Waiting game continues in breast-implant case

CARSON CITY -- Charlotte Mahlum has been "patiently waiting" for 15 months for the Nevada Supreme Court to make a decision on her $14 million breast-implant case.

Her lawyer, Geoffrey White, says, "I don't want to criticize the Supreme Court. But it's sad because that's the way the system is.

"The cases deemed controversial seem to take longer than other cases," White said.

Attorneys for Mahlum, who now lives in Las Vegas, and for Dow Chemical argued the case before the state's high court April 16, 1997. The case was taken under submission.

Chief Justice Charles Springer said the case was discussed again Thursday, as it had been at many prior court meetings. One of the justices disagrees with the majority and will write a minority opinion, he said.

"It is not lost in the cracks," Springer said. "This is a very complicated case. It's a case of national significance. I know 15 months is a long time, but I know the justice who is working on this is working hard."

The state Judicial Discipline Board recently filed a complaint against Clark County District Judge Gloria Sanchez for delaying decisions for anywhere from 12 months to 19 months after taking them under advisement.

In contrast to Nevada, the California Supreme Court heard arguments on a similar case involving Dow Chemical and breast implants and issued a decision within 90 days. White said, however, there was limited evidence before the California court and the appeal was from a pre-trial judgment in which there were narrow issues.

The appeal in Nevada involves a four-week trial.

The California court ruled that Dow Chemical, a 50 percent shareholder in Dow Corning, which made the implants, could not be held liable in these cases -- one of the key issues before the Nevada court.

Thomas Wilson, a Reno lawyer who represents Dow Chemical, said the California decision "is relevant but it's not controlling," which means the Nevada court doesn't have to follow it. "We're just waiting for a decision."

A district court jury in Reno in October 1995 awarded Mahlum $3.9 million in damages, assessed $10 million in punitive damages against the company and gave $200,000 to her husband, Marvin. The Mahlums formerly lived in Elko but moved to Southern Nevada.

Mahlum could not be reached for comment, but White said, "Her health is deteriorating and she's a very patient woman. I'm not criticizing the Supreme Court. The wheels of justice move ever so slowly."

White said, "Charlotte and Marvin are going through difficult times occasioned by her illness and financial circumstances. It's taken a toll on the marriage, and they have separated and divorce proceedings are pending."

After a mastectomy in the late 1980s, Mahlum elected to have silicone gel breast implants made by Dow Corning. She had them removed in 1993 after experiencing health problems.

Her case was the first to go to trial exclusively against Dow Chemical, which had $2.1 billion in income in 1996. Dow Corning is now in bankruptcy.

The jury in Reno found Dow Chemical "aided and abetted" in the development of the breast implants. White said the jury also found "fraudulent concealment" by Dow Chemical when the health problems caused by the implant were realized.

White says he doesn't think the California case will have any adverse impact on the Nevada case. The jury decision in Nevada is more far-reaching, while the California case was limited to a single issue, he said.

Dow Corning was once the biggest maker of silicone gel breast implants, but a myriad of lawsuits forced it into Chapter 11 bankruptcy reorganization in 1995. It recently offered to pay $3.2 billion to an estimated 170,000 women. That is $600 million less than what the women sought.

White estimated that several hundred cases are pending in state and federal courts in Reno and Las Vegas against Dow Chemical and Dow Corning. The $3.2 billion offer breaks out to an average payout of $30,000 per injured woman, he said.

"In many cases, that won't begin to cover medical expenses for multiple surgeries," White said. He said he expected that women in such circumstances would not agree to the settlement.

In a related development, the Massachusetts Supreme Judicial Court on Thursday upheld a judgment worth $2.5 million to a woman and her husband for injuries sustained as a result of the rupture of gel breast implants. The judgment was against Baxter Healthcare Corp. and Baxter International Inc.

White said this was the first state Supreme Court ruling in the nation on this issue.

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