EDITOR'S NOTE: U.S. District Court Judge Sam Pointer appeared Jan. 24, 1996 on Court TV's "In Context With Arthur Miller" to explain the proposed settlement in the federal breast implant litigation. The following is a transcript of the program.
COURT TV Transcript
Air Date: January 24, 1996
"In Context With Arthur Miller" The Revised Breast Implant Settlement Program
ARTHUR MILLER, Host: Hello. I'm Arthur Miller and welcome to a special edition of In Context. We are pleased to have with us United States District Judge Sam Pointer. Judge Pointer is presiding over the national litigation involving breast implants and currently over the revised breast implant settlement program. The judge, along with three other guests who are involved in this case, will explain the legal rights and options of women under the revised settlement agreement with some of the manufacturers. Those of you who are frequent In Context viewers may see something a little bit different tonight. This is designed as an informational program not only for the hundreds of thousands of women who are involved in the breast implant litigation, but for all of you out there. We hope to give you an insight into some of the most complex, interesting mass tort civil cases currently going on in the United States.
So without further delay, let me introduce the guests. First, the distinguished jurist I have just spoken of, the Honorable Sam Pointer. Judge Pointer is the chief judge of the United States District Court for the Northern District of Alabama. He is, as I just mentioned, presiding over the revised breast implant settlement program. Second, Judge Ann Cochran. Judge Cochran is currently the claims administrator for revised breast implant settlement program. Third, Linda Willett, an attorney with experience in pharmaceutical and medical device litigation. Linda represents some of the defendants in this case. And fourth, Leslie Bryan, a litigation attorney who has worked extensively on the federal multi-district litigation. Leslie represents many of the plaintiffs in this large, complex case. Welcome to all four of you.
Now, we had better tell our viewers something about this breast implant litigation. Judge, what's it all about?
Hon. SAM POINTER, JR., Chief Judge, U.S. District Court, Alabama, Presiding Over Revised Settlement Program: Well I think the unusual thing right now Arthur is that traditionally when courts have sent out notices to class members about settlements or rights, they've done so through advertisements, through written packages, and we're doing that. But that can be rather intimidating and daunting if you get a package in the mail that's pretty thick and you open it up and wonder what to do with it. In this particular litigation, we're trying to do some additional things. We'll have some regional meetings where people can come to explain and hopefully learn about their rights, and this program that we're trying to put on not to try to talk people into or out of a settlement or exactly how to exercise their options, but really more informational, what the things mean and we cannot answer all the questions. It's going to be -- we're going to have to do a summary and we may be wrong if we do, being something live and unrehearsed. We'll correct it on a hot line that we have.
ARTHUR MILLER: Right. So the basic objective of this program is to inform, to explain to people, particularly the people who are caught up in this litigation, what's happening, what's happening. Now, why is this such an unusual case?
LESLIE BRYAN, Litigation Attorney, Represents Some Plaintiffs In Revised Settlement Program: Well the breast implant litigation is unusual because of the sheer volume of women that are involved. There are estimates that vary about how many women have breast implants, but conservatively, someplace between half a million and 800,000 women in the United States have implants. So that causes this to be of great interest to a number of people.
ARTHUR MILLER: This case supposedly, if I remember the media attention given to it about a year or two ago, was supposed to be settled. It was supposed to be settled under what was called a global settlement and now we're here on this show talking about what I referred to a couple of minutes ago as a revised settlement program. Ann what -- what's happened there?
ANN COCHRAN, Claims Administrator, Revised Settlement Program: The original global settlement that was announced in April of 1994 was, in large part, predicated upon whether or not the number of claims and the amount of moneys committed under that program would be either a fit or at least a close fit. The number of claims and the number of claims that, in a statistical sample that our office conducted for the judge, the number of claims that were likely to be approved under the original global settlement were going to be so great that the numbers, the dollar figures of benefits that were originally set out, would have to be reduced, perhaps down to under five percent of -- and that's not a five percent reduction, but a 95 percent plus reduction -- down to perhaps under five percent of the amounts originally set out and under the original global settlement, if any reduction of benefits were to occur, then all of the class members would have an opportunity to opt out again, to say no thank you and leave the settlement. In turn, if the manufacturers who had agreed to put up the money for that global settlement had decided that too many women had said no thank you, then they had the right, under the original plan, to walk away.
