Tuesday, May 13, 2014

Improbable Intersections in Life

I stopped using birth control in 1994, I think. Maybe it was 1995. It's hard to remember. We decided to let nature take its course. Except it didn't. Not in the usual way, anyway. After a year  or so of excruciatingly regular periods, I went to my family practitioner and asked her where we should go from here. She suggested an obstetrician she was familiar with, a woman who had done fertility work at Kaiser but was now at the Cleveland Clinic. Great; nothing better than the Cleveland Clinic, right? I made an appointment to see her.

About this time, in late 1996, I was still doing asbestos litigation, but much less of it. I had graduated to other toxic tort, drug and medical device litigation as well as some complex commercial and family law litigation. My firm had been retained to represent three pharmaceutical companies in local DES (diethylstilbestrol) litigation. There were over 100 plaintiffs in this litigation and close to as many defendants. These were the daughters of women who had taken DES during pregnancy. The men in my office were squeamish about the feminine nature of the claims and had a grudging respect for my ability to organize large projects like this one. So it was mine. I had dug into the science and medicine with enthusiasm.

I went to see my new doctor on a sunny fall afternoon. She was bubbly, friendly and full of encouragement. She was not actually in the infertility department at the Clinic, she was in the regular OB-Gyn department, but she had experience in that area, which was good enough for me. She seemed to know what she was doing. I just wanted a baby.  As the 5th of 6 children, I never anticipated that I would have a problem conceiving. I have always been healthy and had never missed a period since I started having them. Mother Nature, it seems, has a cruel sense of humor.

The first thing on Doctor Bailey's agenda was a procedure called an endometrial biopsy. This would determine if the developmental phase of my uterine lining matched the calendar phase of my cycle per my ovulation and menstrual cycle. No woman enjoys a gynecological exam, even with a good doctor or nurse at the helm. It's hard to describe the feeling of a PAP test as it removes cells for examination, but it is kind of like something has crawled way up inside of you and is brushing against a part of your anatomy that does not normally experience contact with such things. It is not painful, but startling. At least it's quick. The endometrial biopsy, on the other hand, requires a tube to go through the cervix, into the uterus and then a small instrument is slid through the tube to pinch off a section or two of the uterine lining which is, at that point, firmly attached. Things are not supposed to go into the cervix, other than microscopic sperm, of course. Things come out of the cervix. Trust me when I say the cervix does not enjoy being invaded in this way. The pinch of the tissue-taking is uncomfortable, but the whole procedure, maybe two minutes in duration, takes your breath away and leaves you feeling a little faint. The sensations are so foreign and unexpected. And then the cervix and uterus cramp afterward to express their feelings about the invasion. I went back to the office afterward, Advil on board. I just wanted a baby.

In my research, I had learned that DES was a synthetic estrogen that was developed in the 1930's. It was prescribed for women with a history of miscarriage and was thought to prevent loss of pregnancy. In one of the great pharmaceutical travesties of history, certain companies began aggressively marketing it as a prophylactic treatment to prevent miscarriage, even in women with no such history. Not surprisingly for the time, it had not been adequately tested. It was was routinely prescribed to pregnant women from approximately 1947 until 1971, when its use for that purpose was banned. It is still used to treat some cancers and possibly other things, but not in women of childbearing age. Since the formula was never patented, scores of pharmaceutical companies manufactured and sold it over varying periods of time and in different geographies.

DES caused signature injuries in the fetuses exposed to it. Females may have abnormally formed genitalia, either or both internal and external, or they may develop a very specific form of cancer. Infertility per se was not generally attributed to DES exposure, except as the malformed anatomy may contribute to it. There were some studies indicating a link to increased incidence of breast cancer. The plaintiffs in our litigation mostly claimed infertility, as they were past the age where the cancer, clear cell adenocarcinoma, would typically manifest. Our job as defense attorneys was to gather facts sufficient to determine first, if exposure to DES could be established and then, if each exposed plaintiff had "signature injuries" and infertility and finally, if so, whether the infertility could be attributed to other causes.

