The Right Question : One Man’s Effort to Tell Dalkon Story

The question arose during an obscure pretrial deposition late in the morning on July 30, 1984, just as the lawyers in the Minneapolis federal courthouse were beginning to think about where to eat lunch.

Plaintiffs’ attorney Michael Ciresi asked a former employee of the A. H. Robins Co. whether any documents concerning the firm’s problem-plagued and discontinued intrauterine contraceptive device, the Dalkon Shield, had ever been destroyed. This was a routine question posed by Ciresi many times before during the lengthy Dalkon Shield litigation. The answer he always heard was no.

Sitting on the witness stand this time was Roger L. Tuttle, 54, the former in-house attorney for Robins who handled the company’s Dalkon Shield litigation during the early 1970s. Tuttle at first hesitated, saying nothing. Ciresi, surprised, caught the eye of his colleague, Steve Brosnahan. Then Tuttle answered.

“Yes, sir,” he said.

Making Sure

Ciresi wanted to make sure the question and answer were understood. “You’re aware of documents that have been destroyed by the Robins Co. concerning the Dalkon Shield?”

Again Tuttle said: “Yes, sir.”

In this fashion, a usually well-guarded door into the corporate world swung open, and it has yet to be closed.

The extraordinary decision by a former in-house attorney to talk publicly about the goings-on inside a multinational conglomerate, and the corporation’s decision to respond, yield some insights into how a venerable century-old company has come to the brink of losing both its reputation and financial health. A. H. Robins Wednesday filed for protection under Chapter 11 of the U.S. Bankruptcy Code.

A. H. Robins, a Richmond, Va., firm whose $611 million annual revenue comes from sales of such items as Robitussin cough syrup, ChapStick and Sergeants pet care products, emphatically denies Tuttle’s charges about document destruction and calls him a “disgruntled former employee.”

‘Ongoing Fraud’

But two court-appointed special masters last February concluded that the evidence “substantially corroborates” Tuttle’s charges. In a written report, the masters said a strong prima facie case exists that Robins “engaged in an ongoing fraud by knowingly misrepresenting the nature, quality, safety, and efficacy of the Dalkon Shield. The ongoing fraud has also involved the destruction or withholding of relevant evidence.” In law, prima facie evidence establishes the presumption of fact unless refuted.

Tuttle’s deposition was not the beginning of A. H. Robins’ troubles. But its impact has been considerable, and it has played a role in forcing Robins to seek protection in bankruptcy court.

Lawyers pressing Dalkon cases against Robins this year have introduced it as evidence at trials. Judges have grown increasingly hostile to the corporation. Punitive damage awards have mushroomed in number and size. Last May, at a trial in Wichita, Kan., where the plaintiff’s attorney displayed enlarged pages of Tuttle’s deposition, the jury awarded one woman nearly $9 million, including $7.5 million in punitive damages, the largest such verdict yet against Robins.

An average of 371 lawsuits continue to be filed against Robins every month. The company has been forced to hand over more and more documents during individual trials and during a newly reopened multidistrict discovery proceeding in Wichita.

Not ‘Traditional Enemy’

“Tuttle is not your traditional enemy,” said William R. Cogar, a Richmond attorney representing Robins. “You know you are going to get certain attacks, and their impact is diluted because of who they come from. But when your own in-house attorney, a born-again Christian, says this. . . . Well, in the past nine months we have been buffeted and kicked in the ass by every judge.”

Tuttle joined Robins in 1971, at the age of 40, after working in private practice in Mississippi and as a staff attorney for Exxon Corp. and a Virginia insurance company. Soon after, the first Dalkon Shield lawsuits arrived on his desk.

Tuttle visited the company’s medical department to learn what the claims were about.

‘Don’t Worry’

“Everyone patted me on the head, in effect, and told me, ‘Don’t worry,’ ” he said recently here in his Tulsa office. “If there’s a problem, they said, it’s with the physicians who pushed too hard inserting the IUDs or inserted them when the women were already suffering from infections. They told me all those liberated women were hot to go and just couldn’t wait for the infection to clear up.”