ARTHUR MILLER: I gather that, from the perspective of the manufacturers, it was necessary to re-look at the situation?
LINDA WILLETT, Litigation Attorney, Represents Some Defendants In Revised Settlement Program: Yes, and it was always anticipated under the original settlement, Arthur, that there would be an opportunity to do just that.
ARTHUR MILLER: So where are we now, judge? What's happening as we sit here and chat?
Hon. SAM POINTER, JR.: Well I concluded as a result of the sampling that there was no way that the benefits could go forward without, in effect, ending up with so many opt outs that the manufacturers would withdraw, that there would essentially be nothing except further delays, and it was as a result of that that the manufacturers and the plaintiffs went back, so to speak, to the bargaining table, to see if there was some way of making some adjustments that might at least reduce the amount of reduction, and as a result of that, although there was no agreement between the plaintiffs and the defendants, the defendants ended up coming back and saying we have something that we believe will at least be better for class members than the original deal with these problems with it, and it's sort of in that context now that we are -- I have approved that the manufacturers could put out, the particular manufacturers, a revised settlement program to be solid -- to be submitted to the various class -- almost 450,000 roughly.
ARTHUR MILLER: And the submission is what's going on right now. I gather there's been a major mailing.
ANN COCHRAN: Yes, we mailed last week almost half a million packets of information all around the world. Mostly here in the U.S., but probably a little over 60,000 of those numbers going to foreign countries. It's a packet with a lot of papers and a lot of information, which is one of the reasons that --
ARTHUR MILLER: Frightening at first glance.
ANN COCHRAN: It's intimidating at the beginning. I think we have some hints and we'll be able to talk later in the program about specific places where people can go because I think we have found, and in the claims office in Houston, we've now had three days experience of talking on the phone with people who've actually received their packet and tried to go through it and I think we did have some -- perhaps some help tonight and some other places where people can get help, at least where the best place to start in your packet is.
ARTHUR MILLER: What's in the packet?
ANN COCHRAN: There is, first of all, and I only have a couple of these, there's a letter from the judge that's sort of an introduction page and another couple of fliers. Probably the most single important piece is this large booklet that is the official court notice. We also have a -- and for a lot of people, this is a good place to start, the manila piece of paper that's just a one page synopsis on the one side and something entitled ``Deciding What Forms To Use'' which, when you see the variety of color-coded forms, they're for different forms, they're each on a different color, and then we have a pink question and answer booklet that covers a lot of the same information that's in the notice in the others, but tries to rephrase it. Sometimes people can hear something when it's phrase one way instead of another.
ARTHUR MILLER: I read that this afternoon and it's a tremendous array of questions and answers that I would think would be exceedingly helpful. Now we don't do this in normal two party litigation, do we?
LESLIE BRYAN: No, we certainly do not. One of the reasons for all of the paper, and I would particularly emphasize the importance of Ann's -- the importance of the question and answer booklet, one of the reasons for all this paper is to help people learn on their own, both the lawyers the women themselves, learn what this program is about so that they can make decisions about whether to accept the program or not.
ARTHUR MILLER: And that's what we'll be turning to. After a short break we'll talk with our guests about the substance of this settlement program, the choices that individuals have and the types of economic considerations that attend each of the choices. Just a reminder, we will provide information throughout the program for each member of the class and we hope to answer some -- as Judge Pointer said, there's no way we can answer all of the questions. Get a pencil, paper and if you've already gotten that packet, get that packet out. Maybe it'll be helpful to follow our discussion with the packet. We'll be right back.
[Commercial break]
ARTHUR MILLER: We're talking about the revised settlement program in the massive breast implant litigation, trying to provide some help to those who are in the class and some general information to people who just are interested in civil litigation, big cases. Judge, what's the primary question facing the members of the class when they receive these booklets?
