MINUTES OF THE meeting
of the
ASSEMBLY Select Committee on Health and Legal Issues
Seventy-First Session
April 26, 2001
The Select Committee on Health and Legal Issues was called to order at 3:30 p.m., on Thursday, April 26, 2001. Chairman Ellen Koivisto presided in Room 3161 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mrs. Ellen Koivisto, Chairman
Ms. Merle Berman
Mr. John Carpenter
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
GUEST LEGISLATORS PRESENT:
Senator Dina Titus
STAFF MEMBERS PRESENT:
William Keane, Legal Analyst
Marla McDade Williams, Committee Policy Analyst
Darlene Rubin, Committee Secretary
OTHERS PRESENT:
Joyce Simmons, Silicone Recipient
D. Lee Randolph, Silicone Recipient
Glenda Wilson, Silicone Recipient
Caroline Bromm, Silicone Recipient
Gaylene Ausem, Silicone Recipient
Judy Lieb, Silicone Recipient
Geoffrey White, Attorney at Law
Dr. Mary Stewart, Professor, University of Nevada, Reno
Roy Cannon, Attorney at Law
From Las Vegas:
Richard Butcher, Spokesman for Silicone Recipient
Charlotte Mahlum Daneke, Silicone Recipient
Bonnie James, Silicone Recipient
Laurie Gilmore, Silicone Recipient
Patty Fawcett, Silicone Recipient
Colleen Michael, Silicone Recipient
Diep Woodward, Silicone Recipient
Darcy Adamour, Silicone Recipient
Note: Simultaneous videoconference was held in the Legislative Counsel Bureau, Room 4412 of the Grant Sawyer Office Building, 555 East Washington Avenue, Las Vegas.
Chairman Koivisto introduced the committee members and welcomed the individuals appearing via videoconference from Las Vegas.
The Chairman expressed the hope the committee would be able to do something to help in the situation before them. She then asked those who had come to testify to choose a spokesperson, because of the limited time available for the meeting it would not be possible to hear everyone.
Mrs. Koivisto distributed to the committee members an historical background (Exhibit C), a timeline outline of significant periods in silicone history and usage. She noted the presence of attorney Geoffrey White who had represented several women in the lawsuit against Dow Chemical, and invited him to share information on what he thought might be able to be done regarding the silicone- induced illnesses under discussion.
Geoffrey White, an attorney with the law firm of White and Meany, in Reno, informed his firm had been representing the victims of silicone gel breast implants for the last eight years in the state of Nevada. He noted other attorneys, including Don Springmeyer, and Will Kemp, in Las Vegas, had also represented a number of women.
Mr. White represented Charlotte Mahlum against the Dow Chemical Company, the owner of the “child” corporation, which was the Dow Corning Corporation, for defective silicone gel breast implants. It was tried in October 1995. The jury returned a unanimous verdict in favor of Charlotte Mahlum, because she developed autoimmune disease and severe sickness, scarring, and disfigurement. The Nevada Supreme Court affirmed the compensatory portion of that verdict, $4.2 million. The decision came out December 31, 1999. Charlotte Mahlum was fortunate, he added, to get justice from Dow.
On the issue of causation, i.e., do silicone breast implants cause disease in certain susceptible women; there was no dissent from the Nevada Supreme Court on that issue. At least in the state of Nevada there was no dispute that silicone gel caused disease. That issue was separate and apart from the scarring and disfigurement that resulted when the silicone implants ruptured and spilled the gel down a woman’s chest.
Mr. White represented a number of other women who had similar cases against other manufacturers. With regard to the silicone injection cases, there was a group of women who were injected in the early 1960s by Dow Corning-Dow Chemical-identified 360 Gel. There had been testimony in the Mahlum trial about tracing that substance and in almost every case the 360 Dow Chemical Liquid Grade Silicone Gel was identified as the culprit. Mr. White noted he and Will Kemp, mentioned above, were good friends; however, he disagreed with Mr. Kemp who believed there might be a product identification problem in many cases. Mr. White did not anticipate a great product identification problem.
However, Mr. White continued, the Nevada Legislature in the 1960s had been so incensed by the fact that women were getting injected directly into the breast area with silicone gel that they made it a felony for a plastic surgeon to inject liquid silicone into any woman’s breasts. That was the state of the science in the 1960s. That law was still on the books. That was important because when a silicone breast implant ruptured in the body it was no different than a silicone injection; when the implant ruptured, the gel leaked out and dripped into the woman’s chest wall. The reason for silicone breast implants in the first place, he said, was to circumvent the Food and Drug Administration (FDA), who in 1964 determined that silicone injections would also be against federal laws. Unfortunately, for many women who had silicone injection cases, there was such a massive amount of litigation as a result of the catastrophe engendered by the breast implants, that attorneys throughout the United States were not able to take on the caseload and represent women who had the identifiable-Dow-Corning implants, and also spread the resources of the law firms thin and take on the injection cases as well. The only attorney on the West Coast who handled a number of the injection cases was Claudia Brisson.
