DOW CORNING’S BANKRUPTCY FILING : Twice Distressed : For Implant Recipients, It’s More Uncertainty

Marie Walsh was awakened at 5 o’clock Monday morning with the news that Dow Corning Corp. had filed for bankruptcy protection.

The call came from a distressed woman in New York, one of thousands in a network Walsh helped to create through her pioneering efforts to hold the company responsible for alleged defects in silicone gel breast implants--defects such as the one Walsh says caused hers to rupture more than a decade ago.

Walsh, a mother of eight, could not contain her emotions. Although she was glad that Dow Corning had fallen to its knees, the 47-year-old Laguna Hills woman said she fears the Bankruptcy Court filing is nothing but a means to skirt its responsibility to compensate implant recipients.

“It reeks, it smells so bad,” she said in an interview, her voice weary after a morning visit to the doctor. “The women are being victimized again.”

In filing for Chapter 11 bankruptcy protection, Midland, Mich.-based Dow Corning said it in no way is shirking its promise to contribute more than $2 billion to a settlement fund for implant recipients--although the company has always insisted that its products have nothing to do with the women’s health complaints.

If nothing else, the legal maneuver means more uncertainty for hundreds of thousands of women whose lives have been gripped by uncertainty over the implants’ safety and whether they will be compensated.

Walsh, who filed a suit against Dow Corning in 1991, finally had a trial set for Aug. 2. Her case and 19,000 others, including 200 set for trial this year, now are in limbo.

“We’re just going to have to wait and see what happens,” said Ramon Rossi Lopez, Walsh’s attorney, whose Newport Beach firm represents about 500 women who have had breast implants.

By filing for bankruptcy protection, Dow Corning--once the largest manufacturer of silicone gel breast implants--is able to continue operating. But all legal action against the firm is halted at least for a time.

The company said its businesses are strong but that the lawsuits were seeking “exorbitant” compensation that could jeopardize its future.

Monday was supposed to be Bobbi Clark’s day in court. That’s when a jury was scheduled to be picked in an Orange County courtroom in her lawsuit against Dow Corning. Instead, proceedings were stayed until September.

“It was not the day I wanted to have. I’m really upset. I’ve been waiting a long time,” said Clark, who received silicone breast implants after a double mastectomy in the 1970s only to suffer a rupture in her right breast implant. She says the silicone from that implant leaked into her armpit and down her arm.

Having the implants removed in 1993 has helped. Clark said she no longer feels as if “my body [is] going to burst,” but she still wakes up every morning with pain and puffiness in her arms, wrists and hands.

Clark said she was trying to remain optimistic about her lawsuit, which she filed because her medical complications were not among those covered by the group settlement. “I know it’s all going to work out,” she said. “All I can do is have faith that the legal system is going to help all of us.”

When Mary Ellen Hager heard the news at her Chino Hills home at noontime Monday, her first thought was of what happened to victims of asbestosis when the largest manufacturer of asbestos materials, Manville Corp., sought bankruptcy protection.

“Some people eventually got their money,” Hager said, “but it took a whole lot longer and people who were very sick died. That’s the first thing I thought about today--that people who are sicker than me, they’re on hold again.”

Hager had joined in the settlement and was hoping to get enough money to have her implants replaced, or at least removed.

“I have one that’s leaking now. I don’t have the money” to have it taken out, she said. Hager also gets aches in her joints--a common complaint of women with implants.

For Marie Walsh, it is time to renew her battle.

“I intend to fight them,” Walsh vowed, standing in her kitchen in thongs--not shoes, she said, because ailments from her breast implant pain her from toe to scalp. “It just means we have to buckle our belt and get ready for a big fight.”

Walsh has become one of the leading spokeswomen for breast implant recipients. She founded the Breast Implant Information Foundation, which provides information and encouragement to breast-implant patients.

Over the years, she has testified at Food and Drug Administration hearings, and pictures of her scarred chest have appeared on national television. Her crusade has taken her around the world.

Walsh’s odyssey began in 1968, five years after silicone gel implants were first used. Then 20 years old, Walsh paid a Santa Ana plastic surgeon $1,200 to correct her left breast, which she said never developed.

Her first symptoms emerged in 1981: muscle aches, night sweats, hair loss. One morning in February, 1984, she awoke in a blood-drenched nightgown; her implant had ruptured overnight.

Since then, she has suffered from rheumatoid arthritis; scleroderma, and chronic lymph, kidney and liver problems. Walsh said she and her doctor believe the silicone gel from the implant migrated through her body and wreaked havoc on her immune system.

Since 1990, Walsh, a former stock broker, has received about $600 a month in Social Security disability payments. She has carried on her crusade through private donations and with help from her husband, who operates a sports development business from their four-bedroom home.

“I told her to stop” her crusade more than once, Jim Walsh said Monday, adding that he had threatened to leave her.

“Thank God she didn’t listen to me,” he said. “She knew this was bigger than our marriage.”

*

Lee reported from Laguna Niguel, Rivera Brooks and Walters from Los Angeles.

* MAIN STORY, A1

* CASE STUDY

Lessons from Manville’s asbestos-related filing. D13

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The Dow Corning Saga

Once the nation’s biggest supplier of silicone gel breast implants, Dow Corning Corp., a 50-50 joint venture of Dow Chemical Co. and Corning Inc., sought bankruptcy protection Monday, blaming a crush of implant litigation. Some facts and figures about the implant products and a history of the suit:

Implants * More than 2 million women worldwide have breast implants. So far, more than 410,000 have registered as claimants under a settlement proposed by implant makers. * Claimants complain of headaches, joint pain and chronic fatigue. They say silicone implants cause connective-tissue diseases such as scleroderma, lupus and rheumatoid arthritis. * According to the National Institutes of Health--which has invested more than $500,000 in researching a possible link between silicone implants and illness--no definitive evidence has been found linking silicone to various autoimmune diseases. * In March, Structured Biological International Inc. won approval for the first blood test to detect an immune response resulting from exposure to silicone. * Bills pending in the House and Senate would limit the liability of suppliers of biological materials, including silicone. These companies would also be affected by tort reform legislation pending in Congress. * More than 150,000 breast augmentations--averaging $2,400 a procedure--are performed annually. About 80% of the procedures are cosmetic; the remainder are breast reconstruction following cancer surgery.

Chronology * Dec. 3, 1993: U.S. District Judge Sam Pointer dismisses Dow Chemical and Corning as defendants in thousands of lawsuits involving health problems blamed on silicone implants. * March 23, 1994: Dow Corning agrees to pay $2 billion of $4.23-billion settlement of thousands of breast implant claims after nearly two years of negotiations. * Sept. 1, 1994: Judge approves settlement. * Sept. 15, 1994: New Zealand women begin appeal of settlement, blocking initial payment of $900 million. * Jan. 20, 1995: Dow Corning and Bristol-Myers Squibb Co. set aside additional millions of dollars for settlement because of unexpectedly large number of women registering. * April 25: Dow Chemical is reinstated as defendant in implant cases nationwide. * May 3: Women’s lawyers and implant makers begin new negotiations after court analysis shows more money will be needed to make first wave of settlement payments. * May 4: Dow Corning says it is actively considering retreat into Bankruptcy Court. * May 15: Dow Corning files for Chapter 11 bankruptcy protection.

Sources: Associated Press, Biomedical Market Newsletter, Times reports. Researched by JENNIFER OLDHAM / Los Angeles Times