Hon. SAM POINTER, JR.: Well basically they're going to have to decide do I want to get out of the class, do I want to, perhaps, proceed with my own litigation, number two, do I want to sort of stay in the class, perhaps be a part of the settlement, and, in this case, do I want to wait to decide. That's basically the third choice, it's what I'm recommending is most appropriate for most people.
ARTHUR MILLER: And by waiting you mean what? In comes the booklet.
Hon. SAM POINTER, JR.: That wait until they are informed as to their status in the litigation based upon any submissions they've filed. Until they are told by Ann's office, the claims office, have they submitted things, have they shown their manufacturer identification, which we'll get into, if they have already filed a claim what they would be entitled to if there are deficiencies. In effect, wait to decide until you are told where you stand in terms of possible rights.
ARTHUR MILLER: Now is there any deadline? In comes the book, the member of the class reads the book. What does she have to do within what time?
Hon. SAM POINTER, JR.: Well she doesn't have to do anything at that point. There's no tie limit as such. However, certain things could be adversely affected if she does not act in a particular time. If she does not, if it's a person that has never registered at all with the claims office, then they really should fill out one of the election forms, which we'll get to, and send it in by April the 1st.
ARTHUR MILLER: But if you already registered in an earlier period in the case.
Hon. SAM POINTER, JR.: Then April 1st of this year is not a deadline at all. The next possible deadline would be December 16th of this year, and that's for certain people called current claimants, which I think we'll get into maybe a little bit later on where in order to preserve special rights and options that current claimants have, they need to fill out and provide something by December the 16th of this year. In general, however, this is a program that goes over a 15-year period of time and with the exception of a few items, and I -- maybe it's important to say this, Arthur. One of the things I hope we can do tonight is to try to get people to read the materials. It may be hard and it may be challenging and it's not something just for the late evening entertainment --
ARTHUR MILLER: But you did a fine job of talking about an amazingly complex settlement arrangement. If people will just take the time and the energy to read it, I think they will get more and more out of it as they go through it.
Hon. SAM POINTER, JR.: That and the Q&A, or the question and answer booklet.
ARTHUR MILLER: Yes. Let me focus on what I think we all agree is the fundamental choice for the class member and that is should I opt out and go my own way or should I stay in and accept the program. Now, we've got a member of the plaintiffs' group, we've got a member of the defendants' group. Just outline for us, Leslie, some of the considerations you think the class members should take account of.
LESLIE BRYAN: Well, first of all, I am enthusiastic, as is my firm, about trying breast implant cases and we're looking forward to going to trial in a number of cases. Despite that, I think that there are things that some of the women and their lawyers need to look at very carefully in deciding whether to opt out a case or whether to accept this offer. Those things, in my mind, include things like relative statutes of limitations. Whatever the state statute is, you need to make sure you're all right. The state statute of repose -- a number of jurisdictions have a statute of repose that could bar the claim.
ARTHUR MILLER: Now those are the legal principles --
LESLIE BRYAN: Legal impediments.
ARTHUR MILLER: Yes, that tell you when you must assert your claim by?
LESLIE BRYAN: That's right. But in addition to those kinds of legal considerations, there are a number of other considerations that I think women and lawyers need to think about very carefully. For example, going to trial in a tort case is not fun. It is hard work for the plaintiff. She's going to have to endure a deposition. She's going to have to endure her social history coming out. In all likelihood, if she's got any psychological records, they will end up being produced in the litigation. So there are considerations the plaintiffs need to weigh very carefully in making these decisions.
ARTHUR MILLER: Now, what would you add to that list of considerations?
LINDA WILLETT: Well, Arthur, I think it's important to understand and know that opting out is just one of the options that women have under the settlement. We hope that all of the women will look at the other options before they make a decision to stay in or to opt out. If they do decide to opt out, I think the things that Leslie has said are, of course, very accurate, and there is the added problem of delay. There isn't any certainty that a case will get docketed for trial quickly. Therefore the woman doesn't really have resolution very quickly while she's waiting for a trial and the outcome of that trial may be very uncertain. There isn't any certainty by opting out, but looking at the global settlement and making the choices of the settlement brings some certainty.