As a result of that situation, as well as women being ignorant of their true damages, their lawsuits were not filed; they simply fell by the wayside. That was a problem now because the “walking wounded” with silicone injections in Las Vegas and Reno had tremendous physical scarring, deformity, and disfigurement, and also the disease claims which resulted from silicone gel. In those cases, the women had not received any large settlement from the breast implant manufacturers. Dow-Corning Corporation, one of the makers of the 360 Gel, had not put $4.2 billion on the table because they thought they had not done anything wrong; they were paying the women because they knew they wrecked their lives.
The women who had the silicone injections were not going to be able to get the compensation because, explained Mr. White, if he was the defense attorney, he would argue the women had blown the statute of limitations. Suit should have been brought back in 1966 or 1968, or 1970, when they first heard of it. The women would say it had not been a big controversy back then, or they were embarrassed or ashamed to go to a lawyer or doctor to do anything. A defense attorney would say “tough luck.” Then the state of Nevada would be affected in the sense that many of the women were on disability; therefore, the state would be paying their medical claims. However, if the manufacturer paid the claims as they were doing with most other breast implant claimants, the state would not be affected. As a matter of statistics, Mr. White said there were 50,000 silicone victims in the United States.
Mr. White made a point that identification was an obstacle that could be overcome. The issue of whether the women had subsequent silicone implants on top of injections was a red herring, because attorneys would not take cases if women were “coming out of the woodwork” to sue; instead it would be a small and manageable group, or if they had identification problems or subsequent implant problems. For example, a woman who had a subsequent implant from Dow Corning, McGhan, or 3M, might not get a large settlement but she would get damages. Attorney Will Kemp had said his law firm was not going to take any of those cases. Mr. White respected Mr. Kemp’s opinion, however, the law firm of White and Meany, in Reno, would take those cases and attempt to help those women if they had a viable case with the ability to identify their manufacturer.
One other tragedy particularly impacted women in Nevada who had Dow-Corning implants; Dow-Corning Corporation filed bankruptcy in May 1995. Mr. White explained large corporations did that sometimes to avoid responsibility for their actions. It had been six years since Dow filed bankruptcy, and Dow-Corning had not paid a single cent to anyone in the United States, whereas Dow’s net worth had risen from $4 billion to $6 billion while they were under the protective umbrella of bankruptcy. The opportunity for women with silicone injection cases was that Dow Chemical was “up to its ears in alligators” with respect to the injections. Dow worked on the gel, had tested it, had said it was safe. They had tested it as a defoliant; something that would destroy the immune system on one hand and then sold it to put into women’s breasts on the other hand. When that came out at the trial, the Nevada jury had been incensed about that conduct.
Mr. White emphasized that Dow Chemical was not in bankruptcy; therefore there was an opportunity for women with silicone gel cases against Dow Chemical Corporation to pursue them. There was a glitch that Dow Chemical was trying to ride “piggy-back” on the Dow-Corning bankruptcy, but Dow Chemical was a $25 billion corporation and was not bankrupt. Mr. White had been fighting the issue for seven years and had been successful in the East in allowing the Nevada women that he represented and others in Las Vegas to have the same opportunity to be able to pursue Dow Chemical. The long wait, felt Mr. White, was a separate crime in and of itself, because all the women had not received anything for their scarring and disfigurement.
Chairman Koivisto reported she had discovered all the companies bought their gel from Dow, except McGhan. Mr. White confirmed that, and stated McGhan had bought its gel from General Electric Corporation, who manufactured the gel briefly early on.
Assemblyman Nolan asked if the injections, according to the timeline (Exhibit C) started in the 1960s, then came the breast implants. Mr. White confirmed that. Mr. Nolan then asked about the “Global 1” and “Global 2” lawsuits: what did those represent and who was included in them; was there opportunity for women to bring suit aside from those global lawsuits; and also, how was it that the women who were injected were precluded from filing any type of civil action against Dow Chemical.
Mr. White responded the reason so many women were precluded from filing civil actions against Dow Chemical was that the medical information concerning silicone gel breast implants causing disease in addition to disfigurement had not come out from the FDA until 1989 to 1990. Two years later the FDA banned silicone breast implants. Despite repeated attempts from the manufacturer to have that ban lifted, it was still in effect. Further, as a practical matter, there was a mass of litigation going on with breast implants across the country, and the claims were primarily for women who had identifiable gel implants encased in the silicone. Mr. White thought the injection cases were treated by many attorneys as the “second war” and at that point in time, before the discovery came out in 1994 and 1995 about where the gel had come from, the women with the gel injections had not known whether it came in a “barrel from Taiwan, or Japan, Dow-Corning, or Dow Chemical.” Most of the women who had the injections were minimum-wage earners and not very sophisticated.
