Limp Litigation

So-called consumer litigators, like most car manufacturers, have developed distinct and lucrative product lines. Surfing the Web, one can find a cyberlaw page that lists lawsuit lines like Baskin & Robbins lists its 31 flavors: Mass Torts, Asbestos, Silicone Breast Implants, Agent Orange, Dalkon Shield, Bjork-Shirley Heart Valves, Tobacco, and Medical Malpractice. Soon there may be another addition to the menu: Penile Implants.

"Penile Implant Failures: You May Be Entitled to Compensation…Free Consultation-- Strictest Confidence," blared an ad in the February 14 San Francisco Chronicle. There was, of course, an 800 number to attorney Lewis Saul's office in Washington, D.C.

Between 10,000-15,000 penile implants were inserted last year, usually into men who had problems performing sexually due to vascular problems or diabetes. One type of implant is a multi-part device, consisting of a tube, a reservoir of saline, and a pump to force the saline into the tube. Saul claims these parts sometimes leak, leading to medical problems for his more than 300 clients. He says he has cases pending against two manufacturers: American Medical Device Systems and Mentor Corp.

Douglas Altschuler, Mentor's chief counsel, knows of Saul but says the company isn't being sued by him at the moment. Altschuler says Saul has tried to get money from Mentor in the past but has never been successful.

Still, penile implants may be too compelling a target for trial lawyers to pass up. Considering that most men who receive them are suffering from some vascular failure, they are bound to have some health problems in the future which lawyers will try to link to the implant.

"If you put a new transmission in a 20-year-old car, it is not the transmission's fault if the engine fails," reasons Altschuler. So far, the courts have agreed. But rest assured, Saul has assembled expert witnesses to testify otherwise.