Hon. SAM POINTER, JR.: Well I think there's an additional consideration, without trying to say well that one should be in or out of the settlement is we've already got about 20,000 cases in the court system, federal and state, of cases already that have been filed. If you're talking about new cases being filed that may raise that number from 20,000 to -- I don't know what the number would be --
ARTHUR MILLER: Anywhere up to 450,000.
Hon. SAM POINTER, JR.: And you're talking about -- yeah, you're talking about cases that take to try -- probably the shortest of these cases has been about two and a half weeks. Some have lasted like five and six weeks to try. There's a lot of cost. It's probably a minimum right now of incremental cost to a plaintiff wanting to try this case of $200,000, to the defendant, probably an equal or a greater amount. Those costs may come down in the future as we try more and more. We've tried probably -- there's more than a dozen cases thus far in federal and state courts and, of course, some of them favor the plaintiffs and some favor the defendants. It's not that they all come out favorable one way or the other.
LESLIE BRYAN: Arthur, but the judge raises a good point with respect to the cost issue. I think that as the early cases go to trial, that is what the costs are going to look like. It's going to be someplace between $100,000, $200,000, maybe even more to bring a case to trial, because the defendants are going to insist on a large volume of treating doctor depositions, there's going to be huge costs involved. The plaintiffs are working hard to bring those costs down. There are trial packages available, we are making efforts to put expert depositions on videotapes that will be available. But nonetheless, I think plaintiffs who face early trial dates need to be aware that the costs are going to be fairly high. Also, Linda mentions the delay. I think it might be useful to the audience to understand about one of our clients. We have a client who filed her case in 1989, went to trial before a jury in Alabama in 1991 and got a verdict, a good verdict. The verdict was overturned on appeal in the 11th Circuit. The case was sent back for retrial. We tried the case again before Judge Pointer in January of 1995. Again we got a verdict. Judge Pointer reduced the damages in the case and the case is now awaiting retrial again. So this woman's been waiting since 1989, has tried her case twice and has seen no money. So people should not think that all cases are going to result in multi-million dollar verdicts.
ANN COCHRAN: I think that it's important to realize everybody at this table and all the people that we represent, that there's just not one answer that's right for every woman. It's a highly individual decision and how much weight to give any factor is going to depend entirely on that woman's situation. But I think there's a little danger in -- and I don't want anybody to be left with the impression that everyone who registered with the original global settlement has the choice between accepting a new settlement program --
ARTHUR MILLER: That was exactly my next question.
ANN COCHRAN: Because that's not true.
ARTHUR MILLER: Who is eligible for this, Ann? Who's eligible?
LINDA WILLETT: Well there is some basic eligibility that you need to know about and there are some exceptions and in terms of eligibility, the three things that our viewers need to know is that a participant must be a U.S. citizen or a resident alien or had -- she must have had her breast implants implanted in the United States. She also must have had a breast implant that was manufactured by one of either Baxter or Bristol or 3M and implanted before June 1st, 1993. That's a lot of information. I've got more to give you here. Or she could have had a breast implant, one or more breast implants manufactured by McGhan and implanted after August of 1984. I think it's after August 2nd of 1984, if I'm not wrong, Ann.
ARTHUR MILLER: Linda, you'd better identify the manufacturers whose products are covered by this settlement.
LINDA WILLETT: The manufacturers are Baxter, Bristol, 3M and to some extent breast implants manufactured by McGhan.
ARTHUR MILLER: Now how does a woman prove the manufacturer?
ANN COCHRAN: Well if I could back up for a minute, because for a lot of women, the threshold question is can I find out who, what kind of implants you've had. We have, at the very back of the white notice part of the booklet there are about eight pages that list in alphabetical order name after name after name of every known name of implants ever made or distributed in the United States and a couple of foreign countries with a column to the right of that saying if you have this implant, then it's a Bristol, but if you have this implant, it's a Dow Corning, and if you have this implant -- so for a lot of women, finding out whether or not you have an implant that is covered by this program is going to be a task. We hope we've done enough work in Exhibit G at the back of the notice to at least make it a simple task for a vast majority. But you've got to know whose implants you have.