Regarding “Global 1” and “Global 2,” Dow-Corning entered into the Global 1 settlement and all of the women were “sucked” into that settlement. But, three years into the settlement, Dow-Corning filed for bankruptcy and no one who had been waiting for settlement dollars from 1992 until 1995 received any money. In any event, Mr. White said, the global settlement had not covered injection claims. It was primarily directed at the implant claims. Then there was a second settlement, “Global 2,” the details of which he was not too familiar because many of his cases were litigated cases that settled in the litigation process. However, that second global case involved everyone but Dow-Corning and Dow Chemical; namely 3M, Bristol-Meyers-Squibb, McGhan, Baxter, and others. Those companies, he felt, would have no objection to the type of legislation being sought because they would not be affected. To sum up Mr. Nolan’s questions, Mr. White said there was a practical reason as well as well as legal reason why the women had not filed their causes of action.
As a sidebar, Mr. White noted that when his law firm was inundated and working up to 80 hours a week on those cases, people came to him and said they had an “injection case” in Las Vegas, could he help. He had to say no. In fact, he added, Judge Pointer who was the head of the settlement involving all the breast implant claims in Birmingham said it would be irresponsible for law firms to take on more cases and to represent more women than they could handle. It was not ethical. Thus, he believed those women got left out and, ironically, the injected women probably had the worst damages of all. In the future if there was an opportunity he would represent women against Dow Chemical, if the product could be identified.
Assemblyman Carpenter asked what Mr. White meant by his statement, “If the product could be identified.” Mr. White explained that if the type of gel used could be identified, a product liability suit could be filed without the product itself as long as one could show the court and the jury that more likely than not the product at issue was Dow-Corning gel; for a significant period of time Dow-Corning gel was the only product on the market, or so-called “enterprise liability” meaning they were responsible for the injections from that point. If someone came to him and they did not know when the injections were given, or there were no medical records, except the woman’s testimony that she walked into a doctor’s office in 1966 and he “shot-gunned” her with silicone, he would have a problem prosecuting that case, however, he added “given where his heart was he would try.” Even not knowing pertinent information would not preclude legal action, for example, if the women only knew the doctor’s name and through discovery it was learned that other women had gone to the same doctor at the same time period for the injections, the conclusion could be drawn that she had Dow-Corning gel, the only gel on the market at that time.
Assemblywoman McClain asked about Mr. White’s statement that he could go forward now and the bankruptcy would not be a problem. Mr. White said the bankruptcy of Dow-Corning would not be a problem because Dow-Corning was a separate entity from Dow Chemical. That notwithstanding, Dow Chemical had tried everything to ride coattails on its “child’s” bankruptcy, but the bankruptcy judge, Judge Specter, in response to Nevadans’ objections, said Dow Chemical had not filed for bankruptcy; it was a $25 billion corporation, and it could not get bankruptcy protection. Dow Chemical was fighting that and presently there was a stay against cases against Dow Chemical, because after Judge Specter ruled in the Nevadans’ favor, Dow Chemical and Dow-Corning appealed that determination to a higher court and a federal judge in Detroit said Dow Chemical cases were stayed. Currently the matter was before the Sixth Circuit Court of Appeals and it was hoped they would be able to return to where Judge Specter had them when he made his ruling.
Chairman Koivisto remarked she had learned that the use of the injections was probably more widespread in Nevada and California than the rest of the country.
Mr. White confirmed that, and added the California Assembly and the Senate had both passed a similar piece of legislation, as had the New York Assembly and Senate, however the Governor had vetoed the legislation.
The proposed legislation Mr. White referred to was provided (Exhibit D) and although he recognized it was late in the session, he nevertheless hoped that it could be pushed through on an emergency basis.
Chairman Koivisto asked for witnesses who had driven from Las Vegas to come forward.
First to speak, Joyce Simmons, a resident of Las Vegas, had silicone fluid, not gel, injections and stated she was one of the few still living. Ms. Simmons explained she had been injected with the “360 fluid” that had been invented just before World War II with a copatent agreement between General Electric and Dow Chemical. It was a top secret fluid used during that war as an automotive degreaser. A doctor named Sakari in Japan decided that since Americans liked women with large breasts, he began experimenting with that fluid, silicone degreaser, injecting it into women’s bodies. It had come to the United States used the same way, provided by Dow Chemical. Because it was a fluid and disbursed rapidly throughout the woman’s body it was almost immediately made illegal in the United States. There were many deaths and deformities immediately. She had only three injections in 1969, instead of a planned series of ten for one cup size, and she formed granulomas and went to a doctor. She had no idea that she had an automotive degreaser inside her. The surgeon who had injected her had studied at Mayo Clinic, and the Las Vegas hotels, the gaming industry, had paid for the injections for many women. They had no idea about the chemicals in their bodies; therefore they had no reason to attribute their illnesses to anything but unforeseen illness.