Soon I had a call from Dr. Bailey. She said I had a "luteal phase defect." I understood this to mean that I was not ovulating at the right time in my cycle. The remedy was to try Clomid for six months days or six cycles and then if we weren't successful, we'd try something else. She prescribed 150 milligrams, which I later learned is a pretty hefty dose to start with. I had to calendar my cycle and take the medication at a certain time for a specific number of days: 14, I think.  We also had the fun of charting our sex life. I followed doctors' orders pretty readily at that point, and without a thought, did as she said. Clomid works by stimulating the ovaries to release multiple eggs and the timing of the dosing determines when the eggs will be released - ideally at the time the uterus is ready to welcome them. The side effects are not pleasant: hot flashes, mood swings and the sensation of pulsating orbs the size of grapefruits in the abdomen. Ironically, these symptoms did not serve to increase my libido. Nonetheless we soldiered on because we both wanted a baby.

In the meantime, depositions of the DES plaintiffs had begun. The primary defendants in this litigation were Eli Lilly and Squibb. They hired high profile firms and "hosted" the depositions. They generally had their lawyers lead the questioning of the plaintiffs, with the other lawyers chiming in as needed. We filled the largest boardroom on the 49th floor of Key Tower with suits. There were nearly as many female attorneys in this crowd as there were male.

Preparation for these depositions was time-consuming. Unlike in asbestos litigation, where we usually had only a few pages of records, we often had 6 or 8 inches of medical records related to each plaintiff. Unless you read (and understood!) the contents, you would not know what questions to ask.  It was fascinating reading and I am an over-preparer by nature, so I was very familiar with the medical history of each woman as we proceeded. But these weren't just general medical histories: these were gynecological and obstetric medical histories. The most personal of personal information. At their depositions, each woman faced twenty or more suited lawyers who already knew all about her: her weight, how often she and her husband had sex, which sexually transmitted diseases she may have had. If she had had an abortion. The things you would tell your doctor if you wanted to have a baby.

180 days and six cycles later, I was not pregnant. Not even a little. I had started the habit of peeing on a stick at day 28 if I hadn't started bleeding yet, "just to make sure." Nope; never a second line; not even a hazy "maybe." Dr. Bailey informed me that it was Cleveland Clinic policy that only the doctors in the infertility department could do the more extensive testing and treatment that I would require. She referred me to  another physician whose name escapes me. She was young,  Indian and very pretty. And very, very cold. When I met with her, she was furious that Dr. Bailey had done as much as she had without referring me to the infertility group. She seemed to think that I was complicit in this breach of professional etiquette. I don't recall much of our first meeting, other than her insistence that Hombre appear for purposes of producing a "sample" and that I undergo another procedure called a hysterosalpingogram (HSG for short). I knew what this was, thanks to my recent research, and made the appointment without hesitation. After all, we just wanted a baby.

Hombre went down to the Clinic to do his duty one afternoon. He reported that he was handed a dog-eared copy of an old Hustler magazine and a cup and shown to a tiny room with a questionable lock on the door. He did his duty admirably, if the lab results are any indicator. Hardly the stuff of erotic fantasy, but then again, neither was the HSG.

An HSG is essentially an x-ray of the pelvis, with a dye shot up through the cervix, the uterus and through the fallopian tubes so that any obstructions or abnormalities could be detected. Dr. Chilly said it would be "mildly uncomfortable." Having survived the first endometrial biopsy, I was sure it couldn't be that bad. I was blissfully unaware of what lay in store.

After donning a hospital gown I was led to the radiology suite, which was the temperature of a walk-in meat locker. I was told to lie on the stainless steel table while the dye was injected. Then I was treated to several cushions under my tush (welcome warmth, indeed) while we waited for the dye to spread into my anatomy. Remember how the cervix wasn't so fond of intrusions? Well, six months later, it still wasn't. Neither were the other pieces and parts that came into contact with the dye. Nobody liked it. And I had to lie perfectly still. After what seemed like hours, the imaging was performed, but I still had to stay put until Dr. Chilly reviewed the pictures, just in case more were needed.

She came into the room for the first time that day, as I lay shivering on the table.

"Everything looks normal. I'll set you up for a series of three intra-uterine inseminations and 75 milligrams of Clomid for the next three months. See my scheduler before you leave."

