While it took some plaintiffs’ lawyers by surprise, Dow Corning Corp.'s recent proposal to settle thousands of cases resulting from silicone breast implants could be a hopeful sign.
Although important details of the $4.75-billion settlement package are still unclear, Dow Corning’s willingness to make this proposal relatively early in the litigation indicates that it may understand something too many other corporations named in such mass injury suits have failed to grasp. Namely, that to injured plaintiffs fairness hinges not just on the amount of money that ultimately changes hands but the timeliness of that compensation. Dow Corning may understand too that its own corporate survival could depend on a speedy and good-faith resolution of the implant cases.
Between 1 million and 2 million American women have had silicone breast implants. Thousands have sued the makers of implants--Dow Corning was a major manufacturer and supplier to other makers--claiming that the devices have caused a variety of serious illnesses including lupus, scleroderma and other connective tissue and neurological disorders. The trickle of personal injury lawsuits filed in recent years became a flood after a few key verdicts for plaintiffs and imposition of a moratorium on silicone implants by the U.S. Food and Drug Administration last year. The FDA partially withdrew the moratorium last April, allowing the implants for medical reasons but not for purely cosmetic purposes.
About 6,000 pending federal suits have been consolidated into a class action. The proposed Dow Corning settlement could affect these as well as many of the estimated 6,000 additional cases pending in state courts.
The $4.75-billion settlement--to be funded by the implant manufacturers, raw materials suppliers, insurers, doctors and hospitals--would provide compensation for injuries as well as medical treatment, including the removal of implants. Individuals could receive between $200,000 and $2 million, depending on their injuries. But major issues must still be resolved, including who will contribute how much toward the fund, how the money will be distributed among current claimants and whether the fund is enough to adequately compensate all involved, including those who have not yet filed claims.
Plaintiffs and their lawyers must also approve the package. Many of the lawyers involved have also participated in litigation over injury caused by asbestos exposure or use of the Dalkon Shield intrauterine device. They have seen litigation in the asbestos and Dalkon cases dragging on while plaintiffs suffer and die and stonewalling defendant corporations declare bankruptcy. The silicone implant litigation offers all parties the chance to do the right thing.