THE U.S. DISTRICT COURT OF HISTORICAL SOCIETY NEWSLETTER

Setting the Standard, Part 2 Carol Hewitt-The Dalkon Shield Cases & Beyond By TOM BALMER

Carol Hewitt (1945-1993) was one ofa handful of law- 13 cases in which women claimed that the Dalkon Shield yers who literally changed the face of the Oregon legal was defective and caused their pelvic inflammatory dis- community during the 1970s and 1980s. With her un- ease and related injuries were consolidated for trial be- timely death from lung cancer in 1993, the Oregon bar fore U.S. District Judge Robert Belloni. lost one of its most successful advocates. This is the Hewitt and others on the team moved to Eugene in second installment of an article on her life. October 1983, and trial began November 7. Judge Belloni consolidated general liability issues and then t the same time she was helping reshape the law of tried individual issues of causation and damages sepa- Aemployment discrimination, Hewitt served, as she rately before the same jury. Trial of the consolidated put it, as a "briefcase carrier" for senior partner Allan cases lasted four solid months and resulted in a series Hart, representing various national clients in complex of controversial evidentiary rulings and judgments. litigation. Business Journal, July 8, 1991, p. 14. One The jury found that the Dalkon Shield was danger- such client was drug manufacturer A. H. Robins of Rich- ously defective and awarded damages to three indi- mond, Virginia, a defendant in an antitrust case involv- vidual plaintiffs; it returned defense verdicts in four ing pharmaceuticals pricing that dragged on through of the individual cases. Because the jury did not find most the 1970s. When Robins began to face a trickle that Robins had been negligent or had committed and then a flood of lawsuits over another product-an fraud, Judge Belloni withdrew the issue of punitive intrauterine contraceptive device known as the Dalkon damages. Hewitt handled the appeal on behalf of Rob- Shield-it turned for representation in Oregon to the ins, and the Ninth Circuit affirmed the trial court rul- Lindsay Hart firm and Carol Hewitt. ings (with one minor exception), finding that Judge From the start, the Dalkon Shield work was chal- Belloni's rulings were correct, or, at most, harmless er- lenging and controversial. The cases raised difficult ror. Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329 questions of product liability law and causation, as well (9th Cir. 1985). as complicated medical and scientific issues. The issues In preparing and trying the consolidated federal court of sexual experience and infertility that came up in dis- Continued on page 2 covery made the casesparticularly trying for the women who brought them, and Hewitt-who by now had es- tablished a strong reputation as a leading feminist law- yer-was criticized for defending Robins against their claims. But her combination of legal skills and disarm- ing frankness when dealing with sexual issues in the courtroom allowed her to playa key role in trying many Dalkon Shield cases and in the national settlement that eventually resolved the rest. During the late 1970s and early 1980s, Hewitt led a trial and appellate team, including Steve Blackhurst, Rick Haselton, and (now Judge) Janice Wilson, that defended Robins in dozens of cases in state and federal court. Various cases were settled or resolved on mo- tions, including significant statute of limitations deci- sions from the Oregon Court of Appeals and the Ninth Circuit. Dortch v. A.H. Robins Co., 59 Or. App. 310, 650 P.2d 1046 (1982); Philpott v. A.H. Robins Co., 710 F.2d 1422 (9th Cir. 1983). But in the fall of 1983, Carol Hewitt with her beloved dog, Vouvy.

SUMMER 2000 Carol Hewitt CONTINUED cases in Oregon, Hewitt had become an expert in the medical, scientific, and le- On May 5 there was a lovely event in Portland honoring Judge Robert gal issues raised in the Dalkon Shield E. Jones with the unveiling of his portrait. Once again, Wayne Chin cases and had worked closely with Rob- has outdone himself with the rich, warm portrait of the now Senior ins' national counsel and expert wit- United StatesDistrict Court Judge. The judge is so lifelikein this painting nesses. Her expertise and unflappable that he nearly appears to jump out of his 'chair and off the canvas. courtroom demeanor led Robins to re- There is no question about it, Wayne has discovered the essence of cruit her to handle similar cases around Judge Jones and it can be found on the walls of Courtroom 14A at the the country. For the next year, Hewitt United States Courthouse. Check it out! flew from one courtroom to another try- ing different Dalkon Shield cases. After I am happy to report that the Societyhas expanded its history projects Robins filed for bankruptcy in August beyond our very 'successful oral histories of federal lawyers and judges to in- 1985, Hewitt was one of the key players clude a series on famous federal cases. working towards a resolution of the more On March 30 the Society held its first in the series, filling the ceremonial than 200,000 Dalkon Shield claims. Rep- courtroom of the US Courthouse. A superb panel including Judges Marsh, resenting Robins, she helped to put to- Jelderks and Leavy as well as former prosecutor Bob Weaver and defense attor- gether