of $.06 per name, and that his firm intended to mail a solicitation letter to each of them, including those residing in Ohio.

Ohio accounted for the second highest sales of Dalkon Shields of any state, probably because Dr. Thad J. Earl, a practitioner in Defiance, Ohio, had been a shareholder in the Dalkon Corporation and a vocal promoter of the Dalkon Shield. Not surprisingly then, there were a large number of pro se Ohio claimants in the bankruptcy. In Ohio, 6,600 individuals had filed claims, and those without counsel were about to receive a solicitation letter from North Carolina. I was not pleased by the incoming solicitation, but research indicated I could not stop it. Although I had never placed ads for my legal services, the idea now quite frankly struck me as appealing.

From the bankruptcy court clerk, I also obtained the name and address of every Ohio Dalkon Shield claimant, and to those unrepresented I sent a very short letter. Included with the letter was a postcard. The postcard was a unique and, for its recipients as well as Brown & Szaller, a helpful and rewarding tool -- if dropped in the mail, it would prompt a phone call from me with free legal advice.

The mailman did not like us. The mail at Brown & Szaller no longer was delivered neatly rubber-banded, but was carried in a sack over the mailman's shoulder and deposited, sack and all, in our lobby. The mail included scores of medical records and, of course, the postcards. Every morning for months 30 or 40 postcards were placed on my desk, each containing the name of someone who expected a phone call from me within the next few days. I returned each and every phone call promptly, beginning my morning quite early, and ending it extremely late. I contacted people at home, at their office, or in some cases in their automobiles, but I contacted them. Quite frequently, medical records were needed for review before advice could be given, and thus they were obtained for the claimant, then evaluated.

Pro se claimants who had legitimate, but relatively minor, claims were assisted on a pro bono basis. If they were having difficulty obtaining medical records, they were assisted in obtaining them. If they could not interpret the medical records, or were having problems completing the myriad of forms they received from the Bankruptcy Court, a nurse helped decipher the record or a paralegal helped with the forms. If they simply wanted a shoulder to cry upon, it was offered. No one who wanted help was turned away, and the very vast majority were helped without charge. Only those with serious injuries and who could benefit from representation became contingency fee clients.

We answered everyone's generic questions, and in addition were able to assist over 1000 pro bono clients with their individual claims -- no fees or expenses (except the cost of medical records) were charged them. Two hundred women did become clients of the firm to be represented on a contingency fee basis. These clients, added to those who were (or would be) referred by over 70 Ohio law firms, became part of the 455 women we eventually represented in the bankruptcy. We also represented ten children and 225 husbands. I was very busy.

As the number of clients represented by the law firm increased, additional staff were hired. Besides paralegal and secretarial support staff, the firm engaged 12 full-time nurses. A training manual was prepared for them which included information about the female anatomy, obstetrics and gynecology, "womens diseases," reproduction, pathology, and the myriad of medical subjects needed to evaluate Dalkon Shield claims. They underwent a three-day training program conducted by me and a registered nurse who had eight years Dalkon Shield experience at Brown & Szaller. To complement our training, Dr. Howard Tatum, the physician who in 1975 discovered the wicking propensities of the Dalkon Shield, spent an additional two days in Cleveland lecturing and counselling them. And throughout their tenure, there was a continuing effort to supplement training.

In order to pay additional staff, obtain medical records, and advance the sundry costs necessary, I personally went into debt well over one million dollars. As the debt escalated and time passed, I began to have doubts. Would the economic risk result in compensation to women? The Plan, confirmed on July 25, 1988, had been appealed to the U.S. Supreme Court. Would the Court affirm it, or would there be a reversal, with new effort then necessary to find dollars and another buyer of Robins? It was an unsettling time.

A.H. Robins Company no longer existed. In its place is a trust fund of approximately $2.5 billion to compensate Dalkon Shield victims, and an entity known as the Dalkon Shield Claimants Trust. The "Trust" reviews claims, makes settlement offers to claimants, and stands in Robins' liability shoes in arbitration or trial.

