Shiley Seeks Law to Limit Damage Suits by Foreign Litigants Over Heart Valves

In an attempt to limit potential damages in wrongful death suits stemming from faulty heart valves, Shiley Inc. is seeking state legislation that would prevent foreign litigants from fighting their cases in California courts.

The bill by Senate Majority Leader Barry Keene (D-Benicia) would eliminate a current standard that allows many foreign plaintiffs to try product liability cases in California courts. Judges routinely accept such cases if the plaintiff can show California provides more stringent liability laws and more generous awards than the country where the death occurred.

Officials of Pfizer Inc., a New York-based pharmaceutical firm that owns Shiley, said the bill will put California manufacturers on a more competitive footing with foreign manufacturers who don’t have to deal with California’s liability laws, considered to be among the toughest in the world. The bill was scheduled to be heard today by the Senate Judiciary Committee.

At a Disadvantage

Shiley presented the bill to Keene in draft form about three weeks ago and is expected to lobby vigorously for it. Keene said he agreed to author the bill because California businesses are at a disadvantage under the current system.

But some lawyers representing the families of deceased recipients of Shiley heart valves contend that the Irvine-based firm is just trying to minimize its potential liability for an estimated 40 cases known to have been filed in California by plaintiffs from such countries as Sweden, Norway, Canada and Australia.

The California Trial Lawyers Assn. also opposes the bill, which it calls “special legislation of the worst sort. They (Pfizer) want to escape liability to foreign victims of their defective heart valve.”

“The idea of making American companies more competitive by devaluing the lives of foreigners is appalling,” said Dr. Sidney Wolfe, director of the Washington-based Public Citizens Health Research Group, which since 1984 has been acting as a clearinghouse for plaintiff attorneys doing battle with Shiley.

Reported deaths caused by malfunctioning of the Bjork-Shiley Convexo Concave heart valves now number 134, according to the U.S. Food and Drug Administration. Pfizer so far has been hit worldwide with more than 200 lawsuits brought by surviving family members who allege that the deaths resulted from shoddy workmanship that caused the valves to fail.

Pfizer officials refuse to disclose the exact number of foreign lawsuits. But they observe that about half of the 88,000 Bjork Shiley Convexo Concave heart valves implanted since 1979 were sold overseas. Production of the valve was discontinued in October, 1986.

So far none of the lawsuits have gone to trial. An estimated 30 lawsuits have resulted in out-of-court settlements, some for in excess of $1 million, according to plaintiffs’ lawyers. The precise terms of the settlements have not been made public.

‘Peculiar Rule’

Robert C. Ross, general counsel for Pfizer Hospital Products Group, which includes Shiley, flew to Sacramento from New York Monday in preparation for the Judiciary Committee hearing on the state bill.

In a written statement of Pfizer’s position, he said, “California manufacturers are burdened by a peculiar litigation rule which is placing them at a serious disadvantage when it comes to their competitors from other states and countries.”

Pfizer’s goal in spurring Keene to sponsor the legislation, Ross said, was to amend California law to match the federal standard, which allows federal judges to refuse to hear the lawsuit of a foreign plaintiff if they decide that he has an adequate legal forum at home. Ross said the judge could decide to hear the case in California if he felt there was no adequate remedy.

But Gene Wong, counsel for the state Senate Judiciary Committee, said in his analysis the proposed bill as it is now drafted is “even more restrictive than the federal standard.” He said it would prevent a judge from hearing the case of a foreign plaintiff even if the plaintiff has no legal remedy against the manufacturer in the country where he was injured.

Attorney Bruce Fizen, whose firm represents five foreign litigants, said moving cases from California to foreign judicial systems frequently would deny plaintiffs a right to collect important documents from Shiley or to subpoena witnesses. Also, Fizen said many foreign judicial systems, unlike California, would not consider reimbursing the families of deceased heart valve recipients for their emotional distress.

The Keene bill is similar to legislation that has been introduced in the U.S. Senate by Sen. Howell Heflin (D-Ala.) and in the House by Rep. Dan Glickman (D-Kan.). The federal legislation would require the transfer of product liability cases involving foreign victims to federal district courts where they would be tried according to the law of the foreign litigant’s nation, not U.S.law.