THE U.S. DISTRICT COURT OF OREGON 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 Mark Hatfield 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.