When in November 1989 the United States Supreme Court denied certiorari (fn. 50) to review the Fourth Circuit opinion upholding the July 1988 district court's confirmation of Robins' Plan of Reorganization, victims were hopeful that compensation would soon come. The efforts of so many -- including, as it turned out, the exemplary efforts of Murray Drabkin, the bankruptcy lawyer fired by our committee and re-hired by its replacement -- had resulted in a confirmed Plan of Reorganization that weathered appellate review.

. . . (1) Providing an efficient economical mechanism for liquidating claims which favors settlement over arbitration and litigation, thereby reducing transaction costs. (2) Providing claimants with an attractive alternative to trial by jury where settlement is not achieved. (3) Providing fair and equitable compensation based upon historic values, updated by current developments, to persons injured by the Dalkon Shield, and (4) Providing no compensation to persons not injured by the Dalkon Shield. (fn. 52)

The amount finally available to the Trust to resolve claims exceeded the amount determined years earlier by Judge Merhige to be sufficient to pay all claims. This was so for a number of reasons, the major being Murray Drabkin's hard-nosed and very able negotiating skills. Substantially beneficial to claimants were his negotiations with American Home Products which resulted in a lump sum, immediate payment of all the monies into the trust fund, rather than a payment of monies "over a reasonable period of time" (fn. 53) which Judge Merhige deemed sufficient years earlier in his estimation order.

A settlement process is in place. The Plan of Reorganization provided three options (fn. 54) under which Dalkon Shield claimants could resolve claims. Option 1 paid $725 upon signing of a release attesting to use of a Dalkon Shield and resultant injury. One hundred million dollars of "start-up" money was made available to the Trust and used to offer Option 1 settlements to claimants even before the U.S. Supreme Court denied certiorari, at a time when it was not certain when, if ever, there would be a confirmed Plan of Reorganization. And many claimants opted to resolve their claim for $725 because of the uncertainty. Option 1 dollars were first offered in December of 1988 to claimants, and a year later over 80,000 of the claimants accepted the $725. The universe of Dalkon Shield claimants was thus reduced by 40%, which correspondingly increased the potential share of each remaining claimant from the fund.

Under Option 2, a claimant could receive between a few hundred dollars and $5500. Option 2 provided that a claimant would " . . . receive a specified payment in accordance with a schedule." (fn. 55) Only if a specific injury listed on the schedule was evidenced by the medical records could the claimant receive the pre-determined amount for that injury.

Option 3 was designed for the most seriously injured. Settlement amounts were to be consistent with the historic value of pre-bankruptcy Dalkon Shield claims. A claim booklet (the "Option 3 Claim Form") completed by the claimant and medical records determined the Trust's settlement offer. Trust settlement offers were not negotiable -- an offer was either accepted or rejected. If rejected, Option 3 claimants could proceed to trial, arbitration, or ADR (mini-arbitration). At trial or arbitration, the claimant would receive the amount of the judgment, but for ADR, the maximum recovery was limited to $20,000.

March 1990. The time had come for resolution. The Option 3 Claim Forms prepared by the Trust to evaluate Option 3 claims were finally received. For hundreds of Dalkon Shield victims, it was now my responsibility to maximize their recovery. Thousands of medical records had already been summarized. For each claimant the extent of her injuries, and the quantity and quality of her proof, were known. Now the goal was to submit our best work product to the Trust.

Preparation began with review of a firm-prepared and client-completed 24-page questionnaire -- the questionnaire guided our efforts to perfect her claim. Each medical record (which had been ordered "certified") had already been reviewed, line-by-line, by me and then by a registered nurse who entered the information into a computer database. That information was now entered into the Option 3 Claim Form. A narrative summary of the client's injuries and pain and suffering was then prepared, using the client's own words where possible, derived from her responses in the questionnaire.

