A DESIGN DEFECT IN THE DALKON SHIELD, an intrauterine device marketed by A. H. Robins Company in the early 1970s, seriously injured thousands of women; some died as a result of septic abortions, while others experienced nonfatal septic abortions, pelvic inflammatory disease or perforated uteruses, or gave birth to children with birth defects. Robins suspended sales of the product in the United States in 1974 and halted foreign sales in 1975.
The special tragedy of the Dalkon Shield disaster was that it easily could have been avoided, had Robins demonstrated a minimal concern for the health of the women in whom the devices were implanted. The company relied on inadequate tests, and ignored warnings from a co-inventor of the product and a quality control supervisor at the plant which produced the Dalkon Shield, as well as early reports of injuries suffered by Dalkon Shield users.
Bending the Law is Richard Sobol's compelling account of how a second injustice - also one entirely preventable - was done to Dalkon Shield victims in the Richmond, Virginia court of Judge Robert Merhige. In a careful and detailed fashion, Sobol traces how Robins manipulated bankruptcy law to limit its liability and how Merhige abused the rights of the injured Dalkon Shield users in order to resolve the case according to his predetermined plans.
In August 1985, having resolved more than 7,000 suits by Dalkon Shield victims but facing thousands more, Robins filed for bankruptcy in Richmond. The filing led to the transfer of all Dalkon Shield victims' cases to Merhige's court.
Among the results of Robins' maneuvering and Merhige's handling of the case: a group of aggressive attorneys representing Dalkon Shield victims in the suits against Robins were prevented from representing them in the bankruptcy proceedings; Dalkon Shield victims were prevented from suing Robins for punitive damages; andthe victims were unable to sue E. Claiborne Robins Sr., chair of the company's board, and E. Clairborne Robins, Jr., president and chief executive officer of the corporation, despite their potential personal liability for the company's misconduct.
One of the most striking aspects of Sobol's account is how the women injured by the Dalkon Shield were denied any voice in the proceedings. At the hearing to estimate the amount owed to all of the injured women, for example, Merhige refused to allow any of the victims to testify. In fact, Merhige determined that the women had no special right even to attend the hearing, despite their status as "parties in interest" and their legal right to be present. The overflow crowd at the first day of the estimation hearing, Sobol writes, "was treated just as curiosity seekers are treated at a sensational trial: they were admitted if there was room." Merhige's decision not to move the proceedings to a sufficiently large room, Sobol notes, was consistent with his stated view that there was not "any need for the ladies to stay around."
Ultimately, the bankruptcy proceedings were resolved by American Home Products' purchase of Robins. AHP paid $2.255 billion to a trust fund set up to compensate Dalkon Shield victims and issued $916 million of its own stock to Robins' stockholders. AHP - which, one industry analyst said, accomplished "the steal of the century" in acquiring Robins - and Robins' shareholders, particularly the Robins family, which received $385 million in AHP stock, were the winners in the proceedings. The big losers in the action were women outside of the United States, who are likely to have failed to have filed a claim by Merhige's imposed deadline, and U.S. women with serious injuries. Merhige denied women with serious injuries their right to have a jury determine their just compensation, and those women's share of the trust fund will be diluted by hundreds of thousands of claims by women with relatively minor injuries.
- Robert Weissman