© NLP IP Company, Thursday, July 1, 1999
Advice to Breast Implant Plaintiffs: Take the Money
By Daniel Wise
New York Law Journal
NEW YORK -- New York lawyers representing plaintiffs in breast
implant litigation gave no more than a lukewarm endorsement to a
$3.2 billion settlement plan currently under review by a bankruptcy
judge in Bay City, Mich.
U.S. Bankruptcy Judge Arthur Spector began a hearing Monday to weigh
the fairness of a plan formulated by Dow Corning Corp., the dominant
maker of silicone breast implants. The hearing is expected to proceed,
with interruptions, until the end of July.
The plan has already been accepted by a 6-2 vote of the tort
claimants' committee appointed by Judge Spector. In addition, an
overwhelming majority of the Dow Corning claimants -- nearly 96
percent of 112,774 women -- have voted to approve the plan.
The Dow Corning proposal provides a maximum payment of $275,000 to
the most seriously injured women, those totally disabled by a
systemic disease such as lupus. It would offer a minimum of $20,000,
and possibly an additional $5,000 if the settlement fund is large
enough, to women whose implants rupture, and $5,000 to those women
who have had their implants removed.
Dawn DeWeil, who heads up breast implant litigation at New York's
Schneider, Kleinick, Weitz, Damashek & Shoot, said her firm is
advising its clients to "get some money sooner, rather than,
perhaps, no money later. They have been waiting long enough --
seven years in some cases -- and the science is very uncertain."
Those who want to litigate, she added, can do so if they are willing to
go to Michigan to press their claims.
Because the settlement only sets aside $400 million for litigated
claims, DeWeil and others said that many claimants would be forced
to settle their claims out of fear that there would not be enough
funds to satisfy a judgment even if they prevailed before a jury.
Not only is the $400 million fund inadequate, but it must cover all
defense costs, added Sybil Shainwald, who is one of nine members of
the tort claimants' committee.
Judge Spector has recognized Shainwald, who heads a four-lawyer
office in New York City, as the representative of an estimated 23,000
foreign claimants. Shainwald was one of two dissenters on the
claimants' committee who opposed the accord. She has also filed an
objection to the plan's treatment of foreign claimants. There is no
justification for cutting the payment to foreign claimants by as much as
65 percent in some countries such as Israel and the Czech Republic,
Leroy Hersh, a partner in San Francisco's Hersh & Hersh who filed
the first case against Dow Corning back in the early '80s, said
Wednesday that he's aware of many lawyers around the country
who are urging clients not to go along with the settlement because they
would get so little money after years of litigation. Hersh said his firm has
taken a different approach.
"We've neither urged [our clients] to accept or reject," says Hersh,
whose firm won more than $1.7 million in its groundbreaking suit
against Dow Corning. "We've told them they have to make up their own
minds. Most women are worn out [from the long litigation]."
Denise Dunleavy, whose firm, Weitz & Luxenberg, represents 1,760
clients with Dow Corning claims, said her firm has also objected to
the $400 million litigation fund because it does not set aside money
for potential claims of the children of women who had breast implants.
There is some anecdotal evidence, she said, of esophogeal problems,
which could lead to cancer, among the children of women with implants.
Dunleavy said that her firm is recommending that clients with systemic
illnesses accept the settlement because of the current weakness in the
scientific evidence. On the other hand, she said, clients with localized
injuries may get more from juries than the $25,000 provided in the
settlement for cases of serious disfigurement.
San Jose lawyer Salvador Liccardo said Wednesday that women
might be wise to bail out of the bankruptcy settlement if they live in
states that have kept Dow Chemical Co. -- one of Dow Corning's parent
corporations -- as a deep-pocket defendant.
"Dow Chemical was let out on summary judgment in California, but
there are a lot of states, like Nevada, where Dow Chemical is still
in," the Liccardo, Rossi, Sturges & McNeil partner said. "And where
Dow Chemical is still in, I would recommend against the bankruptcy
The settlement plan under review in Michigan would resolve claims
that silicone from breast implants was responsible for a number of
serious systemic disorders, including scleroderma and lupus. Women
have also lodged claims for serious scarring and disfigurement when
silicone migrated from their implants and collected in their body
The women's claims that ruptured or leaking implants have caused
serious diseases have been substantially undermined by scientific
articles released in the past several months.
A report prepared by a panel appointed by the National Academy of
Sciences at the request of Congress, and issued last week, concluded
that no link has been demonstrated between silicone implants and
systemic diseases. A similar conclusion was reached in November
by a panel of experts appointed by U.S. Judge Sam Pointer of the
Northern District of Alabama, who has handled the pretrial phase of all
federal implant litigation nationwide.
San Francisco's Hersh lashed out at the recent National
Academy study, saying it was based on studies funded
by the breast implant manufacturors.
"The National Academy of Sciences did not do an
independantstudy," he said. "What [it] did was take
studies already in existence and re-examined them.
They based [their findings] on the same
Liccardo, of San Jose, said plaintiffs lawyers are eagerly awaiting
a study by the National Institutes of Health, which he called "a true
study and probably the first study that's not been tainted by the industry.
"The little birdies," he added, "are saying that study will show
some connection [between implants and women's health problems]."
Weitz & Luxenberg's Dunleavy also criticized the bankruptcy
settlement's release of the two companies that formed Dow Corning --
Dow Chemical Corp. and Corning Corp. She pointed out that Dow had
successfully litigated in New York and several other states that it
could not be held responsible for breast implant injuries because it
had no involvement with the implant business.
She asserted that it is highly inconsistent for the parent Dow
Chemical to argue now that it does have a close enough tie with its
subsidiary Dow Corning to warrant the parent's protection from tort
claims in the bankruptcy.
Aside from the Dow Corning claimants, most breast implant litigation
in the country has been resolved. In 1995, Judge Pointer approved an
offer, similar to the Dow Corning settlement, made by the three
largest solvent manufacturers of breast implants: Bristol-Myers
Squibb Co., Baxter Healthcare and Minnesota, Mining and
Manufacturing. To date, 81,000 women have received payment under
that plan, and at least 10,000 have elected to pursue their own
cases in court, according to a Web site maintained by Judge Pointer.
In recent months, the three manufacturers have put on a big push to
settle cases, and at most several thousand are still pending,
Daniel Wise is a senior writer at the New York Law Journal, an
American Lawyer Media affiliate. Recorder associate editor Mike
McKee contributed to this story.