When Dr. Khouri operated to remove the implants, he found that the left implant had ruptured and caused an intense inflammation in her chest tissue. He performed a mastectomy of her left breast. The doctor then reconstructed her breasts by taking tissue from her abdomen and part of her rectus muscle.
The woman subsequently developed abdominal wall and incisional hernias, which were repaired in 1994. Mesh was placed in her abdomen for support.
After a second hernia repair, the woman developed permanent abdominal wall weakness, which requires her to wear external support constantly. It was determined that additional surgery would be too risky.
In her products liability action, the woman claimed the Surgitek smooth wall implant was defective because it was made with an extra thin shell making it more susceptible to ruptures.
She also alleged the implant was negligently designed because of the thin wall and that the implants were not adequately tested when the company moved from a thicker to a thinner wall.
The jury returned a verdict in favor of the woman on the products liability claim for $2.25 million with 100 percent fault to the defendant, and for $2.25 million on the negligent design claim with 50 percent fault to the woman (the manufacturer argued her smoking enhanced her injuries). Punitive damages of $2.25 million were also awarded.
The case is Haltom v. Medical Engineering Corporation.
According to experts, some breast implant plaintiffs are left with claiming local injury -- or injury to tissue directly affected by the leaked silicone -- because of a lack of evidence showing the leak caused disease or systemic injury.
"Local injury cases focus on the more tangible aspects of where silicone actually goes when it leaks and the damage it causes to the tissue itself and in terms of the surgeries that are then required," said attorney David N. Bohrer, who worked with Lowe on the case.
"The challenge is showing the silicone caused the damage because the defense will say there is no problem or that it was caused by something else," Bohrer pointed out. He emphasized the importance of having a pathologist testify to explain to jurors how silicone affects tissue.
"So the first step is to show the gel leaked and that surgery was re-quired to remove it," Bohrer said.
Kansas City attorney Matthew D. Keenan, who represented the manufacturer, said, "Breast implant manufacturers have won more than 70 percent of the cases that have gone to trial to date.
"This is the first such case in Missouri, and we believe the verdict to be an aberration," he said, contending that "science is strongly on the side of the manufacturers."
In this case, tissue from the wo-man's abdomen was used to rebuild her breasts after the rupture, and defense attorneys claimed the woman strained her abdominal area with her smoker's cough after the tissue was removed.
Discovery
The attorneys pointed out that discovery in breast implant litigation must often be culled from the multi-district litigation based in the Northern District of Alabama, where federal breast implant cases were consolidated in 1992.
"This meant there was a voluminous amount of material to get through, only some of which was relevant to our case," said Bohrer.
"Also, we were prevented from deposing any Medical Engineering Corporation employees because they had already given their depositions in the MDL litigation," he said. "Thus we had to use the MDL depositions at trial."
Bohrer noted that the MDL defendants are enjoined from denying the authenticity of millions of documents produced during the discovery.
Expensive
Lowe acknowledged that implant cases can be expensive for small firms to try he said it took an attorney and a law clerk the greater part of two months to get through more than 20 boxes of documents and hours of videotapes.
And he said at trial it was essential to pare the information down for the jury.
"Find what is relevant, keep it short and present the best sound bites to the jury," he advised. "We were able to convince the jury the implants were placed on the market with no real long-term testing."
Lowe said that in order to educate the jury from the outset, he put on a materials science engineer as his first witness. The expert focused attention on the manufacturer's conduct.
"We had the expert go through documents to show what the defendants knew, because we wanted the jury on our side right out of the chute," he said.
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August 28, 2000
