21 décembre, 2007 20:39

Transcript from a 1995 court trial against Dow Corning

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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

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.