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Roberta Walburn on Miles Lord the Maverick Judge Who Brought Corporate America to Justice

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Miles Lord passed away in December 2016. He was 97 years.

For those young lawyers today wandering the corporate wilderness in search of meaning, they might want to pick of a new biography of the man and judge – Miles Lord: The Maverick Judge Who Brought Corporate America to Justice by Roberta Walburn (University of Minnesota Press, November 2017).

[Last week, Minnesota Public Television aired a one hour documentary — Miles Lord: Minnesota’s Maverick Judge — based on the book.]

Judge Lord was known for confronting corporate executives face to face for their corporate crimes and other wrongdoing – most notably the executives of A.H. Robins Company, the maker of the Dalkon Shield, and Reserve Mining, the company that dumped 67,000 tons of waste tailings a day into Lake Superior for more than a decade.

“I am not anti-corporation, but I am anti-hoodlum, anti-thug, anti-bank robber and anti-wrongdoers,” Judge Lord said. “Some of these wolves wear corporate clothing.”

Walburn graduated from the University of Minnesota Law School in 1983 and went on to clerk for Judge Lord. It was the year that Judge Lord was confronting his biggest case – the tort litigation against A.H. Robins Company, the maker of the Dalkon Shield intrauterine device.

“As a boy growing up on the Iron Range, Miles Lord was struck by the sermons he heard in church,” Walburn told Corporate Crime Reporter in an interview last week. “As a judge, he would often sound more like a preacher than like a judge. He believed in the goodness of people, but that good people did bad things if they were in a corporation where the pressures were on them to sublimate their individual responsibility to the corporate entity – a corporate entity that had no heart, no soul and no conscience. He believed that if he could break down the corporate walls and talk person to person to the corporate executives that he could convince them to change their ways. He was always trying that.”

“One of the speeches he gave was to the Minnesota Council of Churches in the early 1980s. He spoke about this. He said that many people denounced crime in the streets, but few examine crime in the skyscrapers.”

“The Dalkon Shield was an IUD sold in the early 1970s by the A.H. Robins Company of Richmond, Virginia. The company was a Fortune 500 company at the time. In the early 1970s, the Dalkon Shield became the best selling IUD in the country with 80 percent of the market. Millions of the Dalkon Shield were sold in 80 countries around the world.”

“But despite its widespread use and popularity, it had a deadly flaw. It had a multifilament tail string that could wick bacteria up into the uterus causing horrendous infections in tens of thousands of women. Many women lost their fertility. Some women died.”

“The litigation started in the early 1970s. It had been going for more than a decade, when in 1983, right when my clerkship was starting with Judge Lord, he took on his first Dalkon Shield case. It was the judge’s last big case on the bench. He would retire at age 66, shortly after the A.H. Robins Company declared bankruptcy.”

“He had twenty-one Dalkon Shield cases assigned to him. And one of the ways he broke the cases open was to reopen the discovery. He allowed the plaintiffs’ attorneys to take the depositions of the highest corporate officers of the A.H. Robins Company. And he reopened the document discovery. And the main issue there was secret studies of the tail strings that the company or its lawyers had conducted that reportedly showed bacterial migration up the string.”

“And as the pressure to produce the documents built and built, the company was serially settling the cases in front of the judge. When the last of the cases was about to settle, the judge said he wanted one final settlement hearing. And he requested that three top officers of the company appear before him in court. He wanted again to talk to them person to person, to plead with them to recall the device, even though it was no longer being sold, it was still being worn by thousands of women, and he wanted the company to compensate the women who had been injured.”

“When they came to his courtroom, he delivered a scathing speech to them. That speech ended up going viral, as we would say today. It was reprinted in newspapers and magazines all across the country. It was reprinted in the Congressional Record. A.H. Robins in turn filed judicial misconduct charges against the judge based upon that speech.”

There was a Committee of Inquiry pulled together by the Eighth Circuit. They brought disciplinary charges against Judge Lord. They found that he was in fact biased. But the judge felt that everything he said was true. What was the sanction?

“Not only did the judge say that everything was true, but it was based on the record in front of him. Even though he had presided for only 90 days, he had been extraordinarily active, even traveling to Richmond to supervise some of the depositions. What he said in the speech was based on the record.”

“Even though the company filed judicial misconduct charges against him, the company did not contest the accuracy of anything in the speech. The company said they were denied due process, but didn’t contest the accuracy.”