At the time, Tuttle accepted, even embraced, this answer. He acknowledges that he devised an aggressive legal strategy that called for peppering women plaintiffs with a laundry list of specific, detailed questions about their sex lives, in hopes of intimidating them into dropping their claims.

He also wrote a memo to Robins executives, advising that recalling the Dalkon Shield would be tantamount to an admission of liability. “We ought to let it die slowly,” he suggested.

‘This Is War’

At the time, Tuttle said, he was thinking: This is war. You have to do what you can for your client.

“I hang my head in shame that I was part of it,” he said. “I displayed a misplaced zeal. But I also had not been told of many things back then.”

He would soon learn more, but only in a roundabout fashion.

In September of 1974, Tuttle found himself in Los Angeles at the first Dalkon case to go to trial. Something was odd. During the opening arguments, plaintiff’s attorney Curtis Gemmill was promising to prove things that Tuttle knew nothing about.

Gemmill was coming up with evidence about Dr. Hugh J. Davis, the Johns Hopkins University medical school professor whose research Robins was using to trumpet the shield’s superiority. It seemed that Davis was, in fact, a co-inventor of the shield and shared a 10% royalty on every IUD sold.

“That’s when I began to realize there was a whole mass of information I didn’t know about,” Tuttle said.

Chagrined, Embarrassed

His feelings, he said, were ones of chagrin and embarrassment. As the case was ending in a mistrial, Tuttle called several Robins officials from Los Angeles and demanded that he be provided with every single piece of paper, favorable or unfavorable, about the shield. He said several executives balked and complained to Tuttle’s boss, general counsel William Forrest Jr.

When he did receive some of what he asked for and realized what had been withheld, Tuttle said: “I lost my temper with a number of folks.” In the months that followed, other documents gradually surfaced during other proceedings against Robins.

Among the memos Tuttle eventually saw were several written when the shield was first being considered, acquired and marketed by Robins.

One was dictated on June 9, 1970, by Dr. Fred A. Clark Jr., then vice president and medical director, after visiting Hugh Davis in Baltimore. Clark reported that Davis’ raw data indicated a much higher pregnancy rate than Davis was claiming.

A memo written the next day by W. Roy Smith, director of product planning, expressed concern about marketing a device not identical to that on which Davis’ research was based. Copper had been added to the IUD’s composition, which introduced a drug effect to what had been only a device, and possibly made the shield subject to FDA regulation.

Figures Questioned

On June 11, senior vice president Dr. Jack Freund, then the company’s highest-ranking medical doctor, questioned Davis’ figures and said: “The need for continuing research effort . . . and added studies to support the effectiveness and safety of this device should be emphasized.”

It was just one day later, Tuttle could not help but notice, that Robins bought the rights to the Dalkon Shield, paying $750,000 to Davis and three colleagues.

Eventually, Tuttle saw other memos that suggested even greater safety problems.

The late Robert Nickless, then the company’s product management coordinator, in a memo written two weeks after the IUD was acquired, advised that “the string or tail situation needs a careful review since the present tail is reported (by a co-inventor) to have a wicking tendency.”

Tuttle was stunned when he finally saw that document. At the heart of many Dalkon Shield lawsuits was the claim that the shield’s unusual multifilament tail acted as a wick, drawing bacteria-laden fluids into the sterile uterus.

Then Tuttle found a memo written nine months later in which Robins quality control supervisor Wayne Crowder warned that his tests indicated the string would wick bacteria. Other documents showed that Crowder’s warning was relayed through several officials to medical director Clark.

Problems Reported

Finally, there were memos and letters indicating that Robins salesmen in the field, as well as doctors, were reporting problems with infection as early as 1971. On June 23, 1972, an Ohio physician named Dr. Thad Earl wrote to say he had five patients who suffered septic abortions because of infection after using the shield. Earl, as it happened, was one of the men who sold the shield to Robins.

