The Justice Department is conducting an investigation to determine whether the A. H. Robins Co. criminally obstructed justice in the course of defending against lawsuits brought by women who said they were harmed by the Dalkon Shield intrauterine contraceptive device, sources said.
Several sources outside the government said the investigation began last year under the supervision of Julian S. Greenspun, deputy chief for litigation in the Justice Department's criminal division.
Greenspun, who recently left the Justice Department to join a Washington law firm, said in a phone interview, "I can't comment, but sooner or later, the people who were responsible for what happened to the women who were injured by the Dalkon Shield are going to get what they deserve. Let's leave it at that."
The Justice Department declined comment, as did the official who reportedly is Greenspun's successor in supervising the investigation, Guy L. Goodwin, special assistant for litigation in the criminal division.
John D. Taylor, Robins' vice president for public affairs, asked if the company knew of a Justice Department investigation, replied, "We're not aware of it." The company's attorneys checked into it and did not turn up any indication of such an investigation, Taylor added. "Everybody who's checked it says there's no such thing."
The investigation is unrelated to a pending civil case in U.S. District Court in Richmond in which the government has asked Judge Robert R. Merhige Jr. to hold Robins in contempt for spending about $7 million without court approval. The spending violated a consent order Robins signed in August after it filed for voluntary bankruptcy on the ground that the burden of the thousands of Dalkon Shield claims made a financial reorganization essential.
The sources who described the investigation spoke only on condition that they not be named.
During the course of Dalkon Shield litigation, there have been several allegations that Robins provided false testimony or withheld information from plaintiffs. Robins has consistently denied the allegations, and it is not clear what role they might have in the investigation.
On Jan. 21, 1985, the 11th U.S. Circuit Court of Appeals in Miami ruled that a Robins expert witness, Dr. Louis G. Keith, a Northwestern University professor of obstetrics and gynecology, gave "false testimony" at a 1983 trial in Tampa, Fla. Keith testified falsely with "complicity of counsel" for Robins, a unanimous three-judge panel said.
Keith's attorney said Keith "did not lie" and that the panel did "not take into account the nuances of language used by lawyers and Dr. Keith." Robins, which has denied wrongdoing, has said it had paid Keith $277,092 in witness and consultation fees by April 1985.
An FBI spokesman said a few weeks after the appeals court ruling, "We are conducting an investigation." John M. Fitzgibbons, deputy chief of the criminal division in the U.S. Attorney's office in Tampa, said the same day that he was "well aware of the 11th Circuit's rather extraordinary opinion," but declined to confirm or deny whether his office had requested the Keith inquiry.
Since then, Fitzgibbons has declined to accept phone calls about the Keith matter. One source said he believed the Department of Justice, as part of its broader investigation, is looking into the episode.
On Feb. 21, 1985, court-appointed special masters Thomas C. Bartsh and Peter N. Thompson made a report on their investigation into Robins' compliance with a February 1984 order by Miles W. Lord, then the chief U.S. district judge for Minnesota, to produce pretrial documents in certain Dalkon Shield lawsuits.
Bartsh and Thompson concluded in the report to the court "that plaintiffs have established a strong prima facie [on the face of it] case that A. H. Robins Inc. has, with the knowledge of in-house counsel, engaged in an ongoing fraud by knowingly misrepresenting the nature, quality, safety and efficacy of the Dalkon Shield. The ongoing fraud has also involved the destruction or withholding of relevant evidence."
The report cited sworn statements made in mid-1984 testimony by Roger L. Tuttle, a former in-house Robins lawyer who had defended early Dalkon Shield lawsuits.
Tuttle testified that in 1975, after a Kansas jury had made the first award of punitive damages to a Shield victim, William A. Forrest Jr., a company vice president and then-general counsel, ordered him to arrange the destruction of hundreds of "troublesome" documents.
Secretly, however, Tuttle testified, he had saved some sensitive documents, and one of them, the masters reported, "substantially corroborates the essence of his story that Robins lawyers have pulled documents from files so that they would not be produced in litigation."
Forrest and the company have denied that any such destruction order was issued.
In May 1985, in Wichita, Kan., U.S. District Judge Frank G. Theis appointed special masters to investigate whether, in an effort to conceal crime or fraud, Robins attorneys improperly invoked legal privileges.