ARTHUR MILLER: Right. Let's take a closer look at that, but after a short break. We'll come back with our guests and continue the discussion of the proposed revised breast implant settlement. Stay with us.
[Commercial break]
ARTHUR MILLER: Welcome back. Before we continue to talk with our guests, get your pens and paper ready because before we go to our next break, we'll be giving you some telephone numbers and an address which should be helpful to you. Just before the last break, we were talking about identification of the implant and that's, as I read the question and answer book and as I read some of the questions that came in over the information line in the last couple of days, the identification question can be critical judge.
Hon. SAM POINTER, JR.: Yeah, well initially, in the original settlement terms, identification was not a major problem. With the revised settlement program, it is essential that people identify the manufacturer, and indeed, that the manufacturer of at least one of their implants is from one of these settling manufacturers. There basically are two problems. One is the woman who does not know or needs to find out who it is that manufactured my product and perhaps some proof of what it is and the second is if I get information and it has a trade name on it, is that trade name the -- a name that was put out by one of these settling manufacturers and there's sort of -- there are two separate problems. The attorneys or the individual have the problems of going to doctors and hospitals to get the information on what is my implant and getting proof of it, and, to some degree, we then have the informational system that's contained in Schedule G to try to say if you've got this implant, then it goes with this manufacturer.
ARTHUR MILLER: And if it's not one of the listed implants, the individual isn't eligible and I gather that's because Dow Corning, one of the defendants, is not participating in this phase of the litigation.
Hon. SAM POINTER, JR.: Well, one of the things -- earlier we were talking about why the earlier settlement was not going forward -- was not only that there were a lot of claims that were being presented, but the company that was putting up about three-eighths of the amount of money is in bankruptcy and that has a little -- a slight impact on what you can do.
ARTHUR MILLER: It has a certain chilling affect. And as a plaintiffs' lawyer, if I might call you that, there's probably --
LESLIE BRYAN: Delighted to be called that.
ARTHUR MILLER: This problem of manufacturer identification, is it surmountable, insurmountable?
LESLIE BRYAN: It's surmountable. It's sometimes not easy to get medical records from doctors or hospitals but this is an area where all women, whether they already have lawyers or whether they're unrepresented, will be able to have legal help. They can go to their own lawyers if they're already represented and the lawyers and their staffs should be able to help with getting the records. If they are unrepresented, later in the program we'll be giving a number for claims assistance counsel. But these are lawyers who will be equipped to help women not only get their medical records, but ascertain whether the proof that they get of their implant manufacturer is acceptable.
ARTHUR MILLER: Let's talk now about the benefits that an eligible class member would get if she opted into the settlement.
LINDA WILLETT: Arthur, to some extent, the benefits are tied to registration for the original global settlement and there were three categories of registrants -- current claimants, other registrants and late registrants, and each of those categories is tied to a date of registration. Those dates and the information about those categories are in the notice and the question and answer booklet. I won't go through them now but I will tell you that, by and large, the largest group is other registrants and I can describe the benefits for other registrants. First of all, the other registrants would be entitled to a $3,000 payment to cover or partially cover the cost of explant surgery should the participant want to have her breast implants removed. Secondly, the other registrant would be entitled to a $1,000 up front payment against the amount of compensation she would receive, somewhere between $75,000 to $250,000 dependent on new disease criteria that, again, are described in the settlement information. And this is a 15-year program, and so at any point in time during that 15 years, the medical records could be upgraded and the registrant or the participant could receive additional compensation.
ARTHUR MILLER: So an individual who is currently not now ill but became ill down the time line might have the benefits adjusted?
LINDA WILLETT: Could have the benefits adjusted if she qualifies under that particular category, yes.
ARTHUR MILLER: And you're to administer all of this, Ann?
ANN COCHRAN: Yes.
ARTHUR MILLER: How is that going to be done, other than with great difficulty?
ANN COCHRAN: We already have in the claims office a very well trained staff, both under the original global and now under the terms of the revised program, including people who already have a great deal of expertise and knowledge about the symptoms and medical findings that you have to have to qualify for this long-term benefits program.