Eventually, during the course of later litigation, almost all these documents would surface. But they were not, in 1974, before the public eye, or Tuttle’s.

The second shield trial began in Wichita in late October, 1974. Earlier, during the pretrial discovery process, Tuttle had been sitting next to the plaintiff’s attorney, Bradley Post, when a Robins official dumped a pile of documents on the table. Sifting through them, Post stumbled upon the first of those key documents to become public--the Clark memo warning about Davis’ pregnancy rate data. Tuttle froze. He had never seen the document before.

The Clark memorandum, Tuttle realized, was a devastating admission. By itself, it proved nothing about the cause of injury to any woman. But it demonstrated that Robins had prior knowledge of the shield’s limits even before it bought the device, and may have misrepresented its effectiveness. The inflated claims could cause considerable harm to a woman trying to avoid pregnancy for medical reasons. They could also make a jury angry.

Punitive Damages

On Feb. 6, 1975, the Wichita jury awarded Connie Deemer $25,000 in general damages and $75,000 in punitive damages. It was the first punitive damage award Robins incurred in the Dalkon litigation.

Forrest, the company’s general counsel, was furious at Tuttle. He was convinced Robins lost the Deemer case because of the Clark memo, and he blamed Tuttle for letting it fall into Post’s hands.

Forrest told Tuttle to find another job. Stunned, feeling he was being made a scapegoat, Tuttle appealed to the company president at the time, William Zimmer. Tuttle was reinstated but relieved of the Dalkon litigation.

One year later, Tuttle quietly resigned and took a new job as assistant general counsel for Dan River Inc., the Danville, Va., textile manufacturer. Tuttle’s last direct contact with Robins came in March of 1977. Bradley Post had subpoenaed him to give a deposition for a multidistrict litigation proceeding designed to assemble a record for Dalkon cases throughout the country.

Wanted Assurances

Tuttle wanted assurances that Robins would not sue him for violating an employee confidentiality agreement and that Robins’ insurance policy would cover him against costs of legal defense or judgments if he were sued by others. He received those assurances.

As it happened, Tuttle’s multidistrict deposition the next month proved uneventful. Tuttle said he might have talked about document destruction then, but nobody asked him.

After that, Tuttle disappeared from the Dalkon Shield saga. Six years would pass before he was heard from again.

For much of that time, Robins fared well in the courts. After the Deemer case, not a single plaintiff won punitive damages for five years. About 7,000 cases were settled out of court for the relatively low average of $30,000 a claim. Most of the earliest lawsuits were settled for much less--some for less than $10,000.

Plaintiffs’ lawyers would later argue that the low settlements came because Robins withheld reams of information about the shield’s history. A sworn affidavit filed by U.S. District Judge Frank G. Thieus, who presided over the multidistrict litigation proceeding, seemed to support that claim.

‘Paucity of Information’

“A great deal of time and effort was consumed attempting to establish the extent to which Robins officials, and particularly its medical department, has knowledge concerning the dangerous propensities of the Dalkon Shield . . . ,” Thieus wrote. “There was a paucity of information concerning adverse reports by physicians and patients. . . . The long experience . . . acquainted me with a pattern of repetitive and dilatory tactics which I frowned upon.”

Two events in late 1983 triggered the turning point in the Dalkon litigation.

One of those has attracted much attention. Twenty-three lawsuits against Robins were placed on the calendar of Miles W. Lord, then the chief U.S. district judge for Minnesota. In widely publicized actions, Lord eventually denounced Robins executives, reopened discovery, and ordered the company to produce, for review by court masters, tens of thousands of documents never before presented in court.

The second event went largely unnoticed. While Lord was entering the fray for the first time, so was Michael Ciresi’s law firm, Robins, Zelle, Larson & Kaplan. Most lawyers suing Robins had contented themselves with addressing the issue of the shield’s defects. But Ciresi and his colleagues made a decision to also go after the question of Robins’ negligence.