Ms. Simmons brought some material, books, press clippings, and so on that indicated hers was an outstanding Nevada family; she was one of Nevada’s first feminist poets, she and her husband had been foster parents to 20 children. Her son was the first out-of-town student in the Science, Engineering, and Technology Department of the Gifted Program, and his project was converting the diesel engine car. Her son was sick from the silicone in her body when she carried him in 1978. When he was born he had night sweats and constant respiratory problems. At a year-and-one-half old he was in Sunrise Hospital in a coma in isolation. She had no idea what was wrong. The diagnosis was an immune system shutdown. The information that took silicone off the market, “800 pages of dead and dying animals” was not available until 1992. At that point, she researched the fluid that had been put into her and had her son tested; he had lupus. He dislocated his shoulder, and the doctor remarked he had never seen a child’s shoulder joint just fall out like that unless they had been dragged in a motorcycle accident. He had connective tissue disease and joint disease. He sunburned extremely quickly, and he had allergic reactions that meant any food could send him immediately to the hospital.
Ms. Simmons noted that she saw many doctors regularly: a general practitioner, a cardiologist, an endocrinologist, a nephrologist for beginning kidney failure, a rheumatologist, an eye, ear, nose and throat specialist, and a neurologist; all at a cost to the state of Nevada. One neurology visit a year, the doctor’s charge alone was $10,000, not including the MRI or CT scan for the brain lesions. She noted there was a new report from the National Institutes of Health (NIH) that indicated women with silicone and saline implants had high rates of brain cancer, among other things. She also had deformities and had been on total disability for 15 years and at one time was legally blind, until recent eye surgery. Ms. Simmons said that she was seeking a waiver of the statute of limitations for Nevada, just as had been done for the global lawsuits. It was a justice issue, she added, and there was a need to stop the chemical companies from afflicting people with Agent Orange, DDT, Dioxin, all Dow Chemicals, and so on. Dow had never paid anything and “had been destroying the world for 100 years.” She urged the committee to help the women bring Dow to justice and give them a chance in court.
Caroline Bromm, a resident of Las Vegas, distributed photographs of her injuries to the committee. She related having Dow-Corning implants in 1976 at Mayo Clinic. She had 13 surgeries. She was told the implants would last a lifetime and never break. She had not made any settlements or received any money from Bristol-Meyers Squibb or Dow Chemicals and has had four attorneys. She passed to the committee a statement from GE Silicones (Exhibit E) that stated in part:
GE Silicones Americas, GE Bayer Silicones and GE Toshiba Silicones will not knowingly promote the use of our products or sell to applications in which our products are implanted into the human body for 29 days or longer, are injected into the body or used for contraceptive purposes.
Ms. Bromm then read an excerpt from the Los Angeles Times that stated:
Between 12,000 and 40,000 women in Las Vegas, Nevada received injections before it became a felony under Nevada state law.
She said she had had hives for over a year when she went to Mayo Clinic. Doctors there removed the Dow implants and replaced them with Bristol-Meyers Squibb, but did not tell her. She had not known until she saw her records from Mayo Clinic years later that her implants had broken and were free running inside her body for a year. Ms. Bromm also produced a legal pleading (Exhibit F) naming hundreds of victim-plaintiffs. Many of the women would have appeared but had been told by their attorneys to stay away, there had even been gag orders. She reported the minute Dow-Corning went bankrupt many attorneys dropped their clients and they could not find another to take their cases.
Assemblyman Nolan asked of those who had major health problems, were any receiving some medical subsidy from the state. Many said they were on disability. Ms. Bromm said she had to declare bankruptcy in order to get disability.
Next to speak was Gaylene Ausem, who stated she had been injected by the same doctor as Joyce Simmons, Dr. George Clivken, Las Vegas, in 1971. She knew the product was Dow because she watched him take the fluid from Dow-logo bottles taken from Dow-logo boxes. She had ten sets of injections and by 1974 she had small bumps all over her body. When her orthopedic surgeon started to remove them she showed him her breasts and he told her to take them out immediately. They knew nothing about the poisons at that point. She had gone to Dr. Dombroski, whom she thought was going to remove the gel and replace it with implants. Later, through a body scan MRI, she found she had silicone masses everywhere. She had had two sets of implants as well. She had rheumatological disorders, her spine was disintegrating, she had neurological disorders, chronic colon problems, constant bleeding, and her thyroid no longer worked. She lived on drugs and tests, and the tests were negative. One did not always have the disease that went with all the symptoms. She had globules of silicone, pustules, come through her face and other parts of her body all the time; they were sore and hurt and left scars. They started as bumps like grains of sand and if pulled out would be a long, “gooey strings.”
