Important note: Information in this article was accurate in 1996. The state of the art may have changed since the publication date.
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The Wall Street Journal - May 14, 1996
Thomas M. Burton, Staff Reporter of The Wall Street Journal
The large numbers of people balking could lead to the collapse of the proposal. The manufacturers had insisted that 95% of the more than 500 plaintiffs participate and that no more than 100 people "opt out" and pursue their own litigation. The companies, which also include Rhone-Poulenc Rorer Inc. and Green Cross Corp. of Japan, had characterized the proposal as a final offer.
However, the companies were meeting with lawyers for plaintiffs yesterday in Philadelphia, and few of the participants believed that the large numbers of no votes would result in the scuttling of the deal. They said the plaintiffs' side gave the manufacturers until Friday to revise their settlement proposal.
Various lawyers representing the people with hemophilia estimate that anywhere from half to a strong majority of their clients, in states that include Florida, Louisiana and New Jersey, have decided to reject the settlement offer. The tentative proposal, made last month, would provide about $100,000 to people infected with the AIDS virus or to families of those people who have died. The lawyers, who asked not to be identified, said the companies' insistence on limiting the number of "opt-out" cases has become a major stumbling block to the proposal.
It's estimated that between 6,000 to 10,000 people in the U.S. were infected and that 3,000 or more have died as a result of the clotting products for hemophiliacs, known as Factor VIII and Factor IX. The lawsuits primarily result from blood products taken between 1982 and 1985. The plaintiffs contend manufacturers knew that these products, derived from the pooled blood plasma of thousands of donors, were contaminated with viruses like hepatitis B and hepatitis C, and that manufacturers should have acted much sooner to cleanse their products of all viruses. Companies contend that, because the AIDS virus wasn't isolated during much of the time in question, they couldn't have known that AIDS was blood-borne.
People involved in the talks say that Baxter was willing to make an unconditional offer to the hemophilia community, but that Bayer insisted on imposing the conditions. As a result, said one of the negotiators for plaintiffs, the "offer as it currently exists was stillborn" when the companies made it. A Bayer spokeswoman responded that the manufacturers had engaged in a "consistently united effort" and that she didn't know of any such split among the companies. Baxter declined to comment on whether there was a split.
So far, 39 of the U.S. lawsuits have gone to verdicts, nearly all of them in favor of the companies. However, other cases have resulted in settlements, and plaintiffs contend their cases are stronger now than they were at the time of previous verdicts. In several states, statutes of limitations have worked to block lawsuits by people who contracted the AIDS virus several years ago and didn't immediately file lawsuits.
People involved in the U.S. talks say one reason Americans are tending to reject the offer is that manufacturers that sold the same products in Japan offered some $250,000 per person to settle litigation there, and that the Japanese government offered to pay approximately $200,000 more per person as part of that settlement. However, the cases are different in Japan because the Japanese government delayed approval there of a newer product that inactivated viruses.
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