Journal Article

Doing research in his downtown Minneapolis office one afternoon in October of 1983, Ciresi came across an interesting but little-noticed article in the previous month’s edition of the Oklahoma Bar Journal. Titled “The Dalkon Shield Disaster 10 Years Later--A Historical Perspective,” it spelled out in some detail the history of the shield’s development, making reference to a few of the early memos that passed among Robins executives. Then it offered a conclusion:

“The temptation to rush to market for financial gain was too great to resist. . . . One lesson to be learned from this experience is to do one’s homework ahead of time and another lesson is to place less emphasis on the profit motive in any high-risk area as important as human health.”

Ciresi turned back to the article’s beginning to make note of the author. He was an associate professor of law at the O. W. Coburn School of Law at Oral Roberts University in Tulsa. His name--Roger L. Tuttle.

Tuttle had left Dan River for the university in 1982. Over the years, he had from time to time been contacted by lawyers seeking his cooperation in Dalkon litigation, but he had always referred them to his multidistrict deposition. He was still worried by the attorney-client confidentiality privilege. He also wanted to put that period of his life behind him.

Born-Again Christian

Even before coming to Robins, he had considered himself a born-again Christian. The bookshelves in his small campus office here in Tulsa are adorned with such volumes as “On Being a Christian and a Lawyer,” and “The Conscience of a Lawyer.” He believes in Jesus historically and as his personal savior.

His religious beliefs had always caused him feelings of regret when he thought of his Robins days. “I always try to balance my Christian self with a desire to be an outstanding professional,” he said. “Gradually, I came to see you can’t keep the two separate.”

In the late fall of 1982, Tuttle organized a medical-legal ethics seminar at the law school. Others there asked him to talk about the Dalkon Shield. “I was reluctant, but I agreed,” he said. “Then, when I started pulling material together for that, a colleague suggested I write an article for the bar journal. My wife says it was the work of the Lord, leading me to that.”

One night in December of 1983, after the Minneapolis lawyers had discovered Tuttle’s article, Ciresi’s colleague, Steve Brosnahan, called the law professor in Tulsa.

Door Ajar

To Brosnahan, it was clear from the conversation that Tuttle, rather than being eager to tell all, was deeply afraid of violating the attorney-client privilege. Tuttle said he would not cooperate. But when he hung up, Brosnahan felt the door had been left slightly ajar.

During much of the next month, Ciresi was traveling widely about the country on Dalkon litigation business. He stopped in Tulsa on Jan. 4 to visit Tuttle.

Would Tuttle give a deposition, Ciresi wanted to know, if there were specific controls? A magistrate would preside to rule on questions involving attorney-client privilege. The proceedings would be taped on a video-audio machine so Tuttle would never have to go through the same thing again. Robins representatives would be notified and allowed to be present to protect the company’s rights.

Tuttle was tempted. But he did not give Ciresi an answer.

Lawsuit Feared

Robins might sue him, he worried. The state Board of Professional Responsibility might take action. He might lose his job at the university. On the other hand, he thought, maybe he had a duty. There were injured folks whose rights had been bulldozed. Maybe it was time to get it all out.

While Tuttle pondered these questions, Judge Lord in his Minneapolis courtroom on Feb. 29, 1984, delivered his controversial, highly publicized denunciation to Robins’ general counsel Forrest and president E. C. Robins Jr. He called their actions “monstrous mischief” and “corporate irresponsibility at its meanest.”

Near the end of his hourlong exhortation, Lord spoke a few words that went largely unnoticed at the time: “If the thought of facing up to your transgressions is so unbearable to you--and I think it will be difficult for you--you might do as Roger Tuttle did and confess to your Maker and beg forgiveness and mend your ways.” The judge apparently was referring to Tuttle’s bar journal article.

In Tulsa one morning in early March, Tuttle found an envelope in his office mail from Ciresi. It contained a transcript of Lord’s speech.