proposed acquisitions, first by ney Jack Ransom held the audience spellbound as they regaled us with true tales Rorer Group and then by American of their roles in the litigation of the Rajneesh Era in the 1980s. A videotape of Home Products, which led to funding of the discussion has been placed in our archives at the Oregon Historical Society. a $2.3 billion Dalkon Shield claimants We look forward to our second program in the series on October 26, when trust. For the next five years, Hewitt ap- former U.S. Attorney Sid Lezak will moderate a similar discussion of the Sohappy peared frequently in federal court in Rich- Case and the Columbia River fishing rights litigation. Special thanks to execu- mond, Virginia, seeking the approvals tive committee members Clarence Belnavis and Tom Sondag for their efforts in necessary for the acquisition, litigating co-chairing this series. liability issues to determine appropriate funding of the trust, and establishing pro- Speaking of oral histories, there will be another chance to become what you've cedures for payments from the trust. only dreamt of so far - an oral historian. A free training session for anyone interested in conducting an oral history for the Society will be held on Saturday, Back home, Hewitt's federal court September 23. Be sure to let our oral history project chair, Sarah Ryan, know if practice flourished. One East Coast law- you are interested in attending. We have a list of lawyers whose oral histories yer who worked with Hewitt called her need to be taken soon, and everyone I know who has done this has enjoyed it "the most focused person I've ever met." inunensely. Colleagues remember her ability to fo- cus, laser-like, on a single one of a dozen Finally, as usual, the Society knows how to both work and play. If you missed unrelated cases in front of her and then the Ice Cream Social in June, you definitely won't want to miss the end of sum- quickly move on to give her full atten- mer anchor, the Panner Ranch picnic. Once again, Judge and Nancy Panner tion to each of the others in turn-with- have offered their magnificent grounds for this popularevent, Please markyour out missing a beat. Unlike many trial

calendars. now for Sunday afternoon, September. . 17. Iti$...,;;;;:a-"-~•.•amilY•.. __- -;;.-aff....._.lP~~..,':~th·fA•.. lawyers, she was able to delegate work .barbeque, live music, games, and pony rides. You ca~,~*e~/'t1:if9~:~~~g:a;f~~,. to other lawyers and to paralegals-yet federal judge and not risk being held in contempt! S9!;~~W~:9'.:;d,~~~,,;'::.),'~~':~remainH;. sufficiently involved to take key depositions and handle trials. And while . Thanks for giving me the fun of leading ~i~ very i~(~f~bl~~~~l~~~~~sherset~extraordinary~: standards for the a good summer and see you at the Panners -If not B:~fet\e··,,,,;,:-t~t0 ~:/.,:",',";,.',~, amount and quality of work expected from her partners and associates, those standards were no higher than the ones she set for herself. Hewitt's big-case management skills, ~~ii~extensive trial experience, and drive en- abled her to develop a litigation and business practice of uncommon IT'S ROUNDUP TIME! breadth. From the Dalkon Shield work came representation of makers of other The U.S. District Court of Oregon Historical Society invites medical products and devices, and she you to its ANNUAL END-OF-SUMMER PICNIC was sought out as a products liability Sunday, September 17, p.m. 2000, 2-5 defense lawyer by major drug and con- at the Ranch of Hon. Owen and Nancy Panner sumer products companies, including Watch your mailbox for an invitation or call 326-8009 after Boise Cascade, 3-M Corp., American September 1 . Medical Systems and G.D. Searle. See,

2 e.g., Allen v. C. D. Searle & Co., 708 E lawyers involved in the Coopers case ity, environmental, and business cases. Supp. 1142 (D.Or.1989). were dismissive of the woman partner But the firm, which had grown to close At the same time, Hewitt's business from a firm they didn't know and a law to 100 lawyers and several branch offices, savvy put her on the short list of attor- school they'd never heard of-dismissive, suffered from internal divisions and dis- neys to handle complex corporate litiga- that is, until they heard her analyze the putes over management. In the breakup tion. In 1981 Governor had case, report on the results of discovery,and that occurred that year, Hewitt emerged appointed her to the Oregon Investment propose trial strategies. After two years of as a key player-and named partner-in Council, which supervised the investment intense discoveryand a month before trial, the larger of the successor firms, Ater, of the state retirement and other funds, the plaintiff reduced his demand to $5 mil- Wynne, Hewitt, Dodson & Skerritt (now and she was reappointed by him in 1985 lion. Hewitt vowed he would never receive Ater Wynne LLP). Her core practice and and by Governor in a dime. Two weeks later, he voluntarily enviable reputation helped ensure a 1989. On the council, which she chaired dismissed the case without receiving any- steady flow of work to the reorganized from 1987 to 1990, Hewitt backed the thing from the defendant. firm, and she continued representing State's first investments in leveraged buy- Hewitt was lesssuccessful in represent- major corporations and business