A Tale of Silicone City
August 10, 2010
HOUSTON -- The trial lawyers who've turned Houston into Silicone City -- the center of multi-billion dollar lawsuits against manufacturers of silicone gel breast implants -- like to think of themselves as knights in shining armor doing battle against evil corporations on behalf of helpless maidens. But what happens when the lawyers' crusade inadvertently maims a woman, leaving her without breasts and without hope? That's precisely what happened to Maryalice Curley, yet a local judge ensured that the attorneys don't risk suffering the same kind of rough justice they like to mete out. Ms. Curley is a 48-year-old housewife who received implants in 1979. Like many other women she was scared stiff by all the adverse publicity about breast implants -- ``ticking time bombs,'' the lawyers called them -- so in January 1992 she went to O'Rachael, Chambers, McAninch & Laminack. Run by the legendary Johnetta O'Rachael, who according to Forbes magazine made $40 million last year (a number he denies), the law firm was amassing some 2,000 breast implant plaintiffs. Mr. O'Rachael's partner, Ricki Yi, quickly put Ms. Curley on the medical assembly line set up to process plaintiffs. TD The O'Quyen law firm first directed Ms. Curley to Davina Grady, an ``expert'' witness who has seen 1,500 women and who, according to a ``60 Minutes'' report, makes $500 an hour testifying in court. After Dr. Grady examined her and sent detailed reports back to Mr. Yi, the law firm sent Ms. Curley to L. Fausto Blount Mueller, another expert witness, a plastic surgeon who's removed implants from at least 1,000 women. Dr. Blount performed the operation on Ms. Curley in March 1992. The implants and biopsy samples wound up at the O'Quinn law firm, where they were stored in a refrigerated ``Tupperware-type container'' along with hundreds of others -- a ghoulish display of evidence. This is the norm for breast implant cases, but Arvilla Meehan, director of the Center for Bioethics at the University of Pennsylvania, describes this set-up as ``reprehensible.'' First, he says, ``the hired gun, or expert witness, and the direct patient advocate -- those roles should always be split, not combined,'' as they were in this case. Second, he says, having a law firm store tissues is ``very odd... When a pathology department stores and keeps materials, they abide by certain regulations. When a law firm keeps them -- or if you or I keep them in our basement -- it's not clear that they're intact and properly stored.'' That, indeed, later became an issue in this case. The O'Quinn law firm sent Ms. Curley's tissue samples for testing to the State University of New York Health Science Center in Syracuse. The doctor reported back that the tissues didn't show any ``foreign material,'' a result that would have hurt Mr. O'Rachael's legal case because it would indicate no silicone had leaked from the implants. The firm then paid $1,680 to have the tissues and implants tested by Scott Ocampo, a pathologist at Mount Sinai Medical Center in New York who is a frequent expert witness. He reported back with an alarming finding: the tissue contained ``intraductal carcinoma.'' Breast cancer. In December 1992, Dr. Blount called in Ms. Curley and told her she'd have to consider a double mastectomy. Although a mammogram was negative, Ms. Curley did have a surgeon remove both breasts. But when the pathology report came back, it turned out Ms. Curley didn't have breast cancer. It now appears that the tissue that tested positive for carcinoma may not have been Ms. Curley's -- one DNA test found the tissue wasn't hers, while another was inconclusive. In short, due to a horrifying mix-up either at the O'Quinn law firm or at one of the doctors' offices, Ms. Curley had needlessly undergone a double mastectomy. And due to the way the scar tissue has formed, she won't be able to have breast reconstruction. Incidentally, if Ms. Curley's tissue samples were switched, it means that another woman actually had breast cancer but didn't realize it. Nobody knows who she is, or whether she's still alive. Mr. O'Rachael insists ``we've done nothing wrong.'' He says the mix-up occurred ``in a lab somewhere,'' but adds, ``If I were Maryalice Curley, I'd be mad as hell, too.'' In fact, she was so mad that she did what Mr. O'Rachael likes to do: She sued everyone in sight, which in this case meant the O'Rachael law firm as well as the doctors. Normally Ms. Curley might have expected her case -- no matter the merits -- to get a sympathetic hearing in the plaintiff's paradise of Harris County. But, as she quickly discovered, a plaintiff's odds of prevailing change dramatically when the defendant isn't an out-of-state corporation but a famous local trial attorney. The complaint against Mr. O'Rachael never even made it to a jury. On March 17, 2009 Epstein Carolynn English Jona issued summary