The plaintiff was visibly uncomfortable. She wouldn't look at the defense lawyer as he ran through his deposition questions: "How large were your breasts before the surgery?" "What size did you want them to be?" "Why did you want them to be that size?" The plaintiff shifted in her seat and avoided eye contact as she responded, her replies pierced with defensiveness. "It was awkward," says Marla Persky, the chief of litigation at Baxter Healthcare Corp. at the time, who was sitting at the defense counsel's table.
It was 1991, and Baxter was in the early stages of defending against what would become a monsoon of lawsuits filed by women claiming that their leaky silicone breast implants had caused a slew of illnesses, such as chronic fatigue, headaches, arthritis and skin diseases. The suits accused Baxter and other defendants of defective design and negligence.
The storm clouds had started gathering in December 1990, when CBS News aired a program hosted by Connie Chung which chronicled the stories of five women who claimed that their breast implants had made them sick. A few days later, Representative Ted Weiss of New York led a congressional hearing to examine the dangers of silicone breast implants. Although implant-related product liability suits had been on Baxter's docket since 1985, when the company bought American Hospital Supply Corp., whose subsidiary Heyer-Schulte made the devices, the program and the hearing put the issue on a national stage for the first time.
In the pre-1990 suits, "women would want Baxter to pay for their deflated implant," says Perksy, who is now general counsel at Boehringer Ingelheim USA Corp. "Suddenly it went from cosmetic complaints to complaints of death, destruction and illness on the part of unsatisfied patients. My recollection is that almost from the week after the Connie Chung show, we started to see lawsuits come in by the handful, then by the dozen, then several dozen, then by several hundreds."
It was the same situation for other manufacturers, such as Dow Corning (the nation's largest manufacturer of the devices), 3M and Bristol-Myers Squibb Co. Seven-figure wins for early plaintiffsa $7 million jury verdict against Dow Corning and a $25 million jury verdict against Bristol-Myersencouraged more litigation, as did media coverage of the cases, which often highlighted the tribulations of sick women who blamed their illnesses on implants they'd received for cosmetic or reconstructive reasons.
Almost overnight, the mass tort had become bet-the-company litigation for Baxter, which would ultimately face 15,000 lawsuits globally. The invasive questions about breast size and augmentation in the company's early depositions had the potential to make a bad situation even worse. It made the male attorneys appear heartless.
"At trial, I didn't want jurors made uncomfortable by the questions," Persky says. "I was concerned about the sympathy factor for plaintiffs. I wanted jurors to step back and listen to evidence from a more dispassionate, more clinical view."
To Persky, the solution was simple but, for the time, unorthodox: She'd have female attorneys ask the questions. Persky decreed that every trial team had to include at least one woman who would have a meaningful role. This was no time for window dressing. "I'd seen the way the questions and answers flowed between female attorneys and female plaintiffs," Persky says, and it was much more academic: "There was no awkwardness or sexual innuendo."
Over the better part of the next decade, Baxter assembled a half-female trial team. The women who ended up joining and often leading Baxter's trial teams were instrumental in implementing the company's strategy, which was to fight the suits in court. Baxter went to trial 25 times, which resulted in 18 defense verdicts; 11 of which were won by teams led by women lawyers.
Although female attorneys appeared on other defendants' trial teams, Baxter's emphasis on assigning women lawyers to highly visible roles stood out and likely contributed to the company's overall success at trial, says Zoe Littlepage, whose firm, then known as Ravkind & Littlepage, represented 750 plaintiffs in the litigation. "I thought it was a very clever and progressive move," Littlepage says. "It was very smart of Baxter to have women on every trial team. It was a clearly recognized strategy that we would talk about how to counter at meetings."