Kramer Levin Achieves Appellate Victory for Injured Breast Implant Recipients

Putting to rest a longstanding dispute between injured tort claimants and breast implant manufacturer Dow Corning, the Sixth Circuit Court of Appeals on July 31, 2014 affirmed a lower court decision that held that hundreds of women who had been implanted with breast-design tissue expander implants were entitled to millions of dollars of benefits offered to claimants pursuant to a global settlement that allowed Dow Corning to emerge from bankruptcy a decade ago.

Following an earlier appeal, the Sixth Circuit had directed the district court overseeing the settlement to consider evidence outside the contract to determine if the parties had intended to include tissue expanders (which are implanted temporarily to prepare the body for more permanent implants) within the definition of the term “Breast Implant” for purposes of eligibility for settlement benefits. The district court concluded that the parties did intend to include tissue expanders, mainly on the basis that such products had been treated as breast implants in prior settlements, including one offered by other major breast implant manufacturers that served as the basis for the Dow Corning settlement. In its most recent decision, the Sixth Circuit rejected all of Dow Corning’s challenges to the lower court’s analysis of the issue and held that “[o]n remand, the district court fairly did what we asked and reasonably construed the operative terms of the settlement agreement in the process.”

Kramer Levin, as counsel to the Tort Claimants’ Committee, helped negotiate and implement Dow Corning’s $3 billion settlement, which went into effect in 2004. Since then, Kramer Levin has served as counsel to the Claimants’ Advisory Committee, which functions as a fiduciary for the thousands of individuals asserting settlement claims arising from Dow Corning's implanted medical products.

Kramer Levin’s team on the matter is led by litigation partner Jeffrey S. Trachtman and includes Theodore S. Hertzberg, Carl D. Duffield, and Daniel Schumeister. The original bankruptcy engagement was overseen by Kenneth H. Eckstein, co-head of Kramer Levin’s Corporate Restructuring and Bankruptcy Department.