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HEADLINE: Dow Corning Tried To Destroy Memos On Dangers Of Implants

BYLINE: ANDREA D. GREENE; Staff

BODY:

Internal memos indicate Dow Corning Corp., a major silicon-gel breast implant maker, tried to destroy documents implying that it knew the implants were unsafe.

Attorneys representing thousands of Houston-area women in suits against the company said the information can be parlayed into bigger settlements and punitive damages.

In Alabama this week, attorneys for plaintiffs nationwide interviewed a Dow Corning researcher who said in a 1990 memo that her analysis of government survey data showed only 250,000 to 800,000 women had implants, rather than the 2 million Dow officials have claimed.

That could damage Dow Corning’s case, the plaintiffs’ attorneys said Friday, because it shows that although 2 million implants had been sold, many were sold to women who already had implants but were buying replacements—in some cases more than once—because of defects.

Dow Corning attorneys counter that the memo—written by researcher Mary Ann Woodbury—understated the number of women who actually have implants and that the sample of women in the government survey was too small to yield meaningful conclusions.

Further, Dow Corning says, the rate of defects cannot be determined by simply comparing the number of women who actually have implants to the number of implants sold, as the plaintiffs’ attorney want to do.

But the plaintiffs’ attorneys also point out that a Dow attorney, Greg Theiss, told Chuck Dillon, then Dow’s medical director, and Woodbury to destroy all copies of Woodbury’s memo, which states that “25.9 percent of the devices have had some type of problem associated with them.” It added, “This translates to 30.3 percent of the women with some type of problem.”

After hearing Theiss’ instructions, Dillon wrote a memo in which he called for a review of the matter by the company’s ethics committee. It agreed to do so.

Dow Corning attorney David Bernick on Friday disputed claims that there was an attempt to destroy copies of Woodbury’s memo and that Dillon’s call for an ethics committee review was a reflection of the company’s culpability.

On the contrary, he said, “The ethics committee is evidence of the company’s responsible position as a corporation.”

Attorneys on both sides agree that no documents were destroyed.

Richard N. Laminack, who represents hundreds of plaintiffs, said the memos will be used as leverage to negotiate settlements because they would persuade juries to punish Dow Corning.

“They knew specifically that the information they were providing to physicians and the (Food and Drug Administration) was incorrect, and they took steps to make sure that those folks did not get the correct information,” Laminack said.

But Bernick said the issue would not affect Dow Corning’s legal negotiations. “We think the information that is contained in memo is information that is not adverse to the company,” he said.

Another attorney called the memos a “smoking gun.”

“We regard the documents as very important,” said Price Ainsworth, an associate of Mike Gallagher, one of the 17 members of the national committee appointed by U.S. District Judge Sam Pointer to hammer out the settlement. “While it’s obvious that no documents were destroyed, it’s also obvious that the documents were ordered destroyed.”

Pointer, who oversees implant litigation nationwide, has ruled Dow Chemical Corp. and Corning Inc. are not liable for any injuries from silicone breast implants that use products from their joint venture, Dow Corning. Corp. He ruled the two companies are separate from Dow Corning, which actually made the implants.

Dow Corning continues as a defendant, along with other companies also involved in the manufacture of the implants, among them Bristol-Myers Squibb Co., the McGhan Medical unit of Inamed Corp. and Union Carbide Corp.

Pointer’s ruling means those companies share all the liability in a proposed $4.75-billion global settlement of both federal and state cases, lawyers said Friday. It was unclear whether the ruling will affect the proposed settlement, which would be paid over a 30-year period to some 12,000 women, if they forgo trials.

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