A bitter dispute over whether a former A.H. Robins Co. executive ordered the destruction of documents relating to the safety of the Dalkon Shield has been revived by new evidence obtained by the Justice Department, it was learned yesterday.
Former Robins senior attorney Roger L. Tuttle charged in surprise testimony in the summer of 1984 that his boss, general counsel William A. Forrest Jr., had ordered him to arrange the destruction. Forrest denied the charge under oath.
One of the two pieces of new evidence is the handwritten notes on a meeting between Forrest and executives of Aetna Life & Casualty Co. Aetna had insured the intrauterine contraceptive device, which 2.2 million American women used before Robins removed it from the U.S. market in mid-1974.
The trigger for the meeting -- held on Feb. 20, 1975, at Aetna headquarters in Hartford, Conn. -- was a Kansas jury's award of punitive damages to a Dalkon Shield plaintiff a few days earlier. A highly sensitive Robins memo about the Dalkon Shield -- obtained from the company in pretrial proceedings -- was pivotal to the verdict, which was the first of its kind.
Aetna official J.E. Fazio made more than two pages of handwritten notes on Forrest's comments on why the Kansas case was lost, and on how Robins and Aetna could better defend themselves against such litigation. Toward the end, Fazio wrote: "Purging files to be sure that for future they will not be as vulnerable."
The second piece of evidence is a November 1984 letter in which Richmond attorney William R. Cogar, who had been asked by Robins to investigate Tuttle's document-destruction charge, protested to an Aetna lawyer the insurer's claim that it would be "inappropriate" to check the accuracy of Fazio's statement by seeking the recollections of the other Aetna officials at the meeting.
"I have not drawn any conclusions regarding Mr. Tuttle's allegations," Cogar wrote. "However, I am concerned by a literal reading of the language employed by Mr. Fazio, as you should be, also."
Yesterday, Tuttle said in Tulsa, "These documents speak for themselves, and totally vindicate me." He denounced a May 1985 allegation by Cogar associate James S. Crockett Jr. that Tuttle had falsified a memo he had used to back up the document-destruction claim.
"It is incredible that Robins and its lawyers, and insurance company, would go to the lengths they have to deliberately defame me while all the time knowing I had told the truth," Tuttle said.
Forrest and Crockett denied that the documents vindicate Tuttle. Aetna declined to comment on the ground that it is a defendant in pending Dalkon Shield litigation.
"I deny any statement referring to any purge or purging of documents," Forrest said. "It didn't happen." All he had done, he said, was to order "a complete review" of Robins' hundreds of files in order to be better prepared for future cases. Besides, he added in a telephone interview, it would have been "ludicrous," in a meeting that "could determine whether Robins would or would not have insurance," for him to have told a half-dozen Aetna executives that he would purge the files.
Forrest took early retirement in March 1986, seven months after the Dalkon Shield litigation lawsuits led Robins to file for Chapter 11 protection.
Crockett, in a separate interview, said that Fazio had "misused" the word "purging" to describe a simple intent to organize Robins' document files coherently, that "no one else's notes" on the February 1975 meeting reflect his interpretation of what Forrest had said about the files. He said he stands by his May 1985 attack on Tuttle.
As reported earlier, the Justice Department launched a continuing investigation in 1985 to determine whether Robins criminally obstructed justice in the course of defending itself against thousands of Dalkon Shield lawsuits. Yesterday, it was learned that the Fazio notes and the Cogar letter have been acquired by Guy L. Goodwin, the criminal division attorney leading the probe.
Tuttle is among the witnesses who have testified before a grand jury in Wichita, Kan.