Ms. Ausem said she heard there were “new and improved silicone implants,” and asked the committee how they would feel about “new and improved DDT” or “new and improved asbestos.” It was time to get those products off the market, she added, before they implanted the next generation of girls with new chemical-based, but still poison, substances.
D. Lee Randolph, also of Las Vegas, provided her written testimony (Exhibit G), and related some of the highlights: She was 40 years of age and sometimes spent a week at a time in bed, she could not get out of bed even to go to the bathroom. She was the mother of two teenagers who often had to care for her. She urged the committee to give her an opportunity to fight her own battle with Dow and McGhan. According to the class action, because she had two different types of implants she could not sue either company. She believed that taking away some roadblocks like that would mean that those companies would have to be responsible for what they had done. If the court decided they were responsible it would be great, but all she wanted was the opportunity to pursue them.
She reported many illnesses since receiving her implants 16 years earlier, and in the last five years had made 598 visits to various physicians. Although doctors had stated the women should have known something was wrong with them a lot sooner, she, for one, believed her doctors and never thought one would mislead her intentionally or accidentally. That was not the case; they were in business and would do anything to sell that surgery or that product. They could have been misled too, but that was not her issue. She was told she was not eligible for worker’s compensation or Social Security, because she got sick too soon, she had not built up enough credits, consequently no one was supporting her, and now she discovered she could not be part of the class action because she had two different manufacturers. Her last rupture was nine months ago and the liquid was dripping down her body. Her insurance had rejected her claim as being cosmetic not medical. The same insurer stated that if a man had a penile implant that ruptured it would be covered.
Senator Dina Titus remarked that it was not unprecedented to revisit statute of limitations or changing the date they started to toll. An example were the victims of the nuclear defense industry, because when it was discovered many of them had cancer they did not know had been caused by exposure to radiation, they went back to change the two-year statute of limitations to begin to run at the time they discovered it. Therefore, she said although it was not impossible to do what they were asking, it would be a challenge to prove their case. However, they deserved a chance to try.
Ms. Randolph noted that because of the Dow bankruptcy, finding an attorney to represent them would be yet another challenge.
Glenda Wilson, a 20-year Las Vegas resident, a widow, a mother, grandmother, and great-grandmother, was a silicone breast implant survivor. She had been a successful real estate broker. She has had silicone rupture in her body for 24 years. Her illness was much the same as hundreds and thousands of other women whose bodies had been poisoned by the toxins of silicones. Other poisons could be secreted or purged from the body, but not silicone. The body could not rid itself of silicone and the medical field had no knowledge how to remove it. She had raised her family, she said, without the need of help from the state or welfare system, however, she was awarded total disability in 1996, with systemic silicone disease, and it had taken two years to receive her award. During that time for the first time in her life dependent upon the welfare system, and like many other silicone survivors, she became a liability to the state of Nevada, through no fault of her own. Silicone women were not insurable. She felt that if insurance companies could change their rules to protect themselves, then women like her needed to be able to change something that allowed them the opportunity to protect themselves through the court system.
Ms. Wilson stated that women who died from cancer as a result of silicone gel implants left behind families with debts as a result, and the core of the family was ripped apart for the protection of the corporations that had successfully lied to the public and paid millions for the influence of public relations to the medical and science communities. They had successfully used a gag order in the judicial system and they had utilized the two-year statute of limitations. She asked for help in opening a window of opportunity to the statute of limitations the corporations used as a loophole to the judicial system.
Finally, she said, in the 1970s the Nevada Legislature banned the injection of silicone into the human body and made it a felony. The corporations got around that law by enclosing the silicone in a bag. They knew the bag leaked silicone into the body continuously but they had not told the medical or science community. There was little difference between a silicone injection or a bag leaking silicone into the body.
Judy Lieb, a Nevada resident, echoed the sentiments, statements, and medical problems of other witnesses. She briefly described she had breast cancer in 1982. She said her doctors talked her into Dow-Corning implants and she started getting sick in the early 1990s. In 1993 she found a doctor who would remove them, because she then knew they were ruptured, by the change in her physical appearance. The silicone had spread to her whole body. She lived on medication and IVs and did not get out of bed except to go to the doctor. She also had been on disability for eight years, as well as Medicare. Her medical bills were thousands of dollars a month.
Next, via videoconference from Las Vegas, Charlotte Mahlum Daneke, the client of Geoffrey White who handled her case against Dow Chemical, said she was the spokesperson for all the women in Las Vegas, and all over the country. Silicone victims had been told the implants would not rupture. She started to get sick five years after she received her implants, but when they examined the implants after removal they found they had been ruptured in August 1985, when they had been implanted. She did not know the silicone was leaking all over her body. Doctors tended not to believe the women. One doctor she just saw wanted to put her on more medication. She was scheduled for another brain MRI because her head was full of white lesions of silicone. She, like so many others, had bowel control problems. She was married for 28 years but four years ago her husband left her because he could not deal with her being sick and the problems encountered. That was probably true with 50 percent of the women victims.
