Before His Cancer Ordeal, Lawyer Craig Diamond Defended Des-Makers: Now He's Suing His Former Clients
Craig, who earned his law degree at the University of California Hastings College of Law in San Francisco, was an able advocate. Yet, confident as he appeared in the courtroom, he was plagued by a growing worry. In October 1980, while he was involved with DES pretrial hearings, he was troubled by a strange tenderness in his breasts; the aspirins suggested by his doctor were having no effect. The following month he was hospitalized for tests; the results were devastating. A biopsy indicated that Craig was suffering from not one but four different types of testicular cancer, and doctors performed surgery to remove his diseased right testicle. Craig later asked his mother the critical question: Had she taken DES when she was pregnant with him? She had, although not while carrying her first child, Ilene.
Before he became a possible victim, Craig Diamond took a detached view of the DES calamity. Over and over, he had heard the stories of women whose cancer operations in many cases left them unable to bear children. "I couldn't relate to what these women had gone through," he admits. "It was hard to know how they felt, how uncomfortable they really were, when I had never been sick." Quite suddenly, he did know. "I had to consider, am I going to die? There was no guarantee I was going to make it to 40."
Surgeons advised Craig that he had to have the lymph nodes removed from his abdomen to establish the extent of the disease and prevent its spread. The five-hour lymphadenectomy left Craig with a huge scar and cause for elation. There was no further trace of cancer; a recurrence of the disease was unlikely.
Hurting and weak as a baby, Craig moved in with his married sister, Ilene Adelstein, 33, who patiently nursed him back to health. The long convalescence gave him time to reassess his future—a process as radical in its way as the surgery he had undergone. Believing that he could never again handle the stresses of a big-city law firm, Diamond decided to advance his retirement dream of practicing as a country lawyer. He resigned from Haight, Dickson, Brown & Bonesteel and hung his shingle in Grass Valley, Calif. (pop. 7,500), a former mining colony in the Sierra Nevada foothills.
Diamond came to his next decision even more painfully. In October 1981 he filed suit against his former clients—the Upjohn Company and E.R. Squibb & Sons Inc.—along with 35 other U.S. pharmaceutical companies that had marketed DES from 1941 to 1971. "It's ironic I'm in this situation," Diamond concedes, "but I've been damaged by the product. I believe the DES manufacturers should have warned the consumer in big red neon, flashing lights that they didn't know how DES would affect someone in the future." Diamond's former colleagues dispute that contention. Says Haight, Dickson partner Robert Dickson: "New data show there isn't such a disparity between cancer in DES daughters and non-DES daughters. We strongly believe that DES does not cause cancer."
The ironies of Diamond's turnabout heightened when he chose a lawyer to handle his case; he picked his former courtroom adversary and DES litigator, Roman Silberfeld. "Craig was a competent attorney who did a fine job for his client," Silberfeld recalls. "He was so young and vital and had everything going for him. To find out he was a DES son was a real shock."
Craig Diamond's mother, Rhoda, 60, is one among three to six million American women treated with DES, which had been thought capable of reducing the risk of miscarriage. By 1971 evidence linked the drug with vaginal cancer in the daughters of some women who had taken it. That year the U.S. Food and Drug Administration required warning on DES use by pregnant women, and since then makers of the drug have been served with some 500 lawsuits, with damage claims in excess of $5 billion. The manufacturers have settled dozens of suits out of court. But in the fewer than 20 cases decided by trial, verdicts have gone both ways. The highest award so far is $1.75 million. Some cases were dismissed because the plaintiffs were unable to identify the manufacturer of the DES taken by their mothers. But in 1979 a New York State Supreme Court jury found that a plaintiff need not prove which of DES' more than 100 brand names was involved.
Diamond hopes to take advantage of that legal precedent. The case of Diamond vs. every major U.S. drug company that produced DES is one of the first to be brought by the son of a DES user. Says Silberfeld, who represents seven female DES clients in addition to Craig Diamond, "In 1983 DES sons are at the same place as DES daughters were in 1973." To be sure, there is as yet no hard evidence that DES causes testicular cancer, but DES sons do have a higher incidence of genital abnormalities, which may possibly increase the risk of cancer. At New England Medical Center in Boston, scientists are compiling a list of DES sons and investigating whether there may be an added cancer risk. Urologist Dr. David Mitcheson says, "We don't want to create a mass panic among DES males. Right now they shouldn't be more worried than other men."
Though his case may not be heard until 1986, Diamond is bracing for the eventual courtroom collision. "The drug companies are going at it with everything they've got," says Silberfeld. "They are far from quitting." These costly legal maneuvers infuriate DES victims and the nationwide consumer group DES Action. They say the money could be better used for the screening and treatment of related diseases. Craig Diamond, however, is unsympathetic. He believes that drug companies are exercising their legal rights, and he has no remorse about having helped them. "I had a responsibility to my client," he explains. "I don't feel animosity toward anyone who meets that responsibility." Nor will he join any group onslaught against the drug companies themselves. "They've done a lot to improve the quality of our lives. Someday I may need them to survive. I may need chemotherapy."
Diamond is rebuilding his life and his profession as a small-town lawyer. Since they married last year, Craig and his attorney wife, Nanci, 32, have found tranquillity in a comfortable house overlooking Grass Valley. Fear is an unwelcome house guest, as when Craig comes down with the slightest cold or flu. They observe their 3-month-old daughter, Lacee, and wonder whether someday she will face a similar ordeal. Science as yet has no answer, but the Diamonds often ask themselves this: If a drug taken by a mother can apparently afflict her son, what of that man's daughter?