Breast Implant Lawsuits Consolidated - Chicago Daily Law Bulletin - January 1, 1992

By: Helen Lucaitis, Law Bulletin Staff Writer
Chicago Daily Law Bulletin
January 1, 1992

Two silicone-gel breast implant class-action lawsuits were consolidated Friday in Cook County Circuit Court, making it the second class-action suit filed in Chicago on behalf of women who have leaking implants.

The lawsuit, unlike others, will seek damages for husbands of women with leaking implants for loss of consortium.

The broadly based lawsuit now seeks damages for women who suffer physical injury and for women who suffer only emotional distress and anxiety. Chicago attorney Robert Kipnis of the law firm of Holstein, Mack & Klein, whose firm moved to consolidate the two cases, said his firm will move to amend the consolidated complaint this week to include the loss of consortium claim for husbands.

Chicago attorney Larry D. Drury, who along with attorney Lee P. Foreman and Robert A. Holstein, a partner at Holstein, Mack & Klein, is lead counsel for the consolidated case, said he hopes the lawsuit will become a national class-action suit on behalf of all women who have silicone-gel breast implants.

Drury's original lawsuit, filed in the state court, moved to federal court and recently remanded back to state court, was joined with a class-action suit filed by Kipnis' law firm to create the new, consolidated suit.

So far, about six or seven class-action lawsuits have been filed nationwide, including two federal lawsuits in Chicago, one in Minneapolis, one in San Francisco and one in Ohio, according to Benita Adler, director of a breast implant lawyers' clearinghouse set up by Ralph Nader's Public Citizen Health Report Group based in Washington, D.C.

The clearinghouse was set up to provide a network for lawyers interested in breast implant litigation and a lawyer referral service for women who call and want to file a lawsuit, Adler said. Nearly 150 attorneys are members, she said.

Adler estimates that the attorneys, who met in Washington last week, have about 3,000 implant cases but that most have not yet been filed in court.

Lawyers have been divided over whether implant cases should be filed individually or as class actions, Adler said. That worry also is shared by the attorneys handling the consolidated case in Chicago, according to Kipnis.

Subclasses of plaintiffs in the consolidated suit are likely to be created so that all women can be a part of a suit, Kipnis said. "We as attorneys for the class have to ensure each member of the class is adequately compensated for those injuries," Kipnis said.

According to Adler, attorneys in the clearinghouse are "vociferously" split over whether class-action suits should be pursued. She said that she is leery of having large classes.

"There would have to be a lot of a subclasses [in one lawsuit]. There are so many problems because it's hard to get medical advice on having [leaking breast implant] problems, let alone categorize [the ailments] for litigation," Adler said. "It seems like there are a lot of unknowns there."

Drury said the breast implant litigation could be handled similar to the salmonella food poisoning cases, where thousands of Chicagoans became ill after consuming salmonella-poisoned milk from Jewel grocery stores.

Those cases were joined into a class-action for the issue of liability, Drury said. The issue of damages were tried individually because injuries were varied. A similar action could work for the breast implant cases, he said.

Chicago attorney Kenneth B. Moll, who has filed only individual lawsuits, but is handling more than 75 cases, said the consolidated case, by trying to encompass three types of claimants is "going a little bit too far."

Attorneys in the consolidated case and in others filed nationwide still face a large obstacle: certification of the class. Certification is essential before the cases proceed.

Illinois law, unlike many other states, allows for the possibility that a national class-action could be certified here, which is one reason Kipnis' firm filed for consolidation, Drury said.

Until then, Drury said attorneys in the case may seek an injunction to stop the production of implants unless adequate disclosures and warnings about the hazards of the implants are given to women.

The consolidated case is Mindy Safferstein, et al. v. Bristol-Meyers, et al., No. 92 CH 629, before Cook County Circuit Judge Monica D. Reynolds.

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