ARTHUR MILLER: Let me ask you a couple of questions sort of based on -- again, questions that came in over the information line. Is there a rupture fund set up in this settlement, as there was in the original global?
LINDA WILLETT: No, this settlement does not contain a rupture fund. The original settlement did. But, there are payments that are available under certain circumstances for rupture and that's part of the current claimants' benefits that Ann would be describing.
Hon. SAM POINTER, JR.: Well yes, there's a separate classification, and Linda was talking about other registrants, there's a special classification called current claimants, those who had already filed and presented claims through the claims office back -- by September and October of last year and basically --
ANN COCHRAN: That's the year before last now. Time is moving on.
Hon. SAM POINTER, JR.: Well yes. Now we're in '96. People that met that deadline of what we call current claimants, those people get additional protections or options that are not available just to the person who's never filed something and a part of those options involves special benefits if you have proof of a rupture of a Bristol, Baxter or 3M implant.
LESLIE BRYAN: Now it has to be a silicone gel implant, not a saline implant.
ARTHUR MILLER: Not a saline?
LESLIE BRYAN: It has to be a silicone gel implant.
ARTHUR MILLER: Now what's the status of health care providers, of insurance companies and the like?
LINDA WILLETT: Well Arthur, as you know, insurance companies or health care providers can normally request a participant to reimburse for any medical payments that have been made and the defendants in this particular -- or the participants -- the defendants in the settlement don't have any additional obligations to pay into the settlement. However, there are negotiations going on now between the attorneys for the participating companies and the attorneys for certain insurers and providers, I think perhaps over 1,000 judge?
Hon. SAM POINTER, JR.: I think it's over 1,000 that are involved in the negotiations.
LINDA WILLETT: And those negotiations are aimed toward perhaps if the participating companies would be willing to pay some additional moneys into the settlement, then the women wouldn't be required to do that reimbursement and, in effect, it means more money in their pockets.
ARTHUR MILLER: Right.
Hon. SAM POINTER, JR.: This is one thing that we do not know where it stands yet, but we are hopeful that it's being worked out. It may be an additional reason to sort of wait and see if these possible medical charges would affect one's decision.
LESLIE BRYAN: I think that's actually fairly good advice because, for some women, if their health insurance carriers have asserted subrogation claims, those claims can be fairly high. So if the claims can be erased by this agreement between the manufacturers and the subrogation carriers, that may be of benefit to women.
ARTHUR MILLER: Let me ask about another cost item that everybody thinks about and that's attorneys' fees. How will that be handled?
Hon. SAM POINTER, JR.: Well, under this revised settlement program, individual attorneys fees will have to be borne by the individual participant out of her share of whatever she gets. However, I have set certain limits on how much an attorney can charge, assuming that their agreement would otherwise allow for it, and that is that it can be no more than 10 percent of the first $10,000 charged and as to the next $40,000 that's recovered by a woman, no more than 22-1/2 percent and as to amounts above $50,000, no more than 30 percent. It's not saying that the court is authorizing it. It's simply saying if the attorney and the client have agreed on that amount or more, then the court is simply setting these limits, and I've also indicated that that -- there should be no such percentage charge on the explanation award of $3,000.
ARTHUR MILLER: Well it sounds as if you've been trying to husband the fund for the women.
LESLIE BRYAN: Well this is an issue actually that the plaintiffs' lawyers worked closely with the judge on. As you know, this is not a true settlement agreement, but the plaintiffs' lawyers did have input from time to time and, in fact, went to the judge and urged no fees on explant money and that the judge should be specific about what the fees are.
ARTHUR MILLER: Well it's time for another break. We'll continue our discussion in a couple of minutes, and just a reminder, here are some telephone numbers and an address to help answer any questions you may have.
[Commercial break]
ARTHUR MILLER: We're talking about the revised breast implant settlement program. I want to ask about implants by two manufacturers. The first is Dow Corning. It is a major player in the breast implant field. It is in bankruptcy. What's the legal status?
