RICHMOND -- An expert for Aetna Life & Casualty Co. testified yesterday that 91,000 Dalkon Shield victims are owed "full" compensation that would total $2.2 billion to $2.3 billion -- nearly double the $1.215 billion proposed for one-third as many victims by A.H. Robins Co., which manufactured the intrauterine contraceptive device in the early 1970s.
Aetna, which was the sole product liability insurer of the IUD, proposed the $2.2 billion to $2.3 billion primarily on the advice of Francine F. Rabinovitz, a leading expert in valuing personal-injury claims and a professor at the University of Southern California.
She, in turn, relied on three senior Aetna claims adjusters who, she said, "created history" with their "experienced judgment" that led the insurer to pay out hundreds of millions of dollars in shield settlements before Robins filed for voluntary bankruptcy 26 months ago.
Rabinovitz testified in an unusual six-hour Sunday session of a U.S. District Court shield claimants' "estimation" hearing, which enters its fifth day Monday.
After the hearing ends, U.S. District Judge Robert R. Merhige Jr. will sift through widely conflicting estimates to define "full" compensation -- that is, how much should be paid to how many women.
Before adjusting for such factors as statutes of limitations, Rabinovitz proposed nearly $2 billion for victims who have shown, mostly through medical records and questionnaires, that they had used the shields. Other women who would be assumed to have been harmed by the device would receive a total of an additional $482 million. Rabinovitz also allowed for 162,000 "nominal" payments of $100 each to persons who lack any significant support for their claims.
She testified that the Aetna adjusters were not biased and that their instructions had never been to "keep the price down," in the judge's words. She said they were simply asked to forecast from their experience what it would cost to resolve each claim.
Rabinovitz made few concessions in cross-examination, but Merhige indicated he would be more comfortable had her estimate for Aetna also been based on input from experienced shield plaintiffs and defense lawyers.
If approved by the judge, the Aetna proposal could potentially wipe out Robins stockholders' equity. The Robins family owns about 40 percent of the outstanding common shares. Outside stockholders control the rest. Here's how that could happen: The proposal doesn't include administrative expenses. Both Aetna and Robins suggest that 10 percent be added to the total for administrative costs, which would raise the higher Aetna recommendation of $2.3 billion to $2.53 billion. Under the proposed reorganization plan, which includes Rorer Group Inc.'s $2.65 billion acquisition of Robins, two trusts for shield-related claims with a combined value of $1.75 billion would be created. The $1.75 billion would cap Rorer's liability. However, the bankruptcy code requires that creditors be paid first, making the stockholders liable for the shortfall of $780 million -- about $80 million more than the estimated value of the existing shares under the acquisition proposal.
Aetna's role in the shield story is unusual.
In addition to having insured the shield, Aetna is a target of shield-related litigation, including a pending lawsuit in which the Dalkon Shield Claimants' Committee is suing the carrier for certain actions in settling claims and also in connection with allegedly unused shield insurance coverage.
On the other hand, Aetna has a claim for $57.4 million pending against Robins. The Aetna claim is the second-largest pending claim apart from the shield claims.
Yesterday's session began with a statistical expert's testimony for the committee of trade creditors, which mainly represents banks and suppliers, that proposes to pay "full" compensation of $1.632 billion primarily to 45,911 women with compensable injuries.
The creditors' committee expert was Thomas B. Crabill, a management consultant for Peat, Marwick, Main & Co.
Under questioning by creditors' committee lawyer Amy R. Wolff, Crabill testified that his estimate included administrative expenses and did not rule out claims for compensable injuries that may have had a cause other than the shield.
Under cross-examination by Stanley K. Joynes III, who represents so-called future claimants, Crabill said his proposal didn't allow for such claimants, who are women whose shield injuries have, or will, become known in the 14 years ending in the year 2000.
Crabill testified that he had screened out 7,713 women who have no records to show they had worn shields, although they have otherwise compensable injuries and have records showing insertion and/or removal of an IUD of some kind.
Claimants' committee lawyer Marc C. Ellenberg brought out that Crabill had assigned 82,940 persons who lacked medical records to the $100 category whether or not they filled out and swore to a 50-page questionnaire.endqua