Tentative Breast-Implant Pact Reached - Chicago Daily Law Bulletin - October 4, 1993

By: David Bailey
Chicago Daily Law Bulletin
October 4, 1993

Manufacturers of breast implants and lawyers for plaintiffs have reached an agreement in principle for a potential multibillion-dollar global settlement of all breast-implant litigation.

All told, the federal court proposal could be worth $4.75 billion for current and future claims against manufacturers of the implants, according to Chicago attorney Kenneth B. Moll, who has been observing the federal activities on behalf of several hundred clients who are making breast implant claims.

The proposed settlement is expected to be submitted to the federal judge in Alabama by the end of October, and a final settlement agreement could be reached by January, at which point advertising of the settlement would begin, Moll said.

The proposal calls for manufacturers to pay $800 million into a series of expense- reimbursement funds, $1.5 billion for current claims and up to $2.45 billion for claims brought over the next 30 years, according to a preliminary draft.

Each woman suffering from a specific list of diseases related to breast implants would receive from $200,000 to $2 million, depending on the disease, its severity and her age, Moll said.

Overall, the settlement would cover claims against manufacturers and suppliers of implants consisting of silicone, silicone gel and polyurethane in a casing made from silicone, as well as certain product-liability claims against physicians and hospitals.

If the parties take the next step and convert the statement of principles to a proposed settlement, the agreement would be submitted to the U.S. District Court for the Northern District of Alabama for preliminary and final approval, according to the statement of principles.

Under the proposal, all federal and state claims would be asserted in an opt-out class action, including those of implant recipients, recipients' children born as of the date of entry of the final judgement, claims by recipients' estates and derivative claims of survivors.

Five designated settlement funds worth $800 million would cover: initial claims for medical diagnostic and evaluation expenses; explanation; ruptures; recipient compensation, and reserves. Within five days of the preliminary settlement approval, manufacturers would deposit $100 million in an interest-bearing escrow account, with the remaining $700 million deposited within five days of the final order on each fund.

The 30-year disease compensation program would assist recipients who currently suffer from or later develop diseases associated with breast implants. Manufacturers would fund the disease compensation program in three annual installments for current claims and annually for the ongoing claims.

For the first 15 years of the ongoing program, the defendants would fund up to $100 million per year for claims as needed. For years 16 through 23 they would pay up to $75 million annually, and for the remaining years they would provide up to $50 million annually.

Defendants and class members all would have the opportunity to withdraw from the proposal if an excessive number of individual claimants and manufacturers choose to opt out.

"The important thing to realize is they [breast-implant recipients] should submit a claim," Moll said. "They can always proceed with their lawsuit if the settlement is not to their liking.

The outline of medical conditions covered includes systemic sclerosis and scleroderma; systemic lupus erythematosus; atypical neurological disease syndrome; mixed connective tissue disease and overlap syndromes; polymyositis and dermatomyositis; primary Sjogren's syndrome; and atypical connective tissue disease, atypical rheumatic syndrome and non-specific autoimmune condition.

The settlement would be submitted to the federal court in Alabama in In re Silicone Gel Breast Implants Products Liability Litigation, MDL-926.

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