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Class Certification Sought in Breast Implant Suit Filed Here - Chicago Daily Law Bulletin - February 14, 1992

By: Mary Wisniewski
Chicago Daily Law Bulletin
February 14, 1992

Lawyers for seven women who are suing for damages over their silicone breast implants appeared before U.S. District Judge Ann C. Williams Friday on a motion to certify their case as a class-action suit.

But the Chicago case is not the first implant lawsuit in the nation seeking class certification. One other has been filed in Cook County, and was later transferred to federal court before U.S. District Judge George W. Lindberg. Other cases seeking class certification have been filed in Ohio, Kentucky and Minneapolis.

Judge Williams suggested that the cases seeking class-certification may be right for multi-district litigation. That was how the Administrator of the U.S. Courts handled the numerous national asbestos cases, consolidating them all in a single court in Pennsylvania.

"If this is managed well at the beginning, it will save everyone a lot of money" Williams said.

Bernard Wiczer, of Wiczer & Associates, the lead attorney on the case before Williams, said that he hopes all the national cases will be consolidated in Chicago, as it centrally located. He said that if this class action is approved, these seven women will represent 1 to 2 million women nationwide.

Wiczer, along with Norman Rifkind and John L. Sullivan of Beigel & Sandler, filed the suit against Bristol-Meyers Squibb Co., Medical Engineering Corp., Dow Corning Corp. and CUI Corp. Feb. 5.

The suit alleges negligence by the manufacturers by failing to warn plaintiffs of the possible adverse side effects of the silicone implants, and failure to properly and adequately test and inspect the implants.

The suit also claims negligent infliction of emotional distress and breach of warranty. Reportedly, some of the companies claimed the implants were guaranteed for life.

An estimated 1 million women have undergone cosmetic or reconstructive implant surgery since 1962. Reports of injuries related to the breast implants prompted recent hearings about the safety of the implants before the Food and Drug Administration.

The FDA last month declared a moratorium on new implants, and next week an FDA advisory panel will meet to evaluate new information.

Dow Corning last week released documents showing that its own researchers were concerned as far back as the early 1970s that the implants could leak, with undetermined consequences, according to published reports.

Kenneth Moll of McDowell & Colantoni, a Chicago attorney who has been handling breast implant litigation for the last three years, said he does not think breast implant cases are right for a class-action suit.

Moll said the breast implant cases are not like the suits involving Dalkon Shield or asbestos, two other products which prompted large liability claims.

"With Dalkon Shield and asbestos, you had one product, and one kind of injury," Moll said. With breast implants, there are many different kinds of products and injuries. Some women have severe immunological responses, some have none at all, Moll said. Different types of gel were used in the products, and different companies produced the implants.

In a class action, "if you have a stronger case, the weaker cases hold it down." Besides, the women who have called him seeking litigation do not want to be in a class-action suit, Moll said.

Moll belongs to a breast implant group operating through the American Trial Lawyers Association. The group consists of lawyers who are handling breast implant litigation and want to exchange information about their cases. Moll said that other lawyers in the group have agreed that a class action is not the answer.

Moll said he is only taking cases which involve immunological responses, and is refusing the cases of women who have not had such a response but fear they might get one. He said Beigel and Sandler asked him to refer the cases he turned down to their firm.

Wiczer and Rifkind talked to reporters from Chicago newspapers, radio stations and television stations in the federal courthouse Friday about the suit.

A member of the proposed class, Mara Martin, 54, a Chicago actress, spoke to reporters about her negative experience with a silicone breast implant.

Martin had her implant in 1982, following a mastectomy. Since then, she has had (sic) suffered shooting pains in her chest, she said Friday.

"I'm angry at having been lied to, I'm angry at the continuation of the lies," Martin said.

The plaintiffs in Wiczer's case are seeking compensation for any past injuries, a fund to remove the implants if necessary, and to provide funds for any future medical treatment that might be needed.

The case was continued until March 6, when the status of the class-action certification request will be reviewed.

Lawyers representing the defendants in the suit were not immediately available for comment.

Inez Barnett, et al. v. Bristol-Myers Squibb Co., et al., No. 92 C 0895.

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