"I think it was a turning point for women lawyers," says Littlepage, who was two years out of law school when the litigation heated up. "It showed that they didn't have to be relegated to minor duties, that they could carry prominent roles."
Today, two decades after Baxter's first breast implant case went to trial, Baxter's female lead trial attorneys, Debra Pole, Mary Wells, and Christy Jones, are household names in the product liability bar, as are some of the women lawyers who were at their sides, such as Diane Sullivan. "I like to think that the litigation helped alter the face of law firms," says Sullivan, who is now a partner at Weil, Gotshal & Manges. "They changed because clients demanded it."
Although Persky conceived of Baxter's female-focused defense strategy, Debra Pole played a big role in implementing it. Now a partner at Sidley Austin, Debra Pole had started representing Baxter in 1984, a few years after moving to Los Angeles from West Palm Beach, Florida, where she'd spent four years as a prosecutor. In Los Angeles, she eventually became a partner at a small firm, Dickson, Carlson & Campillo, and became one of Baxter's regular outside counsel in California. Leading up to the breast implant litigation, Pole had worked on several product liability cases for the company.
In fact, one of the few breast implant cases that was filed before 1990 had landed on Pole's desk. The case, Deborah Phillips v. Baxter, had been filed in state court in Norwalk, California, and became the first-ever breast implant suit that Baxter took to trial. It resulted in a defense verdict in June 1991, just as Baxter was discovering the full scope of its exposure. Pole's performance in that trial was impeccable, Persky says. "I saw her on her feet—the way she related to the jury and plaintiffs and opposing counsel," Persky recalls. "She's as fierce a warrior as there is. She was a trial lawyer I wanted Baxter associated with."
Later that year, as Pole prepared for another breast implant trial in Colorado Springs, Persky called Pole to say that she was naming her national trial counsel for the breast implant litigation, giving Pole oversight of the trial teams that would end up handling breast implant cases across the country. A few weeks later, Persky consolidated the national trial counsel and national coordinating roles, putting Pole in charge of the entire litigation. "I screamed into the phone," Pole says. "If it happened now, I would have been much more mature—'Oh, thank you. That's fabulous.' But at that moment, I could do nothing but scream."
Looking back, Pole sees the appointment as the defining moment in her career. "To have a black woman in the role—at that time—was just extraordinary," she says. "It helped propel me onto the national products litigation stage."
In addition to compiling Baxter's team of outside counsel, which she did by building on the company's existing network of lawyers through referrals and recommendations, Pole served as lead in eight of Baxter's breast implant trials. The size of the litigation—and the opportunity it gave to Pole—ended up surpassing her own expectations. "I initially thought the lawsuits would peak at around 300," she says. But the number quickly grew beyond that, she says, and "on a few occasions, plaintiffs lawyers tried to personally serve me with 80 cases in one day. I would end up with a whole pile of complaints on my desk. Getting our arms around the litigation was the first step."
Baxter met with its entire legal team for the first time in 1992, in an auditorium at the company's headquarters in Deerfield, Illinois. The collection of the company's defense attorneys—about 40 percent of whom were women—left a lasting impression on one of Baxter's youngest outside lawyers, who was sitting near the rear of the room. Diane Sullivan was 28 and a fifth-year associate at Hannoch Weisman, which was then the largest law firm in New Jersey, her home state. "There were at least a hundred or so people there, and Marla was in charge," she says. "As a young woman, it was something you just didn't see. You don't see it that much now, let alone then."
Sullivan had spent the first few years of her career doing insurance defense work. Hannoch Weisman represented a company that insured drug stores, and slip-and-fall cases became Sullivan's passport to the courtroom. "If a shelf fell on a customer at a store, I was able to do the opening and closing," Sullivan says. She also pitched in when her firm did product liability cases for Baxter.
As Baxter's breast implant docket in New Jersey grew, Baxter hired Hannoch Weisman as its New Jersey counsel. A few months before departing for the meeting at Baxter, a partner pulled Sullivan into the breast implant work. "He said to me, 'They're looking for women, so I'm bringing you,' " she says.
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