Hon. SAM POINTER, JR.: Well first we ought to go back and say that the description we've already given about benefits, potential benefits, are essentially those that if one can prove that she has had at least one Baxter, Bristol or 3M implant, we've assumed that and there's some qualifications. If the person has also had a Dow Corning, one or more -- and there are many people who have had multiple implants -- then the basic benefits under the settlement are reduced by 50 percent as the documents reflect. If the -- at the same time, the person still has a potential claim against Dow Corning. It would have to be pursued through the bankruptcy court. We cannot say whether that claim is going to add money or what the result of that is going to be. If the person has had only a Dow Corning implant, and there are many people like that, then there's nothing under this settlement dealing with that person and her only claim is really going to be related to what can be obtained through the bankruptcy court.
LESLIE BRYAN: Well, Arthur, on that I'd like to say that there is an active tort claimants committee in the bankruptcy court appointed committee. There are eight plaintiffs' lawyers on that committee and one consumer advocate on that committee who are zealously protecting the rights of the women who have Dow Corning claims.
ARTHUR MILLER: Well spoken, well spoken. Now, the bankruptcy, we also should note, is not before Judge Pointer. It is up in --
Hon. SAM POINTER, JR.: Michigan.
LESLIE BRYAN: The Eastern District of Michigan.
Hon. SAM POINTER, JR.: It's in the Eastern District of Michigan.
LESLIE BRYAN: Before bankruptcy Judge Specter. [sp?]
ARTHUR MILLER: Yes, okay, now, the other manufacturer I wanted to talk about is McGhan. We've -- McGhan's name has come up.
Hon. SAM POINTER, JR.: We've described something about 3M and 3M implants and that being part of the settlement. That's really talking about McGhan 3M implants that were manufactured on or before August the 3rd, 1984. After that date, the McGhan implant business was sold, really, to a separate company. That creates a lot of additional complication in terms of the legalities and obligations and in turn, there is a special program relating to McGhan implants manufactured wholly after August the 2nd by McGhan, but the benefits are more limited. You have to look at the provisions of the agreement, of the notice, in terms of what's there. They simply are far more limited than the ones that would come if you've had Baxter, Bristol or 3M. Without going into the details, that's what the problem is.
ARTHUR MILLER: Once again, we're driving our viewers to the booklet. Let me ask about children. How are children treated by this settlement?
LESLIE BRYAN: To the extent that a child has a derivative claim, one that is for loss of services of his or her mother, those claims are going to be covered by this revised settlement program. There are no additional benefits for those derivative claims, but they will be covered by this program. To the extent that children have standalone claims, their own claims as a result of injuries they have suffered directly from the breast implants, those claims are preserved and the booklet specifies time periods, either under the rules of the notice or under state law to bring those claims.
ANN COCHRAN: But those claims are preserved outside of this revised settlement program.
LESLIE BRYAN: That's right.
ANN COCHRAN: There are no provisions for those children filing any forms with the claims office or really having any dealings with the revised settlement program.
Hon. SAM POINTER, JR.: The claims office doesn't want to get those claims in, but if there are claims and lawsuits filed, then they're not precluded in any way.
ARTHUR MILLER: That's right. They're just outside this particular program.
ANN COCHRAN: Right.
ARTHUR MILLER: We've got to go to break. When we come back, we'll talk about the procedures that have to be followed for pursuing one's rights under this agreement.
[Commercial break]
ARTHUR MILLER: What's the procedure, Ann, in terms of people receiving this booklet? What should they do or what should some of them do?
ANN COCHRAN: Well for sort of a longer-term relationship with the claims office, for those who either choose to wait to decide, [the] option that the judge is recommending, or who know that they want to participate and, most importantly, know what kind of implants they have and have actually looked those implants up on Exhibit G to make sure that the magic names Baxter, Bristol, 3M or McGhan are next to them, the blue form becomes the most important at that point. That's the form to send in your proof of -- the proof of that manufacturer or of that particular brand that gets you into the revised settlement program. That is, at least for the initial first six to nine months of this process, the ticket to getting what we call a notification of status letter and that letter is going to give as much information as the claims office has about that person's file. It'll say whether or not their proof has been found to be acceptable or, if not, you know, what the problems are with it. If any claims have been made to describe those problems. We're really trying to provide as much detailed, helpful information so that those who have waited to decide will really have a lot better informational basis upon which to make that decision.
