Silicone City
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O’Quinn leans forward in his seat, still boring in with his eyes, unable to stop himself. “Shane—that’s my favorite movie of all time. My daddy took me to that movie and pointed to the screen and said that’s what a man is all about. You don’t think that would have an impact on a kid?
“When the bad guys come, who do you want?” he continues, the waves of his shimmering brown hair vibrating with intensity. “You don’t want some namby-pamby son of a bitch. If the companies obeyed the law, I’d be the Maytag repairman.” Slamming back in his seat, he rests his case.
O’Quinn triumphs in the arena of breast-implant litigation because he understands that scientific evidence is nowhere near as powerful as age-old myths about femininity, in particular those of women wronged. Every O’Quinn trial allows the jury to become the plaintiff’s rescuer, a strategy that has earned him more than two thousand clients—more than any other attorney involved in implant litigation. Not coincidentally, it is largely because of O’Quinn and a handful of other plaintiff’s attorneys that Harris County has more implant cases on file than any other jurisdiction in the United States—about three thousand of them.
O’Quinn’s first victory was in December 1992. Implant litigation had become a growth industry across the country by then. Sometimes the plaintiffs won, sometimes the defendants did, so no one paid much attention to the case of a Pearland woman named Pamela Johnson. She sued Bristol-Myers Squibb, claiming that her ruptured implants had caused immune-system problems that led to a partial mastectomy. In the eyes of defense lawyers, Johnson wasn’t that sick. Her complaints were vague and could be linked to previous medical problems or, perhaps, her heavy smoking. And, of course, science was on their side. The most illustrious institutions of American medicine had concluded, in essence, that the number of sick women with implants was proportionate to the number of sick women in the general population. In other words, these women would be just as sick even if they hadn’t had their breasts enlarged.
In the Johnson trial, O’Quinn struck right at the heart of that argument. Though the plaintiff has the burden of proof in a civil trial, he forced the manufacturer into claiming unequivocally that implants were safe. Then, after submitting evidence that manufacturers had skimped on animal research, O’Quinn co-opted the defense’s star witness, Noel Rose, a Johns Hopkins immunologist. Once Rose testified that more research was needed to prove the effects of silicone on the body, O’Quinn coaxed the doctor into admitting that he was lucky not to be a sick woman forced to endure the glacial progress of scientific research. “I am indeed,” the doctor admitted softly. The jury awarded Pamela Johnson $5 million in actual damages and $20 million in punitive damages, setting a new standard for implant-case awards.
Then, in 1994, O’Quinn turned his guns on three more companies, 3M, Inamed Corporation, and its subsidiary the McGhan Medical Corporation. Again, the manufacturers scoffed. The plaintiffs in this case did not even have ruptured implants. But O’Quinn put on evidence of “gel” bleed—showing that traces of silicone had seeped out of supposedly sealed implants. More important, he directed a domestic drama for the jury. He put the beefy husband of one of the plaintiffs on the stand, an ex-jock who agonizingly testified that he had ignored his wife’s complaints as she had grown progressively sicker. “He was saying he thought, ‘Well, she just cain’t play hurt. She ain’t tough,’” O’Quinn says. Then, in open court, the man apologized to his wife for not having faith in her. The jury awarded $44 million. As impressive as those verdicts are, they don’t really explain why O’Quinn’s client base went from 52 women in 1991 to 2,000 in 1994, and why silicone-gel implants have become, essentially, items for time capsules. (Only one company still makes implants.) That story has less to do with the psyches of women than with the psyche of John O’Quinn, and his need to win ever bigger, even better.
His firm is a rather unlikely champion of aggrieved women. It is considered something of a horny boy’s club, and the gum-chewing O’Quinn is not known for his polish. He is, simply, a weapon of mass destruction, the driven son of a West University mechanic, first in his law school class at the University of Houston, one of the rare few to abandon the cushy corporate culture of Baker and Botts for the treacherous but far more remunerative field of plaintiff’s law. O’Quinn’s career has been successful as it has been controversial: He has won more than $1 billion in judgments in a dozen years, but he was also sanctioned by the state bar amid accusations of jury tampering, barratry, and other abuses in 1989. Like the implant surgeons and club impresarios before him, he is entrepreneurial to the core, a man who wants to be the best there is. In the process, he takes no prisoners.
Breast-implant litigation actually began with another Houston plaintiff’s attorney, a Joe Jamail protégé named Richard Mithoff. In 1977 he represented a Cleveland woman who said her ruptured Dow Corning implants had caused everything from breast pain to mental anguish. Mithoff won a $170,000 verdict against the manufacturer, the largest implant award up to that time, but the case received little publicity and did nothing to slow the breast-implant boom.
The person who really saw the implications of the implant was O’Quinn’s partner Richard Laminack. In 1988 he was representing a Beaumont woman with ruptured Bristol-Myers implants in what he thought was a medical malpractice case. After contacting the woman’s plastic surgeon, Laminack was told, “I know you’re suing me but I could be your best witness.” The doctor educated Laminack in what he believed to be the flaws of implant design, and a case of medical malpractice became a case of product liability—allowing for the possibility of a much bigger judgment against a much richer defendant (the manufacturer instead of the doctor) and increasing the prospect of multiple defendants, the biggest bonanza of all. Laminack went after the manufacturer and settled the suit for an undisclosed amount after producing evidence that the company had ignored warnings that the product needed more testing.
What happened next was something akin to any entrepreneurial start-up. O’Quinn’s firm began to build a client base. Joining with public action groups, Laminack appeared on talk shows and began running ads. “Are beautiful breasts to die for?” one print asked, suggesting that capsular contraction is fatal, which it isn’t. As time went on, attorneys from the firm lectured support groups, sponsored legal seminars, and even held teach-ins with medical researchers. The Johnson verdict of 1992 was, in that regard, not just a trial but a powerful advertising vehicle. “That’s when we loaded up the truck and we moved to Beverlee,” says Laminack. With each victory, the attorneys attracted more clients, enabling them to pick their plaintiffs from the sickest and most virtuous. Topless dancers were out, for instance—a case in Colorado proved juries didn’t like women exposing their breasts.
While O’Quinn’s firm was in a growth phase, more other attorneys around the country were in a settlement phase. Implant manufacturers had agreed to put $4.2 billion into what was known as a global settlement, overseen by a federal court in Birmingham, Alabama. They wanted to pay off all victims with awards ranging from $204,000 to $1.4 million in a single agreement and get on with business. Crucial to the success of the settlement was getting O’Quinn to the table. He declined, threatening the peace, perhaps because such newly developed mass tort solutions benefit the group at the expense of the individual—“The global overpays women who don’t deserve money and underpays those who do,” Laminack says—and perhaps too because the firm’s 40 percent standard fee could garner a much higher return at trial.
Either way, O’Quinn forced the companies into a war of attrition, making them pour into the global while fighting him at the courthouse. And it wasn’t just any courthouse, either. Most plaintiff’s attorneys had to take their chances with the strict rules and appointed judges in federal court. But because so many women got their implants in Houston, O’Quinn could sue the doctors (who were invariably dropped from the suit on the day of the trial) and get the case into state court, where rules are looser and judges are elected—often with the help of generous campaign contributions from plaintiff’s lawyers. (O’Quinn donated $183,000 to political campaigns from 1990 to 1994.) It is a strategy that one person close to the firm estimates has brought in an estimated $12 million to $13 million a month in settlements, a figure O’Quinn disputes. “It’s too low,” he jokes.