To evidence the extent of infection or, in some cases, that infection had actually occurred, pathology specimens were ordered, and re-run pathologies were performed. The review results were recited in an affidavit, as were the opinions of economist, John F. Burke, Jr., Ph.D., who from a computer database developed by him evidenced the approximate cost of medical expenses incurred over the years. The last opinion came from Dr. Howard J. Tatum, who after review of records authored a medical opinion letter concerning the medical cause of the clients' injuries. Thus although the Trust had only requested from each Option 3 claimant a completed Option 3 Claim Form and medical records, our submission, often after second and third review of the materials, was much more comprehensive.

Knowledge and information are keys to successful prosecution. For women who rejected settlement offers, substantiation of their own claims was only part of the preparation necessary for trial. To accumulate the information needed for the remainder of the preparation, the Dalkon Shield Litigation II Depository was established in Cleveland, Ohio. In the Depository, I assembled the largest collection (fn. 56) of Dalkon Shield related materials in the world. The large Minneapolis law firm (fn. 57) that in 1984 had consolidated so many cases and drove Robins to seek Richmond as a new forum had compiled a very extensive Dalkon Shield depository. That firm, and the Minneapolis Trial Lawyers Association which maintained some of its materials, forwarded its depository to Cleveland, and it was added to materials to be received from other law firms, including Brown & Szaller. Additionally, added to the now-styled "Dalkon Shield Litigation II Depository" was an exhaustive medical literature library compiled by our nurses. The time-consuming process of developing a computerized database index of the vast number of documents resulted in a printed hard copy of the index over three inches thick. The large index reflects that housed in the Depository are the MDL materials from the early 1970's (and subsequently when it re-opened in the early 1980's), Robins' and plaintiff and defendant experts' depositions (videotape and written transcripts), a number of complete trial transcripts, an exhaustive compendium of the medical literature, much of the Robins bankruptcy docket, transcripts from the bankruptcy, and motions, pleadings, and other various materials generated in trials and arbitrations against Robins and the Trust. During its term, the Depository proudly claimed membership of over 100 law firms throughout the world whose clients benefitted from its materials.

Well served by the Depository were clients of Brown & Szaller. The information was used daily to assist in the prosecution of their claims. Additionally, because of the Depository, the firm became a clearinghouse for information. Attorneys who contacted the office to give as well as receive information constantly kept the firm abreast of significant events. Decisions made were therefore based not only on seasoned, but also on the most up-to-date, information. The Depository enabled me to represent Dalkon Shield clients to the best of my ability.

ADR, or alternative dispute resolution, was an abbreviated claims resolution process, not as costly or timely as trial or arbitration. In ADR, the client's cause was presented to an arbitrator in 2-1/2 hours, the time being divided equally between Trust and claimant. Lawyers did not represent the Trust in ADR, instead "advocates" -- Trust employees trained in advocacy, and in the medical aspects of Dalkon Shield related injuries -- presented the Trust's position.

In my opinion, the Trust advocates generally enjoyed an advantage in ADR. The issues in ADR were primarily medical, rather than legal. Most lawyers were not as versed in medicine as were the medically-trained Trust advocates, and certainly pro se claimants were not. In ADR, although the Trust was expected to, and did, raise alternative medical causation as a defense, in the initial years of ADR some (but not all) Trust advocates defended the Dalkon Shield as a medically safe product. When an advocate so argued, pro se claimants and attorneys with little Dalkon Shield experience were disadvantaged.

The playing field levelled when the Fourth Circuit decided Reichel v. Dalkon Shield Claimants Trust. (fn. 58) Per Reichel, a claimant in ADR had benefit of a rebuttable presumption that the Dalkon Shield caused her injuries, if she established use of a Dalkon Shield and an injury consistent with those historically caused by the Dalkon Shield. (fn. 59) Post Reichel, the Trust no longer claimed the Dalkon Shield was a medically safe product falsely maligned in the medical literature by poorly performed studies.

One hundred seventy clients of Brown & Szaller proceeded through ADR. Over 90% of them were successful, and the awards averaged greater than four times their settlement offers.