ARTHUR MILLER: So this will be a process?
ANN COCHRAN: Yes.
ARTHUR MILLER: This will not be an overnight --
ANN COCHRAN: Right.
ARTHUR MILLER: The inevitable question, of course, is when will the checks be written?
ANN COCHRAN: And everybody looks at me. I have to say that in Texas, we'd say that I'm snake bent on that. It seems that for the last year and a half, two years, every time a good faith time estimate has been made to the members of this particular settlement class, something has happened, unforseeable, that made our best faith predictions turn out to be wrong. Just two weeks ago, it was the blizzard of '96 that delayed mailing out our packages.
ARTHUR MILLER: So as the cliche goes, you're doing the best you can?
ANN COCHRAN: As soon as we can --
ARTHUR MILLER: As soon as you can, the check will be in the mail?
ANN COCHRAN: Yeah, but I can't -- I can't, you know, promise another date.
ARTHUR MILLER: Let me focus now on someone who wants to or is thinking about opting out, of saying no, no thank you. What happens?
LESLIE BRYAN: Well a couple of things. First of all, I think that she needs to think long and hard about whether she's got a lawyer, because if she makes the decision to opt out quickly, the statutes of limitation will start running again very quickly for her. So she needs to be aware of that. But she also needs to be prepared for the inevitable wait for a trial date and she needs to be prepared for what she's going to go through in the process. Now these are good cases. These defendants made defective products, put them on the market and they're in women's bodies. Linda obviously disputes that. I know. That's why a plaintiffs' lawyer --
ARTHUR MILLER: That's the voice of the lawyer.
LESLIE BRYAN: That's my plaintiffs' lawyer bent. But the benefit --
LINDA WILLETT: And I'm just as fervent.
ARTHUR MILLER: You deny.
LESLIE BRYAN: That's right, she denies.
LINDA WILLETT: Most assuredly.
LESLIE BRYAN: The benefit of the revised settlement program to women is they don't have to prove that their breast implants caused their problem. If they opt out of the settlement and they go to trial, they are going to have to prove whatever damages they're claiming at trial were caused by their breast implants.
ARTHUR MILLER: If a woman doesn't have a lawyer and wants to explore her rights, is there an organized bar, a place where she can [go] for some advice as to finding a lawyer?
LESLIE BRYAN: Well there are a couple of areas. First of all, there's the claims assistance counsel, and I don't know whether we've given the number yet, but we will, a group of lawyers who will be able to assist women, at least preliminarily, with some of the issues that the revised settlement program presents. To the extent that a woman wants to talk to a lawyer about litigation, the breast implant litigation group of ATLA is working hard to develop a network of lawyers that will be available.
ARTHUR MILLER: Time for another break. When we return, we'll provide telephone numbers and an address one more time for you, so stay with us.
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ARTHUR MILLER: Welcome back. We hope you have your pen or pencil in hand, because we want to provide additional information about the settlement. If you have not received your notification booklet by February 1st or need any other information concerning the settlement program, please call the claims office at 1-800-600-8311 or 1-713-951-9106. Again, the numbers to call are 1-800-600-8311 or 1-713-951-9106. Or, you can write to the Claims Office, P.O. Box 56666, Houston, Texas 77256. And if you want to learn more about regional informational meetings, you can call 1-800-938-7357. And finally, the number to call for the claims assistance office is 1-513-651-9770. Judge, anything to add?
Hon. SAM POINTER, JR.: I think the main thing is that if people have their own attorneys, that's where they should go first. These are other options in the event they either do not have attorneys or are having difficulty getting information. Certainly go to their own attorneys first.
ARTHUR MILLER: Good night to all four of you, judge, Linda, Ann, Leslie.
LESLIE BRYAN: Good night.
ARTHUR MILLER: Thanks so much for providing this information to our viewers and we hope the process goes as smoothly as the law will permit. Next week, another In Context. Join us. We'll be here. We hope you are, as well.