Next to speak from Las Vegas was Richard Butcher who read a letter from his mother who could not be present:
My name is Patricia Butcher. As a long time Nevada resident I have experienced the horrors of what silicone could do to the body. I came to Las Vegas in 1963 and was modeling in addition to being a registered nurse. In 1964 I chose to have silicone breast injections to enhance my appearance. The early 1960s was also the time when many of the showgirls were having silicone injections. It was almost a requirement and a deadly one as I now look back. Three years after my series of silicone injections and immediately after the birth of my first child I developed mastitis, which is an inflammation of the breast that sometimes occurs after childbirth. I was acutely ill on bed rest for several weeks. This led to continued flare-ups every few months over the next 30 years. Pain, fever, and swelling in the breast and pectoral muscle area would last for 4 to 6 weeks. I spent most of the time in and out of bed trying to cope and take care of my family. Doctors were baffled in the early years and did not think it was due to the silicone. They kept saying they had not seen anyone else with this problem. I became frightened of the lack of their knowledge and then taking all the drugs they wanted me to. I was told I would have to be on Cortisone the rest of my life. If I had followed these instructions I’d be dead now. Somehow through my strong faith and prayer I knew I had to find my own way to help myself. In 1974 I had a subcutaneous mastectomy with saline implants. One of them ruptured a year later. In 1976 the saline implants were replaced with silicone implants. Using natural methods of herbs, vitamins, hypnosis and other alternative techniques I was able to work again as a nurse for a few years. Many times I’d go to work with pain and fever and just tough it out but then the continued symptoms of fatigue, muscle and joint pain became too overwhelming for me. I knew it was time to have all the silicone removed from my body or as much as possible. I had a bilateral mastectomy in 1994 and my plastic surgeon told me that out of the 1,500 explanations he had done I was the worst one he had ever seen. I was left very disfigured with no tissue to reconstruct with. I now have breast prosthesis. My flare-ups are at a minimal but I am left impaired with muscle weakness, fatigue, chronic rashes, and muscle and joint pain. My immune system is compromised and I have allergies and sensitivity from many chemicals and products. I have been on disability for six years. As a registered nurse in the state of Nevada, I not only experienced the debilitating and damaging effects of silicone in the body but have witnessed many women over the years suffer from the toxic effects also. I feel it has been a contributing factor in many deaths also.
Patricia Butcher
Mr. Butcher said in closing that since he and his sister were children they had witnessed the things silicone had done to their mother.
Next, Bonnie James who said it was very gratifying after so many years to have people in power listen to all they had been through. She had silicone implants in her body for 20 years when both had ruptured, according to the mammogram she had done. She had the implants removed about nine years ago. She believed they had been ruptured for about ten years before discovery. She had been officially disabled for six years but had been too ill to work for ten years but had to support her children. She related many of the same symptoms and problems as the previous witnesses resulting in many autoimmune diseases including multiple sclerosis, peripheral neuropathy (damage to the hands and feet), arthritis, ulcers, gastrointestinal problems, and had her gall bladder removed. At that time they found a picture of silicone in her gall bladder, three diseases, and a picture of silicone on her liver from a liver biopsy. Additionally, she had hypoglycemia, severe chemical, air, and food allergies, ACTH deficiency, a rare and hard-to-diagnose disease, and many other diseases. She was in constant pain even though taking narcotics.
Ms. James said the most difficult pain was not having their illnesses acknowledged for so many years, and the victimization by the chemical companies by denying their very apparent and well-documented illnesses. It was, she added, so empowering to be heard. The committee was the last chance for those women to be able to have their day in court.
Chairman Koivisto appreciated how difficult it was for all the women to come to talk to the committee and appreciated, too, that they had shared their stories with them.