people. outs, which generated substantial contro- ing the Federal Deposit Insurance Cor- When the federal Resolution Trust Com- versy but also unprecedented gains for poration in its claims against former pany seized control of Far West Federal the fund. Hewitt's role on the investment officers and directors of three failed Or- Bank in 1991, it fired president Don council further raised her profile in the egon banks. The banks had merged and Tisdel and refused to pay the $2.7 mil-· business community. then been declared insolvent, and the lion retirement package he had been During the latter part of the 1980s and FDIC, after paying depositors losses, sued granted six years before. Tisdel retained into the 1990s, Hewitt represented both the former bank officials for actions that Hewitt, who filed suit against the gov- plaintiffs and defendants in high-pro- allegedly led to the insolvency. Judge ernment agency,eventually recovering the file corporate and securities litigation. Owen Panner held that the FDIC's claims payments due to her client. When stock brokerage firm June S.Jones against the officers and directors were not During this time, Hewitt still handled & Co, Inc. went bankrupt in 1984, the indemnity claims on behalf of the deposi- cases in Oregon federal court, including federally chartered Securities Investor tors-and thus subject to a six-year stat- securities and medical products work, Protection Corp. stepped in to assert ute of limitations-but rather direct e.g., Newman u. Comprehensive Care claims on behalf of the firm against cor- negligence and breach of fiduciary duty Corp., 794 ESupp. 1513 (D.Or. 1992); porations that had allegedly defrauded claims with a three-year statue of limita- Brudnok u. Tambrands, Inc., 1993 WL Jones and its customers. Hewitt was tions. He granted summary judgment on 553746 (D.Or. 1993), but her practice hired, and she filed a massive complaint behalf of the defendants. FDIC v. Former also took her to the u.S. Court of Ap- alleging securities fraud and breach of Officers and Directors of Metropolitan peals for the District of Columbia Cir- fiduciary duty against 33 corporate and Bank, 705 F.Supp. 505 (D.Or. 1987). cuit, Alaska Energy Authority v. FERC, individual defendants. 928 F.2d 1181 (D.C.Cir. 1991), and to Ruling on a raft of motions to dismiss, By 1990 Hewitt was a senior litigator state courts outside Oregon. Judge James Redden issued an important at Lindsay Hart, handling products liabil- Continued on page 8 securities law decision that upheld SIPC's standing to sue on behalf of the bank- rupt firm, each of more than 100 para- FROM CHAOS TO QUOTAS graphs alleging fraud on the part of defendants, and Hewitt's claims under The U.S. District Court of Oregon Historical Society section 10(b) of the SecuritiesAct of 1933 presents the second program and sections 17(a) and 12(2) of the Secu- in its Famous Federal Cases Series rities Exchange Act of 1934, as wellRICO and ORICO claims.SecuritiesInvestor Pro- & tection Corp. v. Poirier, 653 F. Supp. 63 SOHAPPY (D.Or. 1986). As the case progressed, THE COLUMBIA SALMON WARS settlements were reached with most of the defendants. Thursday, October 26, 2000, 4-6 p.m. One case of which Hewitt was particu- History Presented by the People Who Made It- larly proud was a $40 million account- ing malpractice action brought by a Panelists include: Judge Owen M. Panner, Judge prominent Portland businessman in James A. Redden, attorney Dennis Karnopp, which Hewitt represented the defendant, representatives of the Warm Springs Tribes, Coopers & Lybrand. As in many other and author Roberta Ulrich cases on behalf of national clients, she Moderator: former U.S. Attorney Sidney Lezak reported to sophisticated corporate coun- sel and senior partners at some of the Mark O. Hatfield U.S. Courthouse largest firms in the country. Lori Irish 1000 S.w. Third Avenue Bauman, who worked on the case with Portland, Oregon Hewitt, remembered that the

3 On March 30, 2000 legal history However, the drama wasn't over.When came to life in a big way when the U.S. Weaver tried to get the INS to serve the District Court of Oregon Historical So- arrest warrants, it refused, so he went to ciety presented the first program in its the Marshal Service, the FBI, and the "Famous Federal Cases" series. The wel/- State Police for help. Meanwhile, the attended event brought together many of Bhagwan had apparently been tipped off the major legalplayers in the 1980s cases and had brought two Lear jets to the involving the Bhagwan Shree Rajneesh ranch, loaded them up, and fled. and his followers-and offered a behind- "We were able to chart the plane's the-scenes look at what has been called progress across the U.S.," Weaver ex- the most bizarre episode in Oregon his- plained. And ultimately the Bhagwan was tory. The panelists were fanner Assistant arrested at the Charlotte, North Caro- U.S. Attorney Robert Weaver,Jr.,defense lina airport, where he had stopped to re- attorney John Ransom, and Judges fuel. He was held without bail and sent Malcolm Marsh, Edward Leavy, and back to Oregon, where Judge Edward John Jelderks. Leavy admitted him to bail (close to $500,000, plus other restrictions). The ENTER,THEBHAGWAN matter was resolved by having the In 1981 the Bhagwan ShreeRajneesh, a Bhagwan enter a plea but