The big settlement of nearly 200 Dalkon shield lawsuits announced in Minneapolis last week is a breakthrough toward eventual reduction of a decade of litigation against the A. H. Robins Co.
As a result of the settlement, 198 women who used the intrauterine contraceptive device and their families were to receive checks ranging from $5,000 to $3 million from the Richmond pharmaceutical manufacturer, which sold nearly 4.6 million of the IUDs in 80 countries in the early 1970s.
The settlements are believed to average about $192,000. "We feel that the clients are very fully and adequately compensated in each case," plaintiffs' lawyer Roger P. Brosnahan said in an interview.
Sources said the total payout was $38 million. The agreement between the company and Brosnahan's law firm, Robins, Zelle, Larson & Kaplan of Minneapolis, forbids disclosure of the payout.
The law firm called a news conference last week to announce the settlement -- the largest so far in the Dalkon case -- after its attorneys had completed the last in a month-long series of consultations with their 198 clients.
All of the women claimed that the shield had caused them to suffer severe pelvic infections, loss of fertility and other injuries. Eleven of the women who became pregnant gave birth to children with birth defects, including blindness, cerebral palsy, mental retardation, and hydrocephalia. Two more clients bore children who died.
About 160 of the plaintiffs live in Minnesota, where more than 1,000 shield wearers -- more than in any state but California -- sued Robins. Now, fewer than 50 cases remain on federal and state court dockets in Minnesota.
Robins, Zelle lawyer Michael V. Ciresi told the news conference that the settlement agreement was unprecedented, partly because of provisions designed to ease settlement of thousand of other shield suits pending nationwide.
These provisions make Robins, Zelle available, at the request of A. H. Robins and plaintiffs' counsel, to evaluate the remaining complaints with a view toward recommending acceptable settlements. The law firm would be paid an hourly fee. Early this year, the firm settled two cases in which the drug company paid combined punitive damages of $2.05 million -- nearly $50,000 more than the plaintiffs had sought.
According to the drug company, the number of pending lawsuits was 3,552 as of Sept. 30. By then, the company and its insurer, Aetna Life & Casualty Co., had paid out $244.7 million to satisfy 13 court judgments and dispose of 6,276 suits and unlitigated claims.
By mid-1974, when the Food and Drug Administration asked Robins to halt sales, physicians had inserted an estimated 2.2 million shields in U.S. women.
"We hope that the agreement signals a change in the attitude of A. H. Robins from one of extending the litigation, and trying cases one at a time, to an attitude of trying to get this bad chapter in their history behind them," Brosnahan said. "And we hope it means they are going to try to fully and adequately compensate the victims of the Dalkon shield."
Brosnahan's criticism of Robins' shield defense record echoed the bitter courtroom denunciation of three Robins officers and the company by Miles W. Lord, the chief federal judge in Minnesota, last Feb. 29. Recently, the 8th Circuit Court of Appeals ruled that Lord had violated the constitutional right of the officers and the company to due process of law.
In Richmond, the company said that the "escalation in value" of the price of settling the 198 cases is "directly attributable to Robins' belief that Judge Miles Lord's public attacks and utterances over the past several months has so inflamed and prejudiced potential jurors that a fair and impartial trial for Robins in Minnesota is no longer possible."
By contrast, Brosnahan credited Lord with having "opened up the discovery process." Thanks to Lord and others on the Minnesota bench "the system worked" in Minnesota, Brosnahan said, although there had been a time when shield cases had "threatened to drown the system."
Brosnahan listed among the factors that produced a climate for the new settlement a court order under which Robins, Zelle was to take depositions from Robins' outside directors: E. Bruce Heilman, president of the University of Richmond; Carroll L. Sain, chairman of Central Fidelity Banks, and Stuart Shumate, retired president of the Richmond, Fredericksburg & Potomac Railroad Co.
Brosnahan said his law firm had been trying to track knowledge of shield safety issues to the highest level of the company.
The company announced Oct. 9 that it was spending $4 million on an advertising campaign urging U.S. women who may still be wearing shields to have examinations and removals, both at Robins' expense.