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Lawyers Battle Over Structure Of Implant Suits - The Wall Street Journal-Law - February 21, 1992

By: Robert L. Ros, Staff Reporter of The Wall Street Journal
The Wall Street Journal-Law
February 21, 1992

A new battle has broken out over silicone-gel breast implants - among lawyers who represent women with the controversial devices.

On one side are lawyers bringing individual cases on behalf of women who claim they've been injured by the implants. On the other are firms seeking class-action status to represent as a group the one million or more women with the implants.

"It stinks," says Houston lawyer Mike Gallagher about the several attempts to get breast-implant class actions. "It doesn't give the client good representation, and it doesn't work," says the lawyer, who already represents about 50 women.

Chicago attorney Norman Rifkind, who has brought a class-action lawsuit, counters that some lawyers who oppose class-action status are fighting "to maximize their own recovery" of fees by representing women with serious illnesses.

Indeed, lawyers can collect hefty contingency fees if they win the cases for their clients. But attorneys fees for successful class actions can dwarf those of individual cases. In large cases, they can easily run into the millions of dollars, with the lead law firm often collecting the biggest share.

Yesterday's recommendation by a Food and Drug Administration panel to keep silicone breast implants on the market under restricted conditions shouldn't have much effect on the litigation, lawyers say. Indeed, this week's three days of FDA hearings triggered even more calls from concerned women to lawyers.

The breast-implant dispute promises to keep lawyers occupied for years. "It's the hottest tort being litigated now," says San Francisco attorney Melvin Belli. His firm represents individual clients, and is also seeking a class action to fund medical monitoring of women and removal of implants.

In this latest debate over class-action suits, Mr. Rifkind argues that the one he's pursuing in Chicago is a way to provide representation for women who don't have severe enough injuries to attract lawyers on a contingency-fee basis.

A federal judge has yet to rule on the Chicago suit, which seeks to represent virtually all women with silicone breast implants. But in Cincinnati, U.S. District Judge Carl B. Rubin last week conditionally approved a similar class, ruling that whatever the merits of the case, "a class action is far superior" to many individual cases.

Stanley Chesley, whose Cincinnati firm, Waite, Schneider, Bayless & Chesley, achieved the conditional certification, says the decision means common issues can be addressed more efficiently, taking "the chaos out of the situation."

Not likely, others declare. LeRoy Hersh, a lawyer who won a $1.7 million judgement in an implant case against implant maker Dow Corning Corp. In 1984, says the cases are too dissimilar to be handled together. Another question is whether the companies could even come up with names of women with implants.

Dow Corning , a joint venture of Dow Chemical Co. and Corning Inc., is one of several implant makers being sued by women who allege they were harmed by the devises. The companies deny wrongdoing and maintain that so far, research hasn't shown a link between the implants and human immune and other illnesses.

Mr. Hersh and others argue that the common issues that make class actions desirable are lacking in implant cases, because the devises have been made by many companies and are alleged to have caused many different illnesses. It's far more complicated than class actions involving a single product or company. "It's not like 210 people on a DC-10 with a defective engine," says Thomas Demetrio, a Chicago lawyer. "Everybody will have their own tale of woe" about breast implants.

Certification of the class in the Cincinnati court could be changed or even reversed in future court proceedings. Eventually, class-action suits could be consolidated in one jurisdiction. Mr. Chesley says other firms are seeking to do just that with his case.

Class-action advocates note that the cases can be structured flexibly and allow women to "opt out" and pursue their own cases. But for those choosing to take part, early settlements could backfire if they later develop more serious illnesses they believe are related to the implants. Settlement provisions could preclude them from seeking further damages.

Product-liability lawyers opposing the class actions may have an interesting ally. Dow Corning says that it, too, fails to see the common link in the cases. "We think ultimately there will not be a class action," says Robert Rylee, chairman of Dow Corning's health-care businesses.

The company estimates 500,000 to 600,000 women have its implants. Though some women say serious illnesses resulted from the devises, others say they are pleased with the product.

Estimates of manufacturers' ultimate liability have ranged as high as $2 billion. Implant makers say it's far lower. The final figure, which might not be known for years, will depend on the number of women involved and the amounts, if any, they're awarded in court.

Frank Woodside, Dow Corning's national legal counsel for the cases, says he has seen 200 suits against the Midland, Mich., company so far, but heard about more. A Chicago lawyer, for instance, told him he had 75 cases but has only filed six so far.

Milwaukee lawyer Andrew Zieve has run ads in Chicago and Wisconsin newspapers inviting women with breast implants to call a toll-free number. "This law firm is presently helping many victims, and is interested in helping more, no matter where they live," the ad reads.

Mr. Zieve says six other lawyers have asked him for copies of the ad..

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