She turned to leave.

Because of my research, I knew that what she planned to do was have Hombre "produce", inject the washed and condensed sperm into my uterus herself, while I took still more Clomid to time my ovulation to her schedule. If I weren't in the line of work I was currently in, I'd likely have had no idea what she was talking about.

"Wait. Dr. Chilly. I have a question. If everything looks normal, why do I have to have inseminations?"

She looked over her shoulder, not even turning fully around.

"Because that is our protocol. That is how we proceed here. If you want to be treated here. Our success rate is very high."

What a fucking bitch.

Intense cramps gripped me as the dye began to leak out, improbably cold.

A single tear ran down each side of my face, into my ears. A nurse appeared with a towel and helped me sit up.

"Are you okay? This test hurts like hell, doesn't it?"

And that's not all that hurts like hell.

I nodded, unable to speak.

"Here is a pad if you don't have one. You should take it easy the rest of the day and take some Advil or ibuprofen for the cramping. If you have any bleeding or a reaction to the dye, call right away, okay?"

She patted my shoulder.

I got up, shaking from the cold, and went to dress. Hombre was waiting for me.

"How'd it go?"

"It sucked. My tubes are fine, but she wants to put me back on Clomid and do IUI."

"I'll do what ever you want."

"Let's think it over. I really don't like that doctor. But the Clinic is supposed to be the best. I don't know what I want."

I had read some recent research linking Clomid to ovarian cancer. I didn't really want to take it unless it was absolutely necessary. I couldn't understand why, if my anatomy was normal, there was a need for IUI unless they just wanted the fees. None of it made any sense. And that doctor.

I'd read enough medical records and done enough research to know what lay ahead. If IUI with "own sperm" did not work, and I couldn't really understand why it would, when there were no physical issues preventing the magic from happening, then we were likely looking at in vitro: with its associated costs, pain, inconvenience and low overall success rate.

I was a pro at distracting myself with work when personal issues were just too heavy. We were well into spring and with it, two-a-day depositions. One of the lead firms had hired a young (supposed) hot-shot who was now leading many of the depositions. He was Malibu Ken-looking and about as bright. How this guy ended up where he landed, I have no idea. His skills were so poor, his questioning so random and ineffective, I had taken to sitting next to him and taking over immediately as soon as he finished (unless one of my equally over-prepared compadres did so), before the plaintiff was subjected to a roomful of lawyers asking onesie-twosie questions. I could cover everything pretty succinctly and often there were no other questions from the cabal. It seemed to work pretty well until one particular day.

Malibu Ken: "So, after your last appointment with Dr. _____, you were supposed to see him again in six weeks, isn't that right?"

Plaintiff: "Yes."

"It says right here in the records, 'Appointment cancelled.' Do you see that?"


"Now, if you were trying to get pregnant, why would you cancel the appointment?"

"Because I got my period."

"I don't understand."

"I was supposed to go back for a special pregnancy test, but I got my period."

"So you weren't pregnant?"


"So it was kind of like when you take your car to the mechanic and then the noise it was making totally disappears when you get there, huh?"

Her face melted. She looked down.

"Yeah. I guess," she mumbled.

"You'll have to speak up so the court reporter can get what you are saying."

Her attorney appeared to be napping.

I exchanged glances with several of the other defense attorneys.

I stood and put my hand on Malibu Ken's notes.

"We need to take a break, Mike," I spoke directly to the plaintiffs' attorney, "is that okay with you?"

"Sure. Whatever."

Malibu Ken looked confused.

"What are you doing?"

"Get out here."

I went into a nearby, small conference room, followed by a squadron of defense attorneys and Malibu Ken.

"What? What's wrong?"

I was on fire.

"I will explain this only once, you idiot. At no time is a woman's body like a car. Do you understand?  You will not talk to her like that. That was totally inappropriate."

His face reddened beneath the tan.

"I was just trying to add some humor to the situation."

"There is no humor in this situation. Someone else needs to finish the deposition after you apologize to that woman."

He stood up a little straighter. Technically, I suppose he "outranked" me. He was a more senior attorney at a prestigious firm, by whatever means he got there.