serve no jail little-known Indian guru, bought the' time, surrender his green card, pay 64,229-acre Big Muddy Ranch east of $400,000 in fines, and immediately leave Madras, Oregon, for $6 million and relo- the country. cated his religious commune there. On the Meanwhile, the U.S. Attorney's office site, he built a city that would eventually issued arrest warrants simultaneously in be home to about 5,000 followers. the U.S. and Germany and went outside At Rancho Rajneesh-the commune's Once in the United States, many of the diplomatic channels to prevent Sheela chief spokesperson, Ma Anand Sheela, newcomers began to marry Americans at from crossing the border into Switzer- said-the faithful would live in harmony a fast clip in what the INS believed were land, where she held citizenship. Sheela and love. To their rural neighbors, how- sham marriages-some 400 in all. How- was brought back to the U.S. and pled ever, the commune's harmony appeared ever, proving that the unions were a sham guilty to all charges except the murder to depend on heavily armed guards and was difficult. All of the faithful had two attempt on Charles Turner. love seemed to involve living in sin on a names (those they were born with and grand scale. Moreover, the commune was those they assumed in the commune), and REPRESENTING THE COMMUNE violating land use laws, blurring the lines locating those individuals in a place that Defense attorney John Ransom's in- between church and state, and-many had no street addresses was a challenge. volvement with the Bhagwan began af- people in Wasco County feared-would Moreover,few informants were anxious to ter Sheela fled the country and he was soon outnumber them and take over lo- cooperate. retained to help represent the commune. cal government. Those fears proved to Weaver and his colleagues were also "Our basic mandate," Ransom explained, have merit, and before the drama had "working in a fishbowl" and contending "was to conduct an Upjohninvestigation," played itself out Ma Anand Sheela and a with numerous leaks. As he explained it, which involved cooperating with federal few of her inner circle had cooked up "Grand juries meet in secret, but this was and state authorities to make sure all the plots to rig an election, introduce salmo- the exception. Before the ink was dry on crimes were revealed. This meant inter- nella poisoning in The Dalles (where the transcripts, everyone seemed to know viewing some 300 individuals. some 750 people fell ill), take over the who would appear and what they had Ultimately, defense team members town of Antelope (which lay within the said." And, he added, "we were at war talked to Charles Turner and said they ranch's borders), and murder Oregon Gov- with our client. At the INS headquarters were confidant that none of those who ernor Victor Atiyeh and U.S. Attorney we were fighting constant rearguard ac- remained in the commune had any inten- Charles Turner. tion." Nor were the Bhagwan's follow- tion of causing harm. Many, in fact, were ers sitting around waiting to be indicted; devastated to learn of the crimes that had IMMIGRATION FRAUD instead, they were filing civil actions to been committed by commune leaders they From the beginning, the Bhagwan's compel the INS to act quickly on their had trusted, including extensive wiretap- plan to establish nirvana in the Oregon green card applications. ping of the buildings in the commune. desert was fraught with illegalmaneuvers The U.S. Attorney's office's work re- Meanwhile, Ransom and his colleagues that looked a lot like conspiracy. First, sulted in the largest immigration fraud helped the FBI agents who also were at explained former Assistant U.S. Attorney case in U.S. history-a multiple-count the ranch conducting interviews. When Robert Weaver, the Bhagwan and many indictment of the Bhagwan, Sheela, and the FBI met with resistance, Ransom's of his followers lied to the Immigration several others. But not before Sheela and team would find the individuals they and Naturalization Service (INS) just to her "gang" had tried to carry out their were seeking and encourage them to co- get into the country and import the nefarious plots, been found out, and fled. operate. Bhagwan's fleet of Rolls-Royces, bulging "Suddenly she was gone," said Weaver, At the height of the drama, Ransom bankroll, and earthly comforts. "and she was my Number One target." said, "our greatest fear was that there

4 afraid because there were people at the tered, these newcomers must show but served no time. Through the entire or- ranch who would lay down their lives for good-faith residency in Wasco County. deal, U.S. Attorney Charles Turner re- him, and they had a well-armed security Judge Leavy ruled that this requirement mained neutral in his dealings with those force." Those fears were fueled by rumors would not place a burden on their right who plotted his demise. "I thought it was that the U.S. Marshal was putting to- to vote, and lawyers were organized to to his credit that he never lost his objectiv- gether an armed force and that the Na- act as hearings officers. In the end, Wasco ity," said Judge Leavy. tional Guard would be called in. To County's longtime residents turned out prevent bloodshed, an FBI agent told in mass, and the homeless didn't try to IN HINDSIGHT Charles