Lord’s Courage

“I was impressed with what I read,” Tuttle said. “I showed it to my wife, Beverly, and we talked it over. I drew courage from Judge Lord. I figured if Lord had the courage to do that, then I had enough courage.”

On March 16, Tuttle drafted a letter to Ciresi. “After giving the matter much prayerful consideration,” he wrote, “and in light of Judge Lord’s recently reported comments to several of Robins’ officials, I am now prepared to submit to an oral deposition.”

On the morning of July 30th, Tuttle began his deposition in the Minneapolis federal courthouse. It would continue for three full days, and the printed transcript would cover 700 pages.

Tuttle spent much of the first morning talking about his unfamiliarity with key Robins memos during the early days of Dalkon litigation. When Ciresi, in an off-the-cuff manner, finally asked about document destruction, Tuttle took a deep breath and told his story.

After the Clark memo was uncovered at the Deemer trial, Forrest had ordered that all Dalkon documents, especially those related to wicking of the tail string, be rounded up from the files of top company officials, Tuttle testified. Then, Tuttle said, Forrest had called him into his office on Feb. 2, 1975, and ordered that hundreds of those documents be destroyed.

Order Relayed

Tuttle said he relayed that order to three other employees. The trio gathered the documents and presented them to Tuttle for review. Then the three burned them during the first two weeks of February, in a forced-draft furnace at Robins’ headquarters normally used to incinerate contaminated products.

Tuttle said because of his own uneasiness and doubts, he had withheld from the burning 13 of the most sensitive documents. He had kept them all these years, and had brought them to the deposition. With that, Tuttle handed over the documents to Magistrate Earl Cudd.

He also made available a memo to himself he said he had written at the time, labeled “records destruction.” The memo listed the initials of various Robins officials under the headings of “files searched,” “persons doing search,” and “persons doing destruction.” It gave the dates of the activity as Feb. 3-7 and Feb. 10-14 of 1975.

“Mr. Forrest blamed me for the fact that the Clark June 9th memo of 1970 came to light,” Tuttle said. “His comments were in words to the effect that he didn’t ever want that to happen again, and that the only way that it wouldn’t happen would be if the documents were no longer in existence.”

‘Ongoing Fraud’

A magistrate’s ruling on what constitutes the attorney-client privilege is always a discretionary call. If there is an “ongoing fraud” involved in the attorney-client relationship, the confidentiality privilege goes out the window. After Tuttle’s testimony about the document destruction, Cudd ruled time and again that Tuttle could answer Ciresi’s questions.

The next day, Robins’ vice president for public affairs issued a statement: “These allegations by Mr. Tuttle are false. The management of this company has never ordered or permitted the destruction of Dalkon Shield documents, and there is no reason to believe any such destruction ever occurred.”

In time, Robins also offered transcripts of deposition testimony by Forrest and all those Tuttle had implicated. Each denied knowledge of or participation in the destruction.

But two court-appointed special masters reached a different conclusion in a written report last Feb. 21.

Peter N. Thompson, a law professor at Hamline University in St. Paul, and Thomas C. Bartsh, a Minneapolis attorney, had been sent by Judge Lord to Robins headquarters to decide which of thousands of documents should be produced in court. Part of their task was to decide whether Robins officials and lawyers had participated in the sort of fraud that would allow documents covered by attorney-client privilege to be made public.

Prima Facie Case

They concluded that the plaintiffs had established a prima facie case that Robins had engaged in an ongoing fraud by knowingly misrepresenting the nature of the shield and destroying or withholding relevant evidence.

The masters acknowledged that Robins’ denials created a factual dispute, but observed that Tuttle’s testimony “is given at some risk to his professional and economic standing,” while the Robins’ employees’ testimony “is consistent with their self-interest.”

Robins had argued that most of the documents Tuttle saved in early 1975 eventually were produced during litigation and so all copies could not have been burned. Tuttle’s response was that some copies of those documents apparently escaped the roundup. The masters felt they cleared up this confusion when they found among Tuttle’s cache one key damaging document that had never been produced in court--the June 11, 1970, memo by Roy Smith, worrying about the addition of copper to the IUD.

