Hemophiliac class rejects settlement offer.

Hemophilliacs who contracted HIV from blood products that alleviate their condition first accepted and then rejected a $160 million settlement offer from two companies that make the products.

The surprising twist of events occurred over the summer in federal court in Chicago. The plaintiffs were seeking class certification in their negligence suit against the makers of blood-clotting products known as Factor VIII and Factor IX. The products were contaminated between 1982 and 1983 with the virus that causes AIDS, according to the suit. (Wadleigh v. Rhone-Poulenc Rorer, No. 93 C 5969, 1994 WL 460864 (N.D. Ill. (Aug. 5, 1994).)

Judge John Grady of the U.S. District Court for Northern Illinois had not yet ruled on the certification request when manufacturers Baxter International, Inc., and Armour Pharmaceutical Co., a division of Rhone-Poulenc Rorer, offered to settle the case out of court.

Under the settlement, each plaintiff was to receive about $30,000, said Massachusetts resident Jonathan Wadleigh, the lead plaintiff in the suit. Wadleigh said he and the other plaintiffs figured that many of them had little time left to live. A cash settlement would mean fast and badly needed money for the plaintiffs. If they went ahead with the lawsuit and class certification was not granted, the plaintiffs would essentially be on their own in the courts.

A committee of the plaintiffs convened and decided to opt for the sure thing - the settlement - on August 2. Both sides presented the agreement on August 5 to Grady, but instead of signing off on it, the judge made an announcement. He said he had already decided to grant class certification on the negligence issue to the plaintiffs.

"It was quite a revelation in the court-room," said plaintiffs' attorney Wayne Spivey of Philadelphia. "I think all of us were very surprised. This is one of those times when you say, |Be careful what you ask for because you just might get it."

Still, Wadleigh said the judge's announcement from the bench set up an anguishing set of circumstances for the plaintiffs.

"It was a very difficult decision because, for a lot of people who are really suffering right now, that money would have helped a lot," he said. "It would have meant the only money they would see before they died. But the settlement was awfully low. Too low. The decision to settle was made with considerable doubt and a lot of thought."

Spivey said the plaintiffs now have a shot at holding the fractionators, or manufacturers, fully accountable for the HIV infections and, in many cases, the subsequent deaths from AIDS. Discovery is continuing in the lawsuit.

"The class action is as much strategic as anything," Spivey said. "This increases the exposure of the defendants. It's not a panacea, but it's the only way to effectively try to do anything for this [hemophilia] community."

Between 6,000 and 8,000 of the estimated 20,000 people in the United States who have hemophilia are believed to have contracted HIV from the clothing factors in the early 1980s. Some 2,000 to 3,000 have died.

The manufacturcd blood products contain concentrated clotting factors from donated blood. They enable hemophiliacs, who lack natural blood-clotting factors, to control or prevent bleeding. Wadleigh explained that internal bleeding, in particular, poses serious, debilitating consequences for untreated people with hemophilia. The condition rarely is life-threatening, he said.

The class action suit was filed in September 1993 against Armour Pharmaceutical and Baxter International as well as two other fractionators, Alpha Therapeutic Corp. and Miles/Cutter. The latter two companies were not involved in the recent settlement talