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$3.7-Billion Breast Implant Settlement Wins Tentative OK : Courts: Federal judge sets deadlines for filing claims under record-breaking, class-action accord. It would compensate thousands of women who claim injury.

April 05, 1994|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

A record-breaking $3.75-billion class-action breast implant settlement that could provide compensation to thousands of women nationwide, including many in California, cleared its first major hurdle Monday as a federal judge tentatively approved the deal and set deadlines for filing claims.

U.S. District Judge Sam C. Pointer Jr. of Birmingham, Ala., also announced that he was taking two steps that should make the settlement more appealing to women who allege that they were injured by the implants.

Pointer appointed Ann T. Cochran of Houston, a state court judge, to serve as the claims administrator for the settlement fund. Cochran has been the coordinating judge for hundreds of breast implant cases pending in Texas. She was praised as someone "who understands the real issues the women have to deal with" by Sybil N. Goldrich of Beverly Hills, co-founder of the Command Trust Network, a nationwide information clearinghouse for breast implant recipients.

And in a strong effort to persuade women that the settlement fund will not be drained by excessive legal fees and other costs, Pointer decreed that at least 75% of the money will go to women with implants.

The judge's order on money issues puts teeth into sentiments he expressed at a March 11 hearing, when he said it was his goal to ensure that no more than 25% of the settlement pot goes for legal fees and other costs.

Representatives of several implant support groups, including some that have been critical of the settlement, praised Pointer's action.

Ralph I. Knowles Jr., an Atlanta attorney who was co-chairman of the National Breast Implant Plaintiffs' Coalition, called the judge's action unusual but wise because in cases like this there frequently is speculation that lawyers will be paid excessively.

A 75% share "is a good return if you look comparatively" at what happened in other mass tort cases, Knowles said.

About 1 million women received silicone gel breast implants in this country between 1962 and 1992, when the federal Food and Drug Administration restricted their use. Many of the thousands of lawsuits filed nationwide maintain that silicone leaked out of the implant pouch and migrated throughout women's bodies, causing numerous diseases.

The settlement contains a lengthy list of injuries for which women can be compensated, depending on their age and the severity of their injury.

Projected compensation, after reduction for administrative costs and legal fees, ranges from $105,000 to $1.4 million per person, according to the settlement notice.

Those amounts could be increased if more companies join the settlement, whose participants now include Dow Corning, Baxter Healthcare, Bristol-Myers Squibb and some smaller companies. Negotiations between 3M, Union Carbide and other companies, which could add up to $1 billion to the settlement fund, are scheduled to resume today.

"The settlement is much more desirable" for many reasons if 3M and the other companies participate, said Alan B. Morrison, director of Ralph Nader's Public Citizen Litigation Group, who earlier indicated that he might challenge the deal because it was inadequately funded and did not cover all the appropriate diseases.

"If 3M is not in the deal, there will be a lot more proof required in what was supposed to be a painless administrative procedure," because women will have to show that their implants came from one of the settling companies, not 3M, Morrison said. He also expressed concern about whether the women will have adequate time to make a decision on whether to join the settlement or opt out.

Attorney John Michael Restaino, whose law firm represents 464 women, most from Orange County, in silicone breast implant cases, said the June 1 deadline doesn't give women enough time to consult with lawyers and physicians. He said the firm's lawyers currently are "putting in 16-hour days" trying to advise clients on the settlement.

"At this point in time it is getting more difficult (for the women) to find doctors or lawyers to handle their cases," Restaino said.

Although many of the diseases that are reimbursable in the settlement can be most readily diagnosed by rheumatologists, "rheumatologists experienced with silicone gel implant problems are booked" because of the June 1 deadline, Restaino said. "If you call today they won't see you until maybe mid-June."

A massive public information campaign on the settlement--including television, radio and newspaper advertisements--is scheduled to start April 18. Pointer has set up a toll-free number, (800) 887-6828, that women can call if they want information mailed to them.

In addition to a "current disease fund," which provides compensation for women who are ill, the settlement provides money for medical monitoring and removal of implants.

The settlement does not require proof that a covered disease was caused by a breast implant.

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