According to the markings on the document, at least three copies should have been found in the files of A. H. Robins, but only Tuttle had a copy.

The memo, the masters said, “substantially corroborates the essence of (Tuttle’s) story.”

Not a Finding of Fact

The masters’ report was not by itself a finding of fact. The Minnesota discovery effort was interrupted and, in effect, superseded by the broader multidistrict litigation proceeding in Wichita, so the masters’ report has yet to be adopted by a federal judge.

But Judge Thieus in Wichita, after considering the masters’ report, oral pleadings, written briefs and a wealth of other evidence compiled during the almost 10 years he has presided over Dalkon multidistrict proceedings, on May 29 reached even broader conclusions than did the masters.

He found there was a prima facie case that Robins had sought legal counsel as part of the act of commiting a crime. He ruled a prima facie case existed that Robins had failed to adequately test the shield, had attempted to develop misleading evidence in support of the IUD, had ignored mounting reports of problems, had relied upon invalid studies to refute them, and had devised a cover-up to obscure the company’s responsibilities and liabilities.

The opinion was not a ruling that Robins was actually guilty of fraud. Thieus’ findings were only for the purposes of discovery, and thus were limited to establishing that plaintiffs had made a “threshold” showing of the type of fraud that allows normally privileged documents to be produced in court. But Thieus allowed the Tuttle deposition itself to be added to the multidistrict litigation record, and that, combined with the thrust of the judge’s ruling, has taken its toll in courtrooms across the nation.

Company Fought Back

Robins in recent months fought back. The company compelled Tuttle to testify at another deposition in Tulsa last May 14. Two weeks later, Robins held a rare press conference in Richmond, at which spokesmen charged that Tuttle had concocted the entire records-destruction story.

At the news conference, in subsequent interviews, and during the Tulsa deposition, the two sides traded arguments and explanations that seemed to blur matters.

Tuttle was at a trial in El Paso during the second week of February in 1975, so he could not have been reviewing Dalkon documents in Richmond, Robins said. Tuttle’s “records destruction” memo was created after he left Robins, since it was written on a company note pad that had a half-inch cut off the bottom to remove the Robins logo--the type of pad Tuttle used at Dan River. Tuttle concocted his story because he held a grudge against the company for making him a scapegoat.

Tuttle, in turn, acknowledged the El Paso trip, but noted he was in Richmond part of the week and had “never said that I stood at the incinerator and counted documents one at a time as they were put up the flue.” While working at Robins, he had the company logo trimmed from memo pads he intended to use for personal use, and “I just happened to pick that pad from the drawer that day.” Whatever grudge or worries about lawsuits he harbored in 1977, Tuttle said, he has no reason to feel that way now, after the assurances the company gave him and the passage of time.

Fabrication Suggested

Near the end of the Tulsa deposition, when Robins attorney Charles Socha suggested point-blank that Tuttle had fabricated the entire records-destruction story in 1977 as an “insurance policy” against litigation, Tuttle varied momentarily from his normally measured responses.

“No, sir,” he said. “It happened, and I know it happened, and Mr. Forrest knows it happened. And I will say this for the jury. That I, like you Mr. Socha, like Mr. Forrest, like all of us one day, will stand before Almighty God, and in this respect my conscience is clear.”

Robins lawyers for awhile took satisfaction in feeling they had managed to cast some doubt on Tuttle’s charges. But the lawsuits kept coming. Late last month, a Robins spokesman for the first time began talking about the possibility of filing for bankruptcy.

Looking back at the past year’s events, Tuttle has no regrets about speaking out.

“I regret only that I didn’t draw the line in 1975 and take the risk of relocating. At the time, I wondered what I would do. I was 44, with two teen-age children in private schools. And it was not illegal to burn the documents, because there was no non-destruct order from a court then. When the choice is not clear-cut, black-white, right-wrong, I think any of us can persuade ourselves that it won’t really hurt.”