A unanimous three-judge appeals court panel has struck down a planned $15 million emergency fund for older, infertile victims of the Dalkon Shield.
The appeals panel agreed that payouts under the emergency fund prior to the confirmation of a plan of reorganization for the A.H. Robins Co., which made the IUD in the early 1970s, would violate the federal bankruptcy code.
The ruling was a blow to women whose child-bearing capacity had been injured by the intrauterine contraceptive device, who are at or near the end of their child-bearing life span, and who hoped to get up to $15,000 each from the fund to pay for reconstructive surgery or in vitro fertilization.
For U.S. District Judge Robert R. Merhige Jr., the ruling was a rare reversal by the 4th U.S. Circuit Court of Appeals. Merhige presides in the Robins bankruptcy case.
He signed the order last May 21, mainly at the urging of the Dalkon Shield Claimants' Committee, the company and Ralph R. Mabey, the trustee in the case.
The appeals court had stayed Merhige's order at the request of a committee representing the holders of the approximately 58 percent of the common stock not owned by the Robins family. The largest single block -- 7.76 percent of the 24.17 million shares outstanding -- is owned by hedge funds managed by Wall Street wizard Michael H. Steinhardt.
Committee Counsel Robert M. Miller, asserting that the stockholders would suffer "irreparable injury" if payments were made on claims later found to be invalid, argued that the fund order would favor some creditors over others whose claims are legally equal, but who can't be paid until a financial reorganization plan for Robins is confirmed.
Merhige will begin a hearing today to resolve estimates of what tens of thousands of Dalkon Shield victims should be paid, and to determine the adequacy of the disclosure statement prepared by Robins for claimants.
The disclosure statement embodies a planned merger of Robins with Rorer Group Inc. Yesterday, the two companies announced that they have signed a definitive agreement for the acquisition, which would make Rorer the sixth-largest pharmaceutical manufacturer.