19 juin, 2006 12:28

Corporate Exploitation of the Breast Implant Women (4)

**** ABI Inform: The Japanese insurance and reinsurance market is the 2nd-largest in the world, annually generating more than $70 Billion in premiums.

**** ABI Inform: During a session at the RMF in September 1993, Richard Porter of Alexander & Alexander Ltd. and David Harari of Sedgwick SA expressed confidence that Europe's social security systems would prevent excessive Tort litigation.

**** ABI Inform: Financial reinsurance products generally utilize one of two funding approaches. Loss portfolio transactions that allow the reinsured to transfer some or all of its past claims liabilities to the reinsurer and one that allows the reinsured to cover itself for losses that cannot be insured through the traditional market. Among the factors helping to create an attractive climate for financial reinsurance are the increase in risks that are difficult to insure and the enormous costs associated with produce liability.

**** ABI Inform: John Churchfield, chief financial officer of Dow Corning said insurance would pay about 1.2 Billion of Dow Corning's contribution. John McGoldrick chief negotiator for Bristol Meyers-Squibb said insurance would pay all or nearly all of the company's contribution.

**** ABI Inform: Baxter International Inc., is suing more than 100 major liability insurers, seeking coverage for millions of dollars of claims by hemophiliacs who claim they were infected by the AIDS virus after being treated with Baxter blood products.

**** ABI Inform: When a manufacturer purchases products liability insurance, it does so with the intention of transferring the uncertainty of a possible future loss to its insurance company in exchange for a stated, fixed sum, or annual premium. The amount of coverage for multiple claims depends upon the trigger of coverage; number of occurrences and interpretation of policy exclusions. Every manufacturer has risk manager lawyers who constantly review the company's portfolio. Every liability policy should be closely examined for exclusions that may limit the policy holder's coverage. **** ABI Inform: Settlements that are negotiated after judgments frequently include either a protective order restricting access to the case's facts and evidence supporting its adjudication, or a vacating decision which expunges the decision from public record. These provisions primarily benefit manufacturers and their insurers embroiled in product liability and policy coverage disputes that use them to guard trade secrets and prevent unfavorable judgments from establishing precedents that future plaintiffs can cite.

**** ABI Inform: The incentives a company faces to recall a product that is discovered to be defective after it has been sold allows an interpretation of recalls as the firm withdrawing a product from the market before its current inventory is exhausted. The 2nd phase allows an interpretation of recalls as either the return of the product to the firm or the destruction by consumers of existing stocks.

The analysis highlights the role of a firm's reputation in enforcing implicit contracts with former customers and the importance of the assumption of heterogeneous consumers in the analysis of policy. A major implication of the analysis is that, when a firm cares about its reputation, making it liable for full damages in cases where it fails to adequately warn consumers of the true quality of previously purchased products may not lead to efficient behavior on the part of the firm.

**** ABI Inform: On January 27, 1992, Arnold Weigel, stated that Dow Corning has set up a $25 million reserve to deal with the silicone breast implant issue. Part of the reserve is intended to cover claims activity, while the rest is intended to pay for attorneys and other expenditures tied to defending the safety of silicone gel breast implants. Although he would not release the firm's total amount of product liability insurance, Weigel conceded that the company has more than $200 million "per occurrence" in coverage. Weigel admitted that, although the company has known for a long time that the implant could leak and rupture, no risk management steps were taken because all studies by Dow Corning indicate that there is no risk for cancer and the immunological problems that are being addressed.

**** July 12, 1993 Dow Corning Corp is suing 73 of its liability insurers whose policies date back to 1962, the first year Dow Corning manufactured and sold the devices. The combined limits of coverage at issue total $3.48 BILLION. This is just Dow Cornings lawsuit. The others are suing their insurers and you can bet they will get their money after they have given the women pennies. We won't hear of their lawsuits. What state of litigation are these insurance performance of contract lawsuits in?

**** March 2, 1992 Dow Corning Corp outlined its $250 million insurance program to cover risks associated with its breast implants. The company's primary insurer is Zurich (American) Insurance Company. Dow/Corning Glass Works have an umbrella in excess coverage (catastrophic) on Dow Corning. Long-based Anglo American Insurance Co., Ltd., London-based Zurich Re, X.L. Insurnace Co, A.C. E. Insurance Co., Ltd., Hartford, etc. (Query: Could they have purposefully allowed this to happen to collect on insurance and use corporate write offs? See Agent Orange re corporate write offs.)

**** ABI Inform: The Administrative Conference of the United States, "an independent Federal agency", is currently supporting a radical new proposal to remove all asbestos personal injury claims from the court system and pay claimants through an administrative agency. The proposal is authored by Lester Brickman of Cardozo Law School at Yeshiva University. The proposal calls for the creation of a "trust fund" financed by the manufacturers of asbestos-containing products and their insurers, that would pay asbestos bodily injury claimants "wages" awarded under the proposed system. In addition, attorneys' contingency fees would be eliminated. (The manufacturers don't want to be held liable for anything they do, and if they are made to be accountable, then they want to maneuver to the lowest point of compensation to the adversely affected consumer plaintiff in their "Administrative Trust Fund.").

**** ABI Inform: January 1992. In the case of Lewy vs. Remington Arms Co., Inc., the US Court of Appeals, 8th Circuit, attempted to establish the principle that certain types of product liability lawsuits may be "foreseeable." The court also addressed significant records related to these types of lawsuits and established three major criteria for assessing a records retention program that results in destruction of records covered by a subpoena in a subsequent lawsuit.

(1) Determine if the records retention policy is reasonable for the particular case,

(2) Determine if lawsuits concerning the records have been previously filed and the frequency and magnitude of the complaints.

(3) Determine if the retention policy was instituted in bad faith. An organization should first determine whether its records could be involved in litigation that is foreseeable based on the guidelines provided in the Remington Arms case. If litigation is deemed foreseeable, the organization should keep the records for a reasonable period of time.

**** ABI Inform: " Second-generation" implant cases open another front in breast implant cases. According to attorney Aaron Levine, silicone gel-filled implants can harm children in three ways:

(1) the silicone can leak into a mother's milk ducts,

(2) it can pass through the umbilical cord or placenta during pregnancy and

(3) it can cause an autoimmune disease in the mother that in turn may cause problems with subsequent pregnancies.

**** ABI Inform: June 28, 1993. Due to the controversy over silicone gel breast implants, chemical companies are halting sales of silicone and other materials used in medical device implants because of fear of future lawsuits. Dow Corning Corp, stopped selling solid silicones for implantable devices on March 31, 1993, even though they differ significantly from silicone gel.

**** ABI Inform: In Daubert vs. Merrell Dow Pharmaceuticals Inc., the Supreme Court unanimously rejected a rule that expert testimony could be admitted at a trial only if it is generally accepted by experts in a particular field. Instead, the Court held that the Federal Rules of Evidence, which were modified in 1975, give trial judges more discretion over what evidence can be admitted. Under the 1975 rule, if scientific, technical, or other specialized knowledge will help courts or juries to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify.

**** ABI (April, 1993): To be successful in litigation defense, a company needs to make effective use of outside counsel, says Richard H. Rubenstein of Wilson, Elser, Moskowitz, Edelman and Dicker at the meeting of the American Bar Association's National Institute in March of 1992. An ineffective relationship with the company may result in outside counsel being blindsided by plaintiff's counsel. According to Rubenstein, this includes selection of the highest quality local counsel consistent with the company's fiscal restraints, prompt and thorough investigation of claims. To properly use outside counsel in product liability cases the company must first decide which litigation philosophy it will follow.

**** ABI Inform: Multinational insurance managers say they allay concerns about maintaining adequate insurance at all international locations by obtaining global overseas policies that "fill in the gaps" that go uncovered by primary policies issued by local insurers. One must constantly review changes in case law and regulations in the countries where ones company operates in order to keep up. Western Europeans are starting to make their liability laws similar to those in the US, but that the speed at which Western Europe is revamping its liability laws is still slow and in terms of dollars, the product liability system in Europe is not at all close to that of the US says Douglas S. Williams of Boehringer Ingelheim Corp. Along these lines the ABLJ advised that it is an opportune time for manufacturers, who have not already done so, to consider exporting their goods to Europe. The experience accumulated over the last three decades that strict liability has been the law in the US enables business to view the European Community as a "great marketing opportunity." The same holds true for Japan and South America and also Canada because of socialized medicine, one does not have access to punitive damages.

**** ABI Inform: July 23, 1994, Science News magazine states that a new study of silicone breast implants indicates that the silicone get used in the implants causes a rare cancer in genetically susceptible strains of mice.

**** ABI Inform:July 20, 1994 Journal for the National Cancer Institute states that there is experimental evidence that peritoneal plasmacytomas (tumors) are formed in genetically susceptible mice by the injection of silicone gels from mammary implants. (See enclosed Mice Study).

**** ABI Inform: May 28, 1994 How the dangers of silicone breast implants were kept "secret" during the 1970s/1980s when manufacturers slapped "protective court gag orders" prohibiting women and witnessess, who had won settlements against the manufacturers, from publicly revealing evidence used in court. Congress is considering changing the laws on "gag orders" where public health would be jeopardized by secrecy.

**** ABI Inform: The case of Diamond Mortgage Corp. of Illinois decided by a federal bankruptcy court is among the first to interpret Federal Trade Commission regulations which increase the scope of potential liability for all parties involved in the making or broadcasting of a misleading advertisement. The court held that each such party has a duty to conduct an independent inquiry to determine the truthfulness of the claims in order to avoid liability for harm caused by the false product commercial ads.

**** December, 1991 - Management Review: As Executive Director of the Product Liability Coordinating Committee (PLCC), Bill Fay has been working to get a unified Federal Tort Statute passed that clearly defines when, and how, consumers will be compensated for injuries caused by faulty products or services; this Bill would replace the current system of individual state laws. Boasting 700,00 member corporations, the Product Liability Coordinating Committee (PLCC) appears to have all the political clout it needs to achieve its goal, but to do so, it must first take on and defeat the most effective single interest group in Washington - the Trial Lawyers lobby.

**** ABI Inform: Business hopes to make the point that today's legal system blunts the U.S. competitive edge by keeping innovative new products off the market. A recent study published by the Brookings Institution found that litigation does not seem to be the overwhelming driving force behind most product safety improvements; rather, government regulatory requirements and corporate concerns about bad public relations are more significant factors.

****Insurance:

**Loss ratio data by state and insurer group for the period 1977-1986 are used to investigate the way in which liability doctrines affect both relative prices and underwriting risk faced by commercial liability insurers. Four different performances measures are used for each state: total risk, relative risk, systematic risk and the mean loss ratio for the state over the time period. It is found that higher average state loss ratios and higher levels of systematic risk are associated with absolute liability tort standards.

**** January 14, 1991 - Business Insurance: Under the Consumer Product Safety Improvement Act of 1990, signed by President Bush on November 16, 1990, manufacturers must report to the Consumer Product Safety Commission (CPSC) if they lose or settle 3 product liability lawsuits that allege the same product caused death or grievous bodily injury within a 2-year period. Section 37 of the Act establishes that the first 2-year period began January 1, 1991, and that subsequent periods will begin on the first day of every odd-numbered year. Manufacturers are subject to a $1.25 million fine for failing to report product liability settlements or court awards. Some corporations fear that the information reported to the CPSC will be made public, which could lead to additional product liability litigation.

**** October, 1994 - Quality: The design review of a new product is a critical first step for a manufacturing company to take to protect itself from potential problems with product liability. The design review involves bringing together manufacturing, quality assurance and reliability engineering, process engineering to analyze the proposed product and specifications. The objective is to determine if a new product will be reliable for its intended application, whether the tolerances is available, and to isolate potential problem areas. the only consistent way to control product quality is to have an established total quality system. (Yet Tom Talcott was reassigned when he told the manufacturer that making the silicone fluid thinner would put stress on the walls of the envelope and the fluid needed to remain thick in order to keep it from gliding through the tissue planes of the body.)

**** July 5, 1993 - Business Insurance: In Daubert vs. Merrell Dow Pharmaceuticals, Inc., the Supreme Court unanimously rejected a rule that expert testimony could be admitted at a trial only if it is generally accepted by experts in a particular field. Instead, the Court held that the Federal Rules of Evidence, which were modified in 1975, give trial judges more discretion over what evidence can be admitted. Under the 1975 rule, if scientific, technical, or other specialized knowledge will help courts or juries to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experiences, training or education may testify.

**** January 14, 1991 - Business Insurance: A product liability lawsuit filed by the granddaughter of a woman who took the antimiscarriage drug diethylstilbestrol (DES) could set a precedent that would greatly expand liability for all types of manufacturers if the case is allowed to proceed to trial. Allowing a granddaughter to sue for injuries that allegedly resulted because of her grandmother taking DES 30 years ago could spawn a plethora of suits against all types of manufacturers. Karen Enright, 7, alleges that her cerebral palsy and daily seizures resulted from a chain of events that began when her grandmother ingested the antimiscarriage drug DES before the girl's mother was born in 1960. The girl's suit is unique because she does not claim that she suffered genetic defects - passed down the maternal line - as a result of her grandmother's ingestion of DES. Rather, she blames her medical problems on the injuries that her mother's reproductive organs suffered as a result of her exposure to DES while in the womb.

**** May 28, 1994 - New Scientist: The inside story of how the dangers of silicone breast implants were kept secret for years is enraging lawmakers. Women who won settlements against the implant manufacturers in the 1980s (and earlier) were slapped with protective court orders prohibiting them from publicly revealing evidence used in court. Congress is considering a change in the laws on gag orders that would forbid them where public health would be jeopardized by secrecy.

**** November, 1993 - Lifestyles - Family Values - Jeff Bailey - ProQuest: Baxter International is a Billion-dollar business success story. However, financial fortune led to a history of personal misfortunes for the Falks, one of the company's founding families - to parental cruelty, sibling rivalry and bitter recriminations. The sins of the mother, Marian Falk, were visited upon the daughter, Carol Falk, and the sizable fortune of the father, Ralph Falk, Sr., went to the son, Ralph Falk, Jr. (See attached article. And they want us to believe that they will be "fair" and just with us? He was willing to sell his mother.

**** August 3, 1994 - The Wall Street Journal: Baxter International, Inc., and Rhone-Poulenc Rorer, Inc., have tentatively negotiated a joint settlement of as much as $160 million to compensate the 6,000 or more people with hemophilia who contracted AIDS from the two companies' blood-clotting medications during the early 1980s'.

***** January 21, 1994 - Business Insurance: Baxter International Inc. is suing more than 100 liability insurers, seeking coverage for millions of dollars for claims by hemophiliacs who claim they were infected by the AIDS virus after being treated with Baxter blood products. Between 45% and 50% of all 160,000 U.S. hemophiliacs are HIV-positive. the hemophiliacs charge that Baxter and other suppliers were negligent in providing contaminated blood products and seek damages for bodily injury, wrongful death, loss of consortium, and other torts. (Their "rush for the patent" with Rhone Polenc. They had patent infringement lawsuits against each other before their product went on the market. The result of their rush: 160, 000 families now have Aids victims wherein the whole family will have to suffer. They blocked them from forming a Class Action. The taxpayer will be paying for them to be treated in these corporations hospitals, buying these corporations medicines, placed in these corporations nursing homes to die! They have gotten rich from the patent house to the death house!

**** February 28, 1994 - Forbes

Hospital supplies outfit Baxter International had a rough year in 1993, which included being "suspended from doing new business with the Department of Veterans Affairs." Why weren't they excluded years ago during the beginning of the 1970/1980 lawsuits? It takes a long time for the government to do what is right. Heyer-Schulte contracted the Veterans Administration to run implant tests. Why did the Veterans Department keep the information secret? Are they culpable also along with the FDA? Whose in charge of the Veterans?