When Dow Corning breast implants were first made available to women in the 1960's, safety barely seemed an issue. The US chemical company’s advertising boasted of gel-filled wonders that ‘should last a lifetime’.
But by the early 1990's, the promises proved tragically flawed. Many implants ruptured, causing serious illness and untold suffering. American juries began awarding multi-million-dollar judgements against Dow Corning, and the US Food and Drug Administration prohibited the further use of silicone implants.
In 1992, Slater and Gordon stepped in on behalf of Australian women, urging Dow Corning implant victims to join a class action. Thousands of replies were received, requiring three solicitors to travel nationwide to interview potential plaintiffs. The only reaction from Dow Corning Australia was an offer to help pay for the removal of the infamous implants, without any admission of liability.
The American way
Amassing a client base of about 2400 aggrieved women, Slater and Gordon planned to take action in the US, where the faulty products had originated and where most of the profits were funnelled. A blow came when Slater and Gordon lodged a claim in the US state of Michigan on behalf of some Australian women. The Michigan courts ruled that since the alleged damage was caused elsewhere, they could not decide the issues.
Undeterred, Slater and Gordon lawyer Jacinta Forbes immersed herself in American legal texts, and found that the law was different in Texas, where the doctors who invented silicon implants had practiced.
But time was fast running out. The state of Texas was about to change the law to bring it into line with the rest of the US. Slater and Gordon engaged Dallas attorneys, filing 2800 claims against several manufacturers before the final deadline of September 1, 1993.
Flying to Texas, the Slater and Gordon team appointed an American lawyer to represent the firm’s clients.
Slater and Gordon engaged US firm Silber Pearlman and the firm’s senior partner Reagan Silber agreed to take the case.
Silber quickly proved his worth at a crucial hearing before Alabama’s Judge Sam Pointer, who had full responsibility of coordinating breast implant litigation in the US. Before a packed courtroom, Slater and Gordon’s American representative cross-examined every member of the American Plaintiffs’ Steering Committee. Silber proved that the very lawyers who were claiming to represent the interests of foreign women actually stood to gain higher contingency fees if the settlement package was unfairly weighted towards US claimants.
Reagan was widely criticised by his American colleagues for this stance but his loyalty to his Australian clients was unwavering.
Pain and suffering
Meanwhile, fearing personal claims for damages, some Australian surgeons refused to release medical records of affected patients. But since Slater and Gordon's writs were lodged in Dallas, they could approach the Texas Supreme Court to request the Victorian Supreme Court to order that all medical records be handed over.
One of the all-too typical cases filed by Slater and Gordon in the US was that of Danielle. A 33-year-old mother of two, she had enjoyed good health until her breast implants went wrong. In 1994, eight years on, her right breast was ‘as hard as a cricket ball.’ Danielle suffered from extreme fatigue, migraines, aches and pinching sensations.
On February 12, 1994, Judge Pointer announced a ‘Global Settlement Fund’ of A$5.6 billion’, financed by major manufacturers of silicon implants. At first glance it was excellent news. But when the lawyers read the fine print, they saw that only three per cent of the money was allocated to foreign claimants, even though many times that proportion of implants were sold overseas.
This meant that Australian claimants might get only a few thousand dollars each. Slater and Gordon told its clients that ‘the agreement which has been reached is grossly prejudicial to you, and indeed to all Australian claimants.’ The firm advised clients to opt out of the settlement deal, thus retaining their rights to sue separately in the US or Australia.
Delays imposed by the American legal processes meant that time was running out for most Australian claimants to take up their only alternative – action in local courts. In June, 1994, Slater and Gordon lodged writs in the Victorian Supreme Court claiming unspecified damages against Dow Corning for supplying allegedly defective implants.
The lead plaintiff in the Australian action was Pamela, a 58-year-old mother of two who began suffering severe pains in 1989 after having Dow Corning breast implants. The pain worsened and both implants had to be removed in 1993. The operation took 10 hours because one was so badly ruptured. Pamela underwent more than 45 operations to remove silicone still working its way to the surface. Once a keen swimmer, Pamela could no longer raise her arms let alone swim laps.
When Pamela’s case began before Justice John Hedigan in the Supreme Court in June, 1997, Dow Corning Australia applied for the action to be permanently stayed or struck out, on the grounds that it was vexatious and oppressive. The judge ruled that the court ‘clearly does have jurisdiction to entertain the proceeding.’
Victory at last
In 2002, the 10-year battle for justice was finally over. On September 10, the Victorian Supreme Court’s Justice Barry Beach confirmed that more than 3000 Australian women would share $32 million in compensation from Dow Corning.
Justice Beach paid tribute to the work of Slater and Gordon, saying the firm ‘left no stone unturned’ in pursuing settlement of the women's claims, and that Slater and Gordon had achieved an outcome unmatched anywhere else in the world.
For the many women involved it was finally justice, after so many years of suffering in silence.
Primary source material: That Disreputable Firm, by Michael Cannon (MUP, 1998)