Breast implant lawsuits cleared

Kim Smith

Thursday, Dec. 23, 1999 | 11:10 a.m.

A U.S. Bankruptcy judge in Michigan has cleared the way for more than 200 Nevada women to sue Dow Chemical Corp. over their silicone breast implants.

Thousands of U.S. women began filing lawsuits against Dow Corning Corp. in the early 1990s, claiming that leaking gel from the implants caused such things as lupus, rheumatoid arthritis, fatigue and memory loss.

However, when Dow Corning filed for bankruptcy protection, the women also began suing Dow Corning's parent company, Dow Chemical, said Geoffrey White, a Reno attorney who represents 49 Nevada women.

One Elko woman, Charlotte Mahlum, was awarded a $14.2 million judgment against Dow Chemical in 1997, White said. While the Nevada Supreme Court later slashed the award to about $4 million, the judges upheld Nevada women's right to sue Dow Chemical.

Shortly thereafter, White said, Dow Corning filed a bankruptcy plan which, if approved, would exempt its parent company from being sued.

White said the plan also called for Dow Corning to split $3.2 billion among the 170,000 women who had filed suit against it with each woman getting between $10,000 and $50,000.

The women were asked to vote 'Yes' or 'No' on the bankruptcy plan, White said. Approximately 94 percent of the women approved the plan and the rest, including 200 Nevada women, did not.

On Nov. 30, U.S. Bankruptcy Judge Arthur Spector of Bay City, Mich., issued a one-page ruling approving the plan and lawyers for those women who did not approve the plan began filing appeals, White said.

A 55-page opinion released Wednesday, however, makes it clear Spector did not approve the entire plan, White said.

"He wrote that he was not releasing Dow Chemical (from future litigation)," White said. "He said and I quote, 'to do so would be patently absurd and unjust. It would also be unlawful and therefore have no affect.' "

As a result, the 20,000 women who did not approve the plan (including the 200 Nevadans) may benefit from both Dow Corning and Dow Chemical, White said.

"There is room to argue under the plan that the Nevada women could collect the $10,000, $20,000 or $50,000 from Dow Corning and separately proceed against Dow Chemical for much more compensation," White said.

Dow Chemical has a net worth of about $25 billion, White said.

Dow Corning will appeal Spector's decision, spokesman Michael Jackson told the Associated Press in Detroit.

The Dow Chemical clause "is fundamental to the plan and without the release, there's no plan," Jackson said.

White said his clients did not sign off on the bankruptcy plan because the $10,00 to $50,000 it allowed them will not cover their medical expenses.

"I don't see why any attorney in Nevada would or could, in good conscience, recommend that their client vote yes on the bankruptcy plan, but if they did, their clients are barred from benefitting from Judge Spector's decision," White said.

Already, Dow Chemical officials have expressed an interest in negotiating a settlement, White said.