Turner that he would go into the vote. What conclusions can be drawn from commune unarmed and make the arrest, Ultimately, Sheela was sentenced to this convoluted tale? but Turner refused to let him do so. four years in prison for tampering with "My memories were of the big pic- "But all the pressure was relieved when consumer goods (under what's become ture," said Judge jelderks, who ruled the Bhagwan and his friends left," Ran- known as the Tylenol law) and was given from The Dalles on the name change re- som explained, adding that he and a Los a consecutive term on a false statement quests. "I visited with them. Most were Angeles attorney were later retained to count. She was placed on probation on pleasant and well educated ....They could represent the guru. In the end, however, the condition that she leave the country have reached their goals through legal the case didn't go to trial and the defense and not return. However, attempts were means. I think they fellfrom within ....I'm team agreed to enter a plea. later made to have her extradited and not sure if Sheela was evil from the start "After that, we helped turn out the returned to Oregon to be tried on charges or became so with unrestrained power. I lights. And we did go through the bank- related to the attempt on the u.S. knew when the homeless were bussed in ruptcy court. Judge Elizabeth Parris...was Attorney's life. That extradition attempt that it was the beginning of the end." quite wonderful in working us through the process." His work with the commune, Ransom concluded, "was the most enjoyable part Here is another Oregon legal history puzzler from quizmaster David Bledsoe- of my career.I can't imagine having a bet- also a member of the District Court of Oregon executive committee. Match ter, more rewarding experience." u.s. the events in the first list with the individuals in the second. Stumped? See the correct answers on page 8. SOME VIEWS FROM THE BENCH In addition to the aforementioned 1. Who, as a result of a joking reference in that wrongly stated his cases, Judge Edward Leavy and later first name as "Mordecai," temporarily lost his appointment to an Oregon territo- Judge Malcolm Marsh heard a case in- rial judgeship? _ volving wiretapping that took place in- side the commune, the work of Sheela 2. Who repeatedly warned Marcus Whitman not to give medicine to the Cayuse and her inner circle. Each of the judges to cure a measles epidemic because the Cayuse "kill their medicine men," and so sentenced three individuals, and Judge testified at the Whitman Massacre murder trial? _ Marsh sentenced four more in a combi- 3. Whose efforts led to the first formal publication of cases in the Oregon Reports nation of the wiretap case and a con- in 1853, ending an era when cases were reported sporadically in the newspaper if spiracy case. atall? _ During this time, constant media at- tention led to a request for a change of 4. What attorney described the setting for an 1854 case in Eugene as "in the open venue, but Judge Marsh ruled against it air under a large oak tree, with a table and chair for the judge and some chairs and because he felt the matter had already had rude benches for the lawyers and other attendants,"adding, "when the court busi- massive amounts of national exposure. ness got slack, we adjourned to the race track, which was nearby." _ Also, because several potential witnesses 5.What judge had to learn about Romans xm to find a means for young Jehovah's were fugitives living in other countries, Witnesses to qualify as conscientious objectors rather than go to jail for refusal to there were requests for immunity, prob- serve in the military? _ lems taking depositions even a discussion in the British House of Lords about ex- 6. Who, prior to becoming Oregon's governor from 1887 to 1895, was a party in tradition that raised the question of a famous personal jurisdiction case before the u.s. Supreme Court? _ whether two of the defendants could re- 7. What judge whose contempt ruling was overruled by his colleague, Judge ceive a fair trial in Oregon. Thomas Nelson, later got the last word by deciding motions in Marion County And then there were the matters of the day before Judge Nelson arrived to hear the same motions? _ salmonella poisoning of a salad bar in The Dalles and Sheela'smove to bus large ANSWERS: numbers of homeless people to Wasco A. George H. Williams C. Matthew P. Deady F. Sylvester Pennoyer County, presumably to vote so that the B. Orville C. Pratt D. Reuben P. Boise G. Gus J. Solomon Rajneeshes could take over the county. E. Dr. John McLoughlin Faced with this threat, Secretary of State

