RICHMOND, NOV. 11 -- The judge in charge of the A.H. Robins Co. bankruptcy case hopes to announce within two weeks the amount of money that will constitute full compensation for tens of thousands of victims of the Dalkon Shield intrauterine contraceptive device.
U.S. District Judge Robert R. Merhige Jr. disclosed his timetable before listening to closing arguments in a six-day hearing at which he heard total compensation estimates, ranging from the company's $1.2 billion to the Dalkon Shield claimants' committee's range of $4.2 billion to $7.17 billion. There are similar wide variations in estimates of the number of women owed significant sums.
Merhige said he wanted to announce the court's estimate before writing a full opinion to clear the air.
His estimate will immediately affect Robins' financial reorganization plan, which reflects the proposed acquisition of Robins by Rorer Group Inc. for $2.6 billion. Under the plan, IUD-related claims would be resolved with payments from two trusts capped at $2.015 billion -- $1.75 billion in current dollars.
A separate hearing began this afternoon on the disclosure statement that Robins proposes to send to IUD claimants and other creditors who will vote on whether to confirm the plan, but it was recessed until next month. The issues include the adequacy and fairness of the statement and whether it is written in plain language.
During closing arguments, Merhige said that "if the court errs, it must be on the creditors' side. That just makes sense." Creditors are preferred over stockholders in a Chapter 11 case. Under the reorganization plan, all of the stockholders together would be restricted to 25 percent of Rorer's purchase price.
The closing arguments were marked by sharp and sometimes bitter differences among opposing parties, particularly the company and the claimants' committee.
But agreement that $1.75 billion is the maximum fair and full compensation for valid claims was expressed by counsel for Robins and for the bankruptcy committees representing trade creditors and the outside stockholders. These lawyers argued that Merhige should give much weight to the fact that each of their statistical experts independently drew from a common data base dollar estimates in the same ballpark.
Company counsel James C. Roberts on four occasions accused the claimants' committee expert of using "smoke and mirrors" to reach the $7 billion estimate.
By contrast, claimants' committee lawyer Mark C. Ellenberg accused his adversaries of assigning arbitrary and trivial values to tens of thousands of injury claims, and argued that only his expert had matched injuries and documentation to the prebankruptcy pattern of settlements established in the common data base. "There is no rational way to find an estimate under $3 billion, certainly not under $2 billion," Ellenberg said.
Other than the claimants' committee, the only party urging Merhige to estimate more than $1.75 billion is Aetna Life & Casualty Co., which insured the IUD and has paid out hundreds of millions of dollars to settle injury claims.
For Aetna, W. Scott Street III urged Merhige to endorse the insurer's proposal to pay $2.2 billion to $2.3 billion.
He emphasized that only Aetna's expert relied on "actual experience in the real world," referring to the three senior claims adjusters who decided how much it would cost to settle each of thousands of claims.
Ellenberg called the Aetna estimate "too low," and said of claims adjusters, "It's in their blood to be low."
"Born to be low," the judge quipped. "Is that it?"
The huge gaps among the estimates mainly involve claimants who lack medical records to document injuries and who did not return a sworn 50-page questionnaire.
Robins allowed for 99 future claimants -- women whose IUD-related injuries have or will become known in the 14 years ending in the year 2,000.
But the future claimants' committee contended that questionable assumptions by the company had excluded 113,000 potential future claimants.