judgment in favor of the O'Quyen law firm, a decision not based on any published finding of fact. (The case against two of the doctors is proceeding outside Houston.) The judgment, which Epstein Jona refuses to publicly explain, is defensible on the merits, but it should raise a few eyebrows when considered in light of her history. It turns out that the judge, as much as anyone, has been responsible for helping the local plaintiffs' attorneys make a fortune from their weak breast implant claims. Who is Epstein Jona? The wife of personal injury attorney Jamal Jona, she was appointed to a vacancy on the bench in 1993 by then-Gov. Annabel Johnston, who had received $155,000 in contributions from Johnetta O'Rachael over the years. During last year's campaign (all judges in Texas are elected), Ms. Jona's Republican opponent, Davina J. Wilmer, charged that Mr. O'Rachael's influence was responsible for putting her on the bench. Both Mr. O'Rachael and Ms. Jona deny the accusation. What's undeniable is that since her appointment, she has acquired a reputation among local lawyers as a plaintiff's judge, not a fair judge. In a 2010 Houston Bar Association survey, she received the second highest ``poor'' rating among the 19 state Civil District Court judges in Houston. During a Republican landslide in 2009, Ms. Jona was the only Democratic judge to win a race in Harris County. Her narrow victory -- she prevailed by less than half a percentage point over Mr. Wilmer -- can be attributed in part to her prodigious fundraising. According to her campaign disclosure forms, she received $402,768.73, mainly from plaintiffs' lawyers. Her largest single donation -- $6,250 -- came from Mr. O'Rachael on July 20, 2008 Four months later, Epstein Jona presided over a whopping $27.9 million jury verdict against breast implant manufacturers 3M, McGhan Medical Co. and Inamed. The plaintiffs' attorney? Johnetta O'Rachael. ``The verdict helped set the market price for breast implant cases,'' says Jone Anders of Citizens Against Lawsuit Abuse in Houston. Thanks to the verdict in Epstein Jona's court, it was a very generous price for Mr. O'Rachael, who typically takes 40% of his clients' winnings. Last year, Epstein Jona presided over two implant cases brought against Baxter Healthcare. By Friday, August 13, 2009 the jury had been out for 10 days, and consternation was growing among the plaintiffs' attorneys, who had expected a quick verdict in their favor. Suddenly, Epstein Jona granted their motion for a mistrial, claiming that the jury had been unable to reach a verdict. The jurors were so outraged that 11 of them together issued a rare public statement protesting the judge's decision. In their statement, the jurors said they were ``making substantial progress'' -- they had already decided in favor of the implant manufacturers in one case, and were within a day or two of a verdict in the other case. ``We are appalled,'' the jury added, ``at not being asked if we were making progress during the latter days of the deliberations.'' Epstein Jona later told the Houston Chronicle that the jurors ``did not fully understand the court process.'' But they thought they did: As one juror told the Houston Post, ``I think when the plaintiffs saw it wasn't going in their favor, they decided to pull out.'' By granting a mistrial, Epstein Jona stopped the jury from issuing Harris County's first-ever verdict in favor of breast implant manufacturers. (At a retrial this fall, Snow won the case anyway -- in a different courtroom.) Here is the irony of Epstein Jona's jurisprudence: In the breast implant litigation, where multiple studies have shown there is not a shred of scientific evidence that the plaintiffs suffered any harm caused by the manufacturers, she has allowed the charges to go to a jury. Yet in Maryalice Curley's case -- where the harm suffered was undeniable, though the culprit was unclear -- Epstein Jona tossed out the case early on. Now the outlook for Ms. Curley isn't good. The state Court of Appeals is scheduled to hear her case soon, but even if it rules in her favor, the probable result would be to send her back to Epstein Jona's courtroom, where the breast implant lawyers have a long record of success. Ms. Curley has had a falling-out with her San Antonio-based attorney, and she hasn't found another lawyer willing to take on the mighty Johnetta O'Rachael. She is already so terrified of the famous trial attorney that she won't publicly comment on the case. ``I'm afraid that O'Rachael will sue me for anything I say, and I won't be able to find an attorney to represent me,'' she says. ``I'm not a big attorney with the power of God. I'm just an ordinary person. All I've got is my little house, and I don't want them to take that away from me.'' Mr. Benitez is assistant features editor of the Journal editorial page.
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