Very few women went to trial against the Dalkon Shield Claimants Trust. Even fewer went to arbitration. Trials were costly, and although less so, arbitrations were as well. The lawyers who represented the Trust were the same lawyers who had represented Robins, and they were quite knowledgeable and often aggressive. (fn. 60) Women who presented the strongest claims to the Trust almost universally received high offers, which they accepted. The claimants whose causes remained often presented with weaker fact patterns, and success at trial was less certain for them.

But there were other reasons as well. Judge Merhige had retained exclusive jurisdiction in Robins' Plan of Reorganization to ". . . resolve controversies and disputes regarding interpretation and implementation of the Plan, the Trust Agreements, [and] the Claims Resolution Facility. . . . " (fn. 61) His jurisdiction continued even after the Plan had been confirmed, the money had been paid into the trust fund, and the Trust had begun the process of resolving claims. Although Robins' Plan of Reorganization had provided for trial or arbitration in the event settlement failed, many questions lingered, each within the exclusive jurisdiction of Judge Merhige. Conduct of plaintiffs' lawyers in litigation was at times alleged by the Trust to result from "interpretation" of the Plan, and under threat of contempt lawyers were given the option of altering conduct or appearing in front of Judge Merhige. The result was chilling, not only in any specific case, but in how plaintiffs' lawyers viewed the entire process. Many were simply uncomfortable to partake in it.

Another major drawback to trial and arbitration was that, in a flashback to pre-bankruptcy days, the Trust mimicked Robins and pointed the finger of sexual misconduct at women, suggesting that the pelvic infections they received almost always resulted from sexually transmitted pathogens. The favored sexually transmitted disease (STD) defense concerned chlamydia. Chlamydia, not "discovered" by the medical profession until the early 1980's, was often alleged by the Trust to have caused an infection incurred in the 1970's. This was a defense difficult to refute, since in the 1970's no test could have been performed on her to rule it out -- indeed, no test was even then available. Plaintiffs feared that trials would become sexual accusation witch hunts, and there was basis for their fear. In at least one case, the Trust hired an investigator to delve into the background of a Dalkon Shield claimant and her sexual partners, and the evidence was trailed in front of a jury by Trust attorneys.

Arbitration was likewise daunting to claimants. The rules of arbitration, written by the Trust and approved by Judge Merhige, gave the Trust latitudes not permitted under the common law in many jurisdictions. The rules permitted the Trust to speak ex parte with medical providers, and to compel women to undergo blood tests to determine if chlamydia was ever contracted. (fn. 62) Further, the arbitration rules provided that the substantive law of Virginia applied, and many attorneys, not familiar with its subtleties, were uncomfortable to proceed under it. And the Trust-drafted statute of limitations provided that the discovery of any harm triggered its running. Thus, if a woman experienced excessive menses while wearing the Dalkon Shield the statute was triggered, even for a claimed injury of pelvic infection not diagnosed until years after the device had been removed.

Reichel did not apply to either arbitration or litigation, thus the rebuttable presumption that a woman's injury was caused by the Dalkon Shield was not extant in either. Reichel was limited to ADR. Had the rebuttable presumption applied in trial or arbitration, the Trust would not have been able to argue that the Dalkon Shield did not cause pelvic infection and PID.

A number of Brown & Szaller clients initially elected litigation, thus on September 2, 1997 I filed a motion with Judge Merhige requesting the application of Reichel to causes in litigation and arbitration. Judge Merhige denied (fn. 63) the requested relief. Between his decision and my oral argument appealing it to the Fourth Circuit, the clients changed their election from litigation to arbitration. I therefore argued in the Fourth Circuit that Reichel should apply to them, now in arbitration. The Fourth Circuit agreed, (fn. 64) and reversed Judge Merhige. A few of our clients then proceeded through arbitration, with the obvious benefit of Reichel supporting their cause.