From Las Vegas, Laurie Gilmore, a resident of Henderson, Nevada, reported that in July 1992, after much thought, research, and the reassurance of her plastic surgeon, she received McGhan silicone textured saline implants. She was a new mother and very active at the time. Before her daughter was born she had been involved in the Army National Guard, as well as UNLV ROTC (Reserve Officers Training Corps) program where she was the first female to be on the prestigious Ranger Team. She was involved in activities such as rappeling, mountain climbing, biking and marksmanship. Her training included field training exercises, daily PT routines, and the weekly run of all the stairs at the Thomas Mack Center. She also rappeled Australian-style or face-first from the rafters. All while taking 18 credits at the university and working fulltime. Today, however, she said she was unable to negotiate even a few stairs without the use of a cane. She was 31 years old. Like many women, she said she had been told implants were safe, and the only problems she might encounter were post-op infection, hematoma and rupture. All seemed easily remedied according to her doctor, so she took the risk. She was never given the option of risking her overall health; her progression to disability was insidious. One by one her symptoms began to appear, at first minor, but they eventually led to debilitating weakness, fatigue, mental fog, muscle, joint, and bone pain, tremors and the inability to fend off illness. She could no longer play with her daughter, who could not understand how much even hugs hurt. No doctor had been able to help. She had been diagnosed with everything from anxiety and depression to multiple sclerosis. In 1998 she had been diagnosed at the Mayo Clinic, in Scottsdale, with fibromyalgia. No one ever hinted that her implants could be the cause. It was not until she had seen a story on local news that the thought of the implants being the cause ever entered her mind. She believed she and thousands of women had been deceived into thinking their implants were safe so a few people could get rich. Her symptoms had improved somewhat since her explants last year, but it was unknown whether she would ever fully recover.
Patty Fawcett, from Las Vegas, informed the committee she had also had saline implants for a total of eight months before her immune system was destroyed. When she was explanted she was shown to have an autoimmune disease, an elevated rheumatoid factor with a high of 159. She believed the implants caused her disease because since the explant, the rheumatoid factor had dropped to 58; under 40 was normal. It had taken three years to reach her current level of regaining her health. She believed, too, that she would never have been able to prove any of her illnesses in the short period of time that the statute of limitations allowed. She had formed a saline support group on the Internet to help other women as they discovered the truth about the dangers of their saline implant. There were currently 70 members who shared stories similar to hers and the other women who had testified. Those women were alike also, in that they had lost their jobs, homes, savings, and everything they held dear as a result of the implants or injections. She noted the women joining her group seemed to be younger and younger, many still in their 20s. Ms. Fawcett advised her statute of limitations had tolled, but she was still healing from her brief encounter with her silicone-encased saline implants. She asked for justice for those before her and those who would follow in her footsteps.
Colleen Michael, a Nevada resident since 1961, spoke in support of Gaylene Ausem, her friend, and all women who were implant or injection victims.
Lastly, from Las Vegas, Diep Woodard, came to Nevada in 1982. She had a silicone implant in 1985 and shortly after that became very ill. Ms. Woodward, confined to a wheelchair, spoke with great difficulty about her illness. She had explants in 1994, but her health continued to deteriorate.
Chairman Koivisto thanked all the women who testified for their compelling testimony.
Dr. Mary Stewart, a sociology professor at the University of Nevada, Reno (UNR), had conducted research, interviewed many women, and written a book called Silicone Spills: Breast Implants on Trial, in its second printing, which had been well received by the medical and sociological communities. Her work focused on the corporations and legal system in regard to the silicone issue. The corporations and manufacturers knew from the beginning that silicone gel and silicone fluid were dangerous, damaging, and destructive to women. The women had not known. For 20 to 40 years women had been receiving either silicone injections or implants and were unaware of the damage, and were not told, and were absolutely assured time after time by their doctors, literature, and so on, that those implants and injections were 100 percent safe lifetime products. Only with time had those women finally and slowly been made aware of the kind of damage they had received from the implants.
Dr. Stewart stated that it was wrong to establish that women who received injections in 1960 and 1970 should not have the ability to at least bring their claim against the manufacturer, Dow Chemical Company. It was another kind of violence against women who had no idea what damage was being inflicted upon them. She noted the women who had testified had nonclassical autoimmune problems and accordingly were very difficult to diagnose. They were often discounted as being hypochondriacal or some other way disturbed, but they were instead and in fact, women who had severe physical and practical disabilities. The bottom line was that the corporations knew the injections were dangerous and consequently developed implants to hold the fluid. When the implant leaked into the body it had exactly the same impact as the injection.
Roy Cannon, an attorney, wrote the proposed legislation (Exhibit D), and since 1995, had represented the injection cases. At that time he had taken over a lawsuit filed by Claudia Brisson against Dow Chemical and Dow-Corning, and was filed in Federal District Court in Northern District, California. That litigation had been stayed by the Dow-Corning bankruptcy.
Mr. Cannon said he needed the committee’s help to be able to pursue that litigation on behalf of the injection women who had testified today. Without the committee’s help, he said, most of those women would be precluded from obtaining any recovery from the manufacturer of the silicone fluid injected into them. There was no question who manufactured that fluid: Dow-Corning and Dow Chemical were the only companies that manufactured medicinal grade injectable silicone.
Assemblyman Nolan asked how many women Mr. Cannon represented. Mr. Cannon answered that the lawsuit he had filed was a putative class action on behalf of all silicone injection recipients, male and female, in the United States. The week that the motion for class action certification was pending before the District Court in San Francisco, Dow Chemical was successful in having the bankruptcy court rule that they were covered by the injunction and the stay was granted. At the present time, he said he represented individually between 30 and 50 silicone injection recipients. There were 30 included in the class action, the additional 20 he represented on an individual basis.