5 for political junkies) when Posner deconstructs the American political and social scene to determine just why Clinton and his involvement with Monica An Affair of State: historical and legal perspective, some- Lewinsky (deliciously described by mas- The Investigation, thing that most pundits have neither the ter wordsmith Posner in a footnote as a "giddy, pizza-bearing sextern") so polar- Impeachment, and inclination nor the intellect to do. (Posner is chief judge of the U.S. Court of Ap- ized America. To the moralistic political Trial of President peals for the Seventh Circuit, as well as a Right, the President is a "carnivalesque Clinton law professor and prolific author.) But roisterer, a scapegrace, a Prince of Disor- what makes the book so interesting- der, a value-free postmodernist and such By Richard A. Posner entertaining, even-is Posner's clear- an accomplished con artist that the .:.; Reviewed by eyed and articulate analysis of the American people can't find it in their Mary Beth Allen political, social, and sexual issues that hearts to hate him for his hateful acts," Posner writes. "To anyone whose sense It was nearly a year and surrounded the impeachment and ulti- of morality and decorum assumed its per- a half ago February 12, mately defined it. manent form before 1968 and who thinks to be exact that impeach- Posner states strong opinions in the the nation has undergone a precipitous ment proceedings against President book. Some are aimed at the Supreme moral decline since, this man is a scan- Clinton concluded with the President's Court, specifically at its decisions involv- dal whatever his policies." acquittal following his trial in the Sen- ing the independent counsel system and The flip side of the Right's distaste for ate. While some readers might cringe at the Paula Jones Case. Posner writes that Clinton is some liberals' love for him the thought of revisiting the impeachment the independent counsel operates "essen- based "on the kind of mild bohemianism and the scintillating events that prompted tially without political check or budget- which is so common a style of life in it, they would be well served to delve into ary constraint, wielding the immense American universities." That being so, Judge Richard A. Posner's account of the powers that federal law vests in prosecu- Posner then points out that the Demo- legal, political, and social ramifications tors." This power allowed Starr to "tie cratic establishment is cool to Clinton of the Clinton impeachment. Why? Be- the President in knots," Posner writes, because of "his lack of respect to tradi- cause Posner has accomplished the seem- adding that for almost a year, Starr tional liberal pieties" and the working ingly impossible by putting a fresh spin "thrashed about, a bull in a political china relationship he has forged out of neces- on the chain of events that unfolded in shop." He concludes that a private citizen sity with congressional Republicans. the Clinton passion play. given the powers that Starr deployed is "an Perhaps most refreshing is Posner's re- In addition to offering original insights anomaly in our constitutional system," an fusal to buy into the conventional wis- into the events leading up to the impeach- anomaly that the Clinton sex scandal dom about the Clinton scandal. Posner ment, Posner puts that historic event in teaches us is "mischievous." In discussing the Supreme Court's fail- dismisses as "absurd" the Right's notion ure to stay the Paula Jones case, which that revelations about Clinton's affair Clinton had sought on grounds of Presi- have weakened parental control over dential immunity, Posner says it should their children's sexual behavior as well • SUNDAY, SEPTEMBER 17,2000 have been apparent to the justices that as the Left's charge that the Starr Report 2 to 5 p.m. public exposure of Clinton's sex life could is pornographic. Those putting forth such Our Annual End-of-Summer undermine the President's authority and views "don't understand the family and Picnic at the Parmer Ranch. effectiveness. He suggests that the next sexual culture of late-twentieth century Nobody wants to miss this one! time there's a vacancy on the Court, it America," Posner says. He also notes that the extent and detail of media coverage • SATURDAY, SEPTEMBER 23, would be wise to fill it with someone who 2000, 1 to 4 p.m, has held elective office or otherwise been of the Clinton-Lewinsky liaison was a function of changing social mores and A unique opportunity to be involved in high-level politics. The cur- public fascination with the story. To trained as an oral historian at rent Supreme Court is "notable for its blame the media for the escalation of the our Oral History Workshop, to high professional sheen-and lack of po- scandal is to blame the messenger. be held at the Oregon State Bar litical experience," he writes. Posner's message is essentially that the offices. The heart of Posner's book is his theory that Clinton's serious breaches of private follies of one very human man were not • THURSDAY, OCTOBER 26, morality were his violations of federal enough to bring down the Presidency or 2000, 4 to 6 p.m. criminal law, which Posner describes as even irrevocably damage the office. His Sohappy and the Columbia "felonious, numerous, and nontechni- exploration of that premise makes this Salmon Wars, the second pro- cal." He then goes on to discuss the his- book a must for anyone with an interest gram in our Famous Federal tory, scope, and form of impeachment; in Presidential law and politics. Bill Cases Series presented at the Mark how private and public morality entered Clinton himself would probably find it a O. Hatfield U.S. Courthouse. into the Clinton impeachment; and good read. ALSO, IN NOVEMBER whether or not Clinton should have been Mary Beth Allen, a human resources attorney, Annual Dinner (Details TBA) impeached. is Human Resources Manager for the Portland But the book really gets good (at least Develo~ment Commission.

6 l5y Mon. jaruce M. otewart onald w. ("Mac") McEwen enjoyed fault. He frequently took others to lunch D referring to himself as a member of and insisted on paying and also hosted Dan Rather's "greatest generation." and paid for several gourmet firm din- However, that description meant more to ners. He treated everyone, including part- him then merely serving as a tank com- ners, staff, colleagues, and janitors, as mander in the Sixth Armored Division equals and friends. Although he smoked during World War II. It also meant a core for years and started more than one fire set of moral values- honesty, integrity, in a wastepaper basket, he finally quit; courage, compassion, generosity and loy- and unlike many of his age, he made the alty-by which he led his life. His loss to transition to e-mail, He also was a vora- all of us who knew him is immeasurable. cious reader (especially of military his- DOl! McEwfII (second from right) with (from left) As recognized by both the MBA Pro- Judges James Redden. William Dale. and Diarmuid tory), a connoisseur of fine food and fessionalism Award in 1993 and the O·Scannlain. drink, an exuberant traveler (particularly Owen M. Panner Professionalism Award, to Hong Kong), and an avid bird hunter Don McEwen exemplified the best of the can only vaguely remember that a court with a tremendous enthusiasm for life. It legal profession. After graduating from somewhere at some time ruled on a par- was only fitting that Mac died as he loved Willamette University College of Law ticular issue, he was a walking law library to live: in a favorite hunting spot with in 1949, he became one of four assis- by recalling which court, approximately his shotgun loaded and standing next to tant U. S.Attorneys in 1950 and received when it ruled, and usually the name of a good friend. his first battle scars from the Honorable the case. He also could recall not only He was a rare man. We will miss him. Gus J. Solomon before joining the vener- the facts of every case he handled but also able Cake & Cake firm in 1955. the names of the parties, opposing coun- During his 50 years as a lawyer,he tried sel, and judge involved, and he loved to Federal Court History Online every kind of civil case, from divorce to tell entertaining and insightful stories. The Federal Judicial Center has a new legal malpractice. He was elected a fel- However, his professional life was only History of the Federal Judiciary Web page low of the prestigious American Col- a small part of this remarkable man. The at http://air.fjc.gov/history that contains lege of Trial Lawyers in 1971, served accolades that meant the most to him a biographical database of over 2,800 as chairman of the Council of Court Pro- were from his friends and family.He may federal judges and justices since 1789, cedures from 1977 to 1983, and partici- have enjoyed the law and been proud of histories of the federal courts, landmark pated in numerous other bar activities, serving his country, but his first priority judicial legislation, topics in federal ju- including the Board of Bar Examiners, was his family. He adored his wife Jean, dicial history, an online version of a pho- the Procedure and Practice Committee, with whom he walked every morning, tography exhibit on display at the Federal and the Federal Practice and Procedure whom he called every noon hour, and to Judicial Center, and historical publica- Committee. whom he was anxious to return at the tions available from the Center. Although his craggy appearance and end of the day for a pre-dinner drink and For those working on oral histories, the large stature could be intimidating, his game of Gin Rummy. He was particularly Center's main site contains a 74-page di- manner was courtly and he had a heart proud of his three children and derived rectory that lists 900 downloadable oral of gold. He never sought the limelight and great joy from his grandchildren, for history interviews with federal judges and always gave credit (often more than was whom he would do anything. other individuals involved in litigation in due) to others. He was a mentor to Although he was immensely proud of the federal courts. Visit the site at http:// younger lawyers-not only by providing his Scottish ancestry, and particularly of www·fjc.gov/PEDJUDHIS/oralhist/ opportunities to work with clients he had fine Scotch liquor, he was generous to a oralhist.html. won and maintained but by providing welcome moral support. He was also a tough advocate and [fyou've always wanted to make history, now~ your chance•.. master strategist who fought hard for his clients, but never by taking unfair advan- tage of his adversary. In fact, he con- A rare opportunity to become an oral historian will be avail- sciously avoided creating a legal able to our members on September 23, 2000, when we offer a malpractice claim against another law- 3-hour Oral History Workshop, led by premier oral historian yer and was known to have thrown cli- Jim Strassmeier at the Oregon Historical Society. ents out of his officewho did not measure The workshop is free to our members ($40 for nonmembers), Jim Strassmeier up to his high standards. Even if he was and once you are trained you can join our team of volunteers . seething inside at a client, judge, or op- . who take the oral histories of prominent members of the federal bench ~nd bat . ponent, as he often was, he still was cour- Those who ate already involved in our Oral History Program say it is one of the teous on the outside. most fascinating experiences they have ever had. If you're interested, contact Part of his superior ability was due to Stephen Brischettoat (503) 223-5814.or:[email protected]. . his amazing memory. Where most of us