Ohio Rev. Code 2305.101 now provides:

(A) . . . a claimant who alleges bodily injury or wrongful death caused by the effects of the Dalkon Shield intrauterine device and who has filed a claim in the A.H. Robins bankruptcy reorganization in the United States bankruptcy court for the eastern district of Virginia, Richmond division, may bring an action in this state against the Dalkon Shield Claimants Trust for bodily injury or wrongful death caused by the effects of the Dalkon Shield intrauterine device, within one year from the date of the certification by the United States district court or the United States bankruptcy court for the eastern district of Virginia, Richmond division, of the right of that claimant to proceed to litigation or arbitration regarding that claim, or within six months from the effective date of this section, whichever is later.

(B) Division (A) of this section applies to all actions for bodily injury or wrongful death caused by the effects of the Dalkon Shield intrauterine device, including actions that may have been barred prior to the effective date of this section by dismissal pursuant to a court order or otherwise.

The legislation was necessary to protect the vested right of Ohio Dalkon Shield victims to pursue litigation because during the term of Robins' bankruptcy Ohio substantive law detrimentally changed. In 1988, the U.S. Supreme Court decided Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888. Prior to Bendix, no statute of limitations in Ohio was available for Robins to bar causes brought against it. In Bendix, the Court held that Ohio's tolling statute, which prohibited corporations not registered with Ohio's Secretary of State to do business in Ohio to raise limitations as a bar, was violative of the Commerce Clause.

Bendix, decided in 1988, impacted Ohio residents three years after Robins entered bankruptcy in 1985. By the time Bendix was decided by the U.S. Supreme Court, all Dalkon Shield claims rested in the bankruptcy, many of them filed by claimants who under pre-Bendix law had perfected suit against Robins, some others filed by women who had relied on pre-Bendix law to delay filing suit. Each of these women now faced in litigation with the Trust a statute of limitations bar that could usurp their vested right to continue litigation.

The question to be answered was whether Bendix was retroactive. The first case in Ohio to raise the issue of retroactivity of Bendix was Hyde v. Reynoldsville Casket Co., a motor vehicle case in which the driver of a truck owned by Reynoldsville Casket, an out-of-state corporation that had failed to register to do business in Ohio, injured an Ohio resident. The lower court and the court of appeals retroactively applied Bendix to permit raising of the statute of limitations against Carol Hyde. I was given the opportunity to file briefs and give oral argument as amicus curiae against retroactivity on behalf of Dalkon Shield victims, and two voluntary bar associations, the Association of Trial Lawyers of America (ATLA) and the Ohio Academy of Trial Lawyers (OATL). The Ohio Supreme Court reversed, and it appeared that all was well for Dalkon Shield claimants in Ohio who elected to proceed against the Trust, for there again was no limitations bar available to the Trust.

However, the U.S. Supreme Court granted a writ of certiorari. I again appeared as amicus curiae and submitted briefs on behalf of OATL and ATLA, and Dalkon Shield victims represented by the law firms of Brown & Szaller and Spangenberg, Shibley & Liber. As amicus curiae counsel, I did not give oral argument. The following, however, was the Summary of Argument from our brief:

The Ohio Supreme Court decision below held that a retroactive application of Bendix did not bar Respondent Carol Hyde's cause of action. Bendix deemed the Ohio tolling statute upon which she relied violative of the Commerce Clause, and amici agree that Harper mandated the retroactive application of Bendix.

The Court below did retroactively apply Bendix, but it correctly recognized that the "application" of the retroactive decision of this Court included the duty by the state to determine, consistent with due process, the appropriate remedy to be accorded the party aggrieved by the infirm statute.

A statute of limitation is not a fundamental right, the loss of which is a due process violation. Conversely, the Ohio Constitution guarantees the right of access to its courts. The Ohio Supreme Court's remedy analysis weighed the non-fundamental right of limitation of Petitioners against the vested right of access to the courts accorded Respondent by the Ohio Constitution. Under this analysis, the Court determined that the constitutional right substantially outweighed the right of bar of limitation, and refused to give Petitioners a remedy that would strip Respondent of her vested right of access to court.