“The Eighth Circuit held a two day hearing – open to the public at Judge Lord’s insistence. That hearing ended up backfiring on the A.H. Robins Company. The speech galvanized attorneys and other judges around the country to go after what they were now calling Judge Lord’s docket.”

“In the end, the Eighth Circuit dismissed the misconduct charges, but expunged the speech from the record of the case, even though by that time, the speech had become famous across the country. It was published in newspapers across the country.”

There was no finding of misconduct?

“Correct. The judge had signed the final settlement agreement. The Eighth Circuit struck the judge’s signature from the settlement document. But by this time, other judges around the country had issued virtually identical orders for the production of the documents.”

One of the highlights of the book was the testimony of Roger Tuttle. Who is Roger Tuttle?

“Roger Tuttle was an in house lawyer for the A.H. Robins Company. He was in charge of the Dalkon Shield litigation in the early years of the litigation in the 1970s. He left the company in the mid-1970s and went to teach law school in Oklahoma.”

“He was a born again Christian. He remained on the sidelines for about a decade. When he read Judge Lord’s speech to the three A.H. Robins executives, it gave him the courage to come forward. He eventually agreed to a deposition that was taken by Mike Ciresi in Minneapolis. And in the course of that deposition, Roger Tuttle testified that when he was at the company, he was ordered to and did destroy documents from the files of the top ranking officials at the A.H. Robins Company. He had instructed some people to gather the documents and they were burned in a furnace that was used to otherwise destroy bad product. That testimony was sensational. It drew national headlines. And it was the final straw for the A.H. Robins Company.”

“Within a year the company filed for bankruptcy. And in the end, about 200,000 women received about $3 billion in compensation. But again, the litigation and the bankruptcy proceedings all told took close to thirty years.”

What was Roger Tuttle’s work at the time he testified?

“He was a professor at Oral Roberts University Law School in Tulsa, Oklahoma.”

Was there ever a criminal investigation or prosecution of A.H. Robins?

“There was a criminal grand jury convened. It operated for about five years and no charges were ever brought and there was no explanation. There were some news reports about the grand jury. But that is all that I was able to find.”

The documents that Tuttle destroyed incriminated the top executives. But did he say what was in the documents?

“He described the documents as showing the knowledge of the top executives about the Dalkon Shield. He didn’t testify in detail about the documents, but he saved a handful of them in the basement of his house. And he did produce some of those at his deposition.”

“The Dalkon Shield had copper in it. And if the copper was in the device to affect the efficacy of the device, it would have been subject to regulation by the Food and Drug Administration as a drug and subject to pre-market testing. This document showed that the copper did in fact have an efficacy component, contrary to what the company told the FDA. And special masters working on the case said that document lent a lot of credence to Roger Tuttle’s testimony.”

Was there any judge in the United States like Judge Miles Lord?

“Not that I know of. He took a boxer’s mentality with him throughout his life. He has that aggressive fighter’s instinct. If you are knocked down, you get back up and you keep fighting. He saw fighting as a symbol of how he lived his entire life.”

He was a colleague with the famous Democratic politicians from the state, including Hubert Humphrey, Eugene McCarthy and Walter Mondale.

“It was quite a collection of young men who all came together in their early adulthood in the 1940s in Minneapolis.”

Could Miles Lord have just as easily gone into politics like Humphrey and McCarthy and Mondale?

“Miles was a natural politician. He loved people. In the book, I focus on the relationship between Miles and Humphrey and McCarthy. And it culminated in many respects in the 1968 presidential campaign. Miles loved Hubert. He considered Hubert a brother. He was also very close to Gene McCarthy. Gene McCarthy didn’t have a lot of close friends, especially in politics or public life. Miles was good friends with both, but he was much more of a personality type like Hubert. He loved kissing babies. He loved making speeches to the crowd. Whereas Gene McCarthy was more of a loner and more reserved.”

“Miles had his heart set on being a federal judge from the time he graduated from law school. He did love politics though. There is no question that he could have gone very far in politics. But his wife was saying – I don’t want you in politics.”

“As a federal judge, he had the power of one. He would have been great at getting elected and being a firebrand. But I’m not sure he would have been able to form coalitions and make the compromises you would have had to make in Washington.”

More articles by:

Russell Mokhiber is the editor of the Corporate Crime Reporter..

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