We glared at each other.

Another attorney spoke.

"I agree with Meg."

"So do I.

"So do I.'

And so on.

I exhaled.

Malibu Ken didn't attend any more depositions after that.

Wednesday, May 7, 2014

Some Clients

Some clients you never forget.

As a family law attorney, I was party to some of the most painful times in the lives of my clients. Times that brought out sides of themselves I'm sure they were not proud of. Some were remarkably centered and classy through it all, most others: not so much. There was an expected range of behavior from unreasonableness to psychosis and all manner of fluctuations in between.

And then there was Mrs. A.

I think she was in her late 40's when she first came to see me. She was petite and pretty and the mother of 9. Conservative and a bit prim. Sincerely, genuinely Christian in the best possible way. She had married her high school sweetheart soon after graduation and worked while having babies, in order to put him through undergraduate and masters degree programs. She hadn't worked outside the home since then.

Her husband had recently abandoned the family for another woman. He was also Christian, ostentatiously so. So much so, that he refused to file for divorce. Instead he tried to manipulate her into filing first by refusing to provide any financial support whatsoever to the family until she did. He told her he had already seen a lawyer and that was the way it had to be.

"He is very smart. He always gets his way," she said. "Always."

She was shaking when she told me about the situation and nauseated by the certainty that she would have to violate her religious convictions and her marriage vows in order to take care of her children. Groceries were low and there were cut-off notices from the utility companies.

During that first meeting, I got all the details about the marriage, their assets, debts, income and  children. All of the data I needed to get started, along with the backstory of their lives. She went through a box and a half of tissues during that hour.

When all of my questions had been answered, I asked her,

"How would it feel to give him a little kick in the nuts?"

She looked startled and then laughed. "Pretty good, I think."

"You don't have to file for divorce to get support from him."

"I don't?"

"Nope. We can file for a legal separation, which does not violate your vows. We can restrain all of his bank accounts and put the squeeze on him for change, which should get his attention. If you can stay here for about an hour so we can get the papers prepared and signed,  we can walk it through to the judge for signature today. How does that sound to you?"

She beamed.

"Really? We can do that?"

"We can."

She swallowed. "Let's do it, then."

While my secretary completed the various pleadings to be filed, Mrs. A and I talked. She loved that I was working while visibly pregnant. I reassured her that while I knew she did not want this divorce, I had a gut feeling that by the time it was all over, she would discover that she was stronger and smarter than she ever thought. I don't think she really believed me, but she nodded.

We walked the four blocks to the clerk of courts, filed our paperwork and then walked to the domestic relations court to get a judge's signature on the temporary restraining orders. I had them served the same day by a private process server.

The very next day, I had an irate phone call from his lawyer, sputtering that Mr. A "could not function." We had tied up all of his accounts.

My heart bled for him.

I explained that we would be happy to release the restraining orders once we had an agreed support order in place along with a lump-sum payment to take care of current outstanding bills. In fact, I had an agreed judgment entry already drafted that I could fax right over.

After much back and forth, the attorneys worked it out.

When I called Mrs. A to let her know I had a check for her she was silent. Then, after a long pause she said,

"You did it. You outfoxed him. I never thought it could be done."

The remainder of the case dragged out over many months, but as clients go, Mrs. A was very low maintenance. She was not one of the "Monday Morning Tattlers," who called with a full report of each weekend's goings-on. She never quibbled about his time with the children or complained that he picked them up or returned them late. I learned more about his bad behavior from his own attorney than from her.

Instead, I'd get voicemails, left after hours so she wouldn't incur the cost of a conversation with me:

"I got a job!"

"I found a house we can rent!"

"My boss is giving me a promotion, can you believe it?"

When her case was finally over, the divorce granted upon his request and all of the final orders in place, she hugged me.

"You know what you told me at that first meeting? About how I would be glad this happened when it was all said and done? You were right. I didn't want this. I still don't, but I know I am strong enough to handle anything now. I am doing things I never, ever thought I could. Thank you."

Thoroughly humbled, I just nodded.

Some clients make you a better lawyer and others make you a better person.

It goes without saying that I have altered facts and the details of conversations to protect my client's confidences.