Mr. Nolan noted that New York had enacted similar legislation, and that in California legislation had passed both houses but was vetoed. Mr. Nolan asked if Mr. Cannon knew how many other states had considered similar legislation. Mr. Cannon said he knew only about New York and California with respect to implants. However, with respect to other products, such as Dalkon Shield and Asbestos, many states had enacted legislation very similar to the window of opportunity that was being proposed here. Mr. Nolan asked Chairman Koivisto if staff could research the legislation situation in other states for the committee. Chairman Koivisto agreed that should be done.
Assemblywoman McClain asked why it was even necessary to have, in the proposed legislation, “action was commenced within one year from the effective date of this section.” She asked why have any statutes of limitation of silicone-induced illnesses. She received a round of applause for her suggestion.
Mr. Cannon said he “would love that,” however, as a practical matter, what was being asked for in the proposed legislation was about the most they could hope to get passed. No statute of limitations would be preferable, naturally. Ms. McClain asked if it could be written so there was a time limitation that went into effect after the woman had been diagnosed. Mr. Cannon said that could be done, and he urged the committee to do that, however, that would not cover the women who had already lost their right to bring suit due to the statute of limitations, and that had been the purpose of the bill.
Chairman Koivisto expressed that if it were up to her she would say “let’s go for it, we’ve got to do this.” However, because it was an issue on which the statute had expired, in order to be able to introduce legislation and be able to pass it through both houses and get it signed by the Governor, the committee had to be very specific. She noted, too, that in California the Governor had vetoed the bill; she did not want that to happen here. Therefore, it would need to have a time specific, probably two years, because existing statutes had the two years built in and there had to be a consistency. At the current point in the legislative session, legislation had to be approved by the Speaker of the Assembly and the Senate Majority Leader to even get approval to do an emergency measure, which it had to be.
Mrs. Koivisto said the committee would work with legal staff to see if proposed legislation could be patterned similarly after that which Mr. Cannon had developed, and exactly what could be done.
Assemblyman Nolan felt it would not be kind to hold out false hope to those who had suffered so much already. What was being asked was not an easy process; to get an emergency measure passed in the current session, as important as it truly was, would be very difficult, notwithstanding the willingness of Chairman Koivisto and the committee members. They were committed to try to make that happen, he added. It would be necessary to get a commitment from the Governor that if the proposed legislation went through that it would not be vetoed, because all the effort would be for nothing. Mr. Nolan emphasized, too, that it was not the last hope. The alternative, if a measure did not get through, would be to assign an interim committee to fully develop the legislation with the full backing of the legislative Legal Division.
Finally, Mr. Nolan assured the women who felt that had it been a “male issue” the problem would have been taken care of, that there was genuine compassion among the men who brought the issue forward and who were on the committee, not to mention that those men had mothers, daughters, wives, and friends, and they represented the women in the state.
Gaylene Ausem noted that the statute of limitation had been waived in those global lawsuits, and that it had subsequently been used as a whip to get the women to take whatever was offered, or they could not sue because they were past the statute of limitations. She asked if there was a way to take the agreement they had already made but tell the companies they could use it as a whip; in other words, if their settlement offer was not accepted the women would still have their rights under waived statute.
Chairman Koivisto said Ms. Ausem should discuss that idea with her legal advisor to see if it could be formulated into a workable concept.
Darcy, Adamour, from Las Vegas, said they were citizens and it was in the United States Constitution that they were entitled to their day in court. “Why then was it not thought of as murder, as there was no statute of limitations on murder, when in fact that was what Dow was doing.”
Chairman Koivisto said the committee appreciated her remarks and they would see if they could do something to help.
Ms. Adamour asked for advice on what they could do meanwhile, because as recently as this week she knew of someone getting silicone implants. Chairman Koivisto advised her to keep the pressure on legislators at the state and federal level; that was how things were accomplished.
Assemblywoman McClain pledged her support for anything they could do, but one thing she did not want to see happen was to put in a time limit that Dow could sit and wait. It would be important, she added, to establish a certain time for the known cases but left something open-ended for the cases that had not yet been diagnosed. For instance, add a time limit to the diagnosis date that gave those women a chance when their problems arose.
Chairman Koivisto again thanked the participants and witnesses for coming to share their experiences, and advised they would go to leadership and see what could be done. The audience applauded.
With no further business before the committee, Chairman Koivisto adjourned the meeting at 5:23 p.m.
RESPECTFULLY SUBMITTED:
Darlene Rubin
Committee Secretary
APPROVED BY:
Assemblywoman Ellen Koivisto, Chairman
DATE: