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Judge Puts Dow Chemical Back Into Breast Implant Case

April 26, 1995

BIRMINGHAM, Ala. (AP) _ A federal judge put Dow Chemical back into a $4.25 billion settlement of breast implant claims, saying the company must defend itself against new evidence.

Women’s lawyers say Tuesday’s decision could improve the chances for survival of the landmark product liability settlement. The judge has joined settlement critics in suggesting implant manufacturers have not provided enough funding to pay women who filed thousands of breast implant lawsuits.

U.S. District Judge Sam Pointer reversed his December 1993 dismissal of Dow Chemical as a defendant.

Dow Chemical has claimed no direct knowledge of risks or hazards of silicone implants made by Dow Corning Inc., a joint venture with Corning Inc. But Pointer ruled that new evidence could lead jurors to believe Dow Chemical was aware Dow Corning was using its silicone research dating to 1948 in the manufacture of implants.

About 4,900 women had filed federal lawsuits against Dow Chemical. Some of those later joined the $4.25 billion settlement, which is designed to provide women with payments ranging from $105,000 to $1.4 million, depending on their physical condition and age.

Those amounts could be reduced if an unexpectedly large number of women register to participate in the deal and companies refuse to pay more. Women would have an opportunity to leave the settlement were payments reduced, possibly placing the whole deal in danger of collapse.

Dow Corning is paying the largest share of the settlement, $2 billion.

Top executives of Dow Chemical acknowledged last year that a former Italian subsidiary, Gruppo Lepetit, once distributed breast implants overseas.

Dow Chemical Chairman Frank Popoff called it a ``terrible mistake″ that the company previously failed to reveal Gruppo Lepetit’s work. But Dow Chemical argued it should not be held responsible for the subsidiary’s obligations.

Tuesday’s ruling ``means Dow Chemical can no longer sit on the sidelines and pretend it is not a player in this litigation,″ said Ralph Knowles, an attorney for women in the case.

But a spokesman said Dow Chemical had no plans to enter talks about the settlement, which Pointer approved last year.

``Neither the facts nor the law ... warrant Dow Chemical contributing to the settlement,″ Dan H. Fellner said from headquarters in Midland, Mich.