In Chevron Oil, this Court enunciated equitable principles which are as applicable to remedy analysis as they are to choice-of-law inquiries. Utilizing those principles to determine the remedy to be accorded, the Ohio Supreme Court determined that Bendix overturned "clear past precedent" which was reasonably relied upon by her, and again refused to dismiss her complaint.

The remedy analysis by the Ohio Supreme Court was proper, equitable and balanced. The decision below should be affirmed.

But the U.S. Supreme Court reversed. The Court held that the dictates of Harper v. Virginia Dept. of Taxation, 113 S.Ct. 2510 (1993), mandated retroactive application of Bendix that resulted in dismissal of Hyde's cause -- and for Dalkon Shield victims, the inability to use Ohio's tolling statute to avoid the bar of limitations.

I had exhausted every avenue of relief afforded by the judicial system. It was now time to turn to the legislature. I approached the Ohio Academy of Trial Lawyers and asked for assistance, which it readily and earnestly gave. The Academy forged an association with the Ohio State Bar Association, and presented to the legislature a unified front to request special legislation in Ohio to protect Dalkon Shield victims. (fn. 65)

Additionally, after meeting with Ohio congressmen and senators, five Dalkon Shield victims represented by the firm presented their cause to the Ohio House of Representatives, and to the Ohio Senate. The testimony of the victims evoked compassion from all, resulting in an almost unanimous vote for legislation to assist. For their contribution to women across the state, and for service to the judiciary and their government, the five women who testified were honored at a special presentation by the Ohio Academy of Trial Lawyers.

When all was said and done . . .

Reflecting on the years, I am satisfied that my journey helped others. It was successful, as was the journey of so many other Dalkon Shield lawyers. Because of them, the system worked. Compensation was adequate for the preponderance of women injured by the Dalkon Shield IUD.

Prior to the bankruptcy, the vast majority of women injured by the Dalkon Shield had not filed suit against Robins. Robins' notice program prompted filings by many women who otherwise would never have pursued their claims. For them, the bankruptcy opened the doors to redress. For almost all claimants, resolution did not necessitate trial, arbitration, or even ADR. Slightly more than 100 claims were resolved through litigation and arbitration, (fn. 66) some by summary judgment dismissal. While 5,000 claimants utilized ADR, (fn. 67) the number was less than 4% of the total claims resolved. Clearly then, resolution in Robins' bankruptcy was primarily by settlement with the Trust.

The Dalkon Shield Claimants Trust conserved and invested its funds well. It determined that after payment of all claims, the trust corpus would not be depleted. Robins' Plan of Reorganization provided that all monies in the Trust at termination (fn. 68) must be distributed to claimants. Thus, in lieu of punitive damages, claimants were paid a "pro rata" amount which, unbelievably, equalled their original settlement, and resulted in a doubling of each claimant's initial recovery. The Plan of Reorganization which resulted from the efforts of so many -- Judge Merhige, lawyers acting both officially and unofficially in the bankruptcy, and Murray Drabkin, whose skills so greatly benefitted claimants -- resolved the claims of the largest group of victims injured by a specific product, except asbestos, in the history of this country.

As my journey draws to a close, I have but few regrets, and only one of them is lasting. Mine is a lament familiar to all trial lawyers. It is the lament of inadequacy. After a quarter of a century of effort to assist women, the relief given them seems so deficient. And frankly at times, it even seems meaningless. Life is so God-given precious, so beautiful, so incapable of price-tagging. Although tens of millions of dollars have been paid to resolve my clients' claims, each and every woman I represented would trade every dollar for the baby she lost. For those who never conceived because of the Dalkon Shield, the money, no matter how great the amount, will never satisfy the longing for children. If only there were a way to compensate in kind . . . but there is not.

. . . Now that my journey is at an end, I do anticipate new challenges, hopefully just over the horizon. What will they be? We shall see.