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Thursday, April 14, 1994 - Page updated at 12:00 AM

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Women Wonder If Settlement Over Silicone Is Enough

Dallas Morning News

Barbara Fox isn't impressed with the results of the class-action lawsuit against the makers of silicone-gel breast implants. She says the preliminary $3.7 billion settlement is not enough.

Fox, 61, of Mesquite, Texas, doesn't believe the money is enough to "compensate all the women for all the problems they have."

According to the preliminary settlement, every woman who has had breast implants could seek money by demonstrating certain medical problems. Payments would range between $200,000 and $2 million. That amount depends on how many women join the lawsuit.

"The math just doesn't go around," says Kip Petroff, a lawyer in Dallas with 250 breast-implant cases. "The women will never get anywhere near those figures."

Compounding the problem is the number of foreign women who can join the class-action lawsuit and the growing number of children who are affected by the silicone in their mothers' bodies.

The $3.7 billion - to be paid over 30 years - will be broken into a projected three categories.

About $1.2 billion will compensate women now suffering from one of eight diseases. About $1.9 billion is set aside for women who will develop diseases in the future. An additional $635 million would become a fund to cover various treatments and services, such as removal and medical monitoring, over the next 30 years.

Even if every woman now suffering receives only the lowest payment of $200,000, the $1.2 billion will compensate only 6,000 women. Earlier this week, 3M announced it had settled with plaintiffs' lawyers for $325 million, which it would pay over two years. Even so, that would provide only 1,625 more women with $200,000 apiece.

It is estimated that 22,249 cases have been filed in state and federal courts. No one knows how many women might join the class-action suit.

About 1 million American women received silicone-gel breast implants between 1962 and 1992, when the Food and Drug Administration restricted their use.

The number of women joining the class-action suit, both American and foreign, is expected to grow as the public announcement is made shortly to inform women around the world. Since news of a possible settlement was first publicized five months ago, the number of suits filed in state and federal courts has doubled.

On April 5, U.S. District Judge Sam Pointer tentatively approved the $3.7 billion class-action lawsuit settlement and set deadlines for filing claims. The deadline for deciding to join the class-action suit, or to pursue an individual court claim, is June 17.

Meanwhile, the mechanics of the intricate settlement are in motion. A hearing will be held this summer so those who dislike the settlement can object. Women unhappy with the deal can opt out. If the settlement wins court approval, the review process will begin.

The settlement appears to be growing. Earlier this week, when 3M announced its $325 million settlement, it was announced that Union Carbide had agreed to pay $138 million over two years, McGhan Medical $25 million over 25 years, Wilshire Foam $8 million over two years and Applied Silicone $250,000 immediately. The companies did not confirm the report.

"A lot of women are going to look at this as an easy way to get some money, and a lot of lawyers who've never been involved (in breast-implant litigation) are now advertising and encouraging women to come out of the woodwork," says Richard Laminek, a lawyer in Houston who represents about 2,000 women in the breast-implant litigation.

Across the country, women are trying to make sense of the settlement. Should they join in the settlement? Should they go for a court trial?

Barbara Fox is weighing her options, but it's not easy. Her husband died 10 months ago. So now, she finds herself sick and alone.

"I've got neurological problems," she says. "I'm now using a cane. My hip goes out, and my leg goes dead on me. I've already spent about $10,000 on medical bills.

"My husband . . . was so worried about me all the time. He had a massive heart attack. He worried all the time and was at every meeting with me. He always told me he couldn't understand how they could put implants in you and not tell you it's dangerous."

Under a compensation system based on age, illness and severity, Fox could be paid as much as $1 million. But her dignity requires more than cold cash.

"I want a court case," she says. "I want to be able to tell my story where this doesn't happen again. They've shoved it under the rug for so long. If every woman would be able to tell her story, you'd hear some ungodly stories about what happened. But nobody believed us. That's what hurt the most."

Legal experts agree that the settlement isn't good for every woman suffering from potentially fatal illnesses that range from autoimmune disorders to connective-tissue disorders. It's considered best for women with implants from manufacturers who've gone bankrupt and for women who don't know who made their implants.

"A large number of women should not participate in the settlement, like those who are severely disabled or have extensive disfigurement," says Mike Gallagher, a Houston lawyer on the plaintiffs' negotiating committee that hammered out the settlement with three implant makers, Dow Corning Corp., Bristol-Myers Squibb Co. and Baxter Healthcare Corp.

Sue Brown, who runs a support group in Lewisville, Texas, for women suffering from implant-related illnesses, said, "We don't know how good or bad the settlement is until we get a copy of the final draft.

". . . We'll talk to our attorneys, and then we'll decide."

Despite the efforts of the plaintiffs' negotiating committee, not everyone is happy.

"I think it's a cheap way to buy us off," says Linda Marshall, 46, a professor at the University of North Texas, who suffers from neurological problems.

"There's no control," Marshall says. "They (the manufacturers) could ratchet payments down to $10,000."

Such a sum would not help her, she says. "Next month I go to three different doctors, and each costs a bundle. . . . I've had my implants out, but there's no assurance I'm going to get better."

Some lawyers argue that the payments will not be cut too far. They say not all cases currently filed in the courts will meet the medical criteria that would allow compensation.

The women must show that they suffer from one of eight illnesses, which range from systemic lupus and scleroderma to mixed connective-tissue disease and Sjogren's disease.

For some women the choice between a class-action lawsuit or a jury trial won't be too difficult, says Reagan Silber, the Dallas lawyer.

"The women have to decide if they're willing to wait 10 years to get to the courthouse and, when that happens, how confident are they that the jury is going to say their problems are caused by implants. A lot of women, if they look at it rationally, will take the settlement. And some won't."

FOR INFORMATION:

Women can call a 24-hour hotline at 1-800-887-6828. The service, run by plaintiffs' lawyers, will send out copies of the official settlement notice when it is finalized, as well as forms to make claims.

Copyright (c) 1994 Seattle Times Company, All Rights Reserved.

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