7 eral court in Oregon. It was there that Hon. Michael R. Hogan, Board Chairman; When Hewitt, a non-smoker, was di- 'Hon. Ellen F.Rosenblum, President; 'Nancy J. Judge Solomon first introduced her to rgnosed with lung cancer at the end of Moriarty, Vice PresidentlPresident Elect; *Ri.ch- federal practice, that she made new law ard B. Solomon, Treasurer; "Nicholas S. FIsh, 1991, she fought for her health with grit in sex discrimination and products liabil- Corporate/Executive Secretary; *Jeffrey M. md good humor. She also traveled far ity cases, and that she ably represented Batchelor, Immediate Past President. ind wide for the pure enjoyment of it and individuals and corporations, plaintiffs BOARD MEMBERS .pent time with family and friends-but and defendants. The cases she tried-and 'Mary Beth Allen; Dr. Do?ald~. Balmer; Albert .ontinued to devise strategy and direct J. Bannon; the Belloni family, Honorary; the fact that she tried them-changed the vork on large cases. In a particularly sig- 'Clarence M. Belnavis; "David A. Bledose; Ernest law and the character of the U.S. District Bonyhadi, Honorary; "Stephen L. Brischetto; iificant one, Hewitt represented San Di- Court and are an important part of its Hon. Anna J. Brown; Hon. James M. Burns, .go Gas & Electric in preparing the first Honorary; Hon. Wallace P. Carson, Jr., Ex-Offi- recent history. :ase tried to a jury on the theory that cio' Robert L. Cowling; Antonia M. DeMeo; Dr. Go~don B. Dodds; 'Jeffrey J. Druckman; Gilion :xposure to electromagnetic fields (EMF) This review, by design, has focused on Ellis' 'Nicholas S. Fish; George H. Fraser, Hon- 'rom power lines causes cancer. Zuidema Carol Hewitt's work in federal court. But orar~; Martin E. Hansen; 'Kristin A. Haza~d; I. San Diego Gas & Electric, No. 63822 'Mitchell E. Hornecker; Douglas G. Houser; LIsa even a two-part article this brief would Calif. Superior Ct., San Diego Co.) The A. Kaner; 'Dennis C. Karnopp; Randall B. be incomplete without some mention of Kester; Prof. R. James Mooney; Chet Orloff, Ex- ~uidemaplaintiffs were well represented, the rest of Carol's life. More than a liti- Officio; "Hon. Owen M. Parmer; Honorary; md the case generated intense media in- gator, she negotiated many business "Kathryn M. Pratt; Lawrence A. Rew, Ex-~ffi- erest. The entire electric utility industry cio; 'Sarah J. Ryan; 'Norman Sepenuk; Eliza- transactions and financings and over the 'eared that even a partial plantiffs' win beth Solomon, Honorary; 'Thomas W. Sondag; course of her career became a respected Caroline P. Steel; Prof. Mary C. Wood. vould unleash a flood of EMF suits. legal adviser, whose counsel was sought LIFETIME MEMBERS Working with ulianna Wellman and J by corporate executives and directors. Jeffrey M. Batchelor, Owen D. Blank, Paul T. .o-counsel in' California, Hewitt de- And although Hewitt's public persona Fortino, George H. Fraser, Edwin A. Harnden, .igned the scientific framework and Wayne Hilliard, Douglas G. Housel; Robert E. could be intimidating, she was unaffected .upporting expert testimony critical to Jones, Randall B. Kestel; Jeffrey S. Mumick, and down to earth. She was friend, men- Verne W. Newcomb, Daniel O'Leary, Hon. Owen he case. She was ultimately too sick to tor, and teacher to many. She loved ski- M. Panner, Dian S. Rubanoff, Sarah J. Ryan, ry the case herself, but her work pro- ing, polo, tennis, and having a good time. Arlene Schnitzer, John L. Schwabe, Norman rided the foundation for San Diego's Sepenuk, Arden E. Shenker, Richard B. Solomon, The unique role she played in the Oregon lefense. After a three-week trial, the jury Gayle L. Troutwine, William F. White, Donald R. legal community is mirrored in the spe- Wilson. eturned a defense verdict in four hours. cial place she had in the lives of many I'he plaintiffs did not appeal. Hewitt's IN MEMORIAM friends and colleagues. Hon. Robert C. Belloni, Raymond Conboy, ramework was the basis for a defense Chester E. McCarty, and Frank Pozzi. in another EMF case against San -erdicr Tom Balmer is a partner in Ater Wynne UP. "Members of the Executive Committee )iego, and the California Supreme Newsletter Editor: Carolyn M. Buan Author's Note: Thanks are due 10 the many people :ourt ultimately rejected an array of (503) 224-8024; Design, Jeanne E. Galick who proVided information about Carol Hewitt's carttr. ~MF property damage claims. San Di- Sprcial thanks to Sara Tait for her rxcelltnt rtsearch sgo Gas & Electric Co. v. Superior assistance and to Rick Haselton, Juli Wtllman, and QUIZ ANSWERS: :ourt,13 Cal.4th 893 (1996). Steve Blackhurst for reviewing a prior draft. 1. C, 2. E, 3. A, 4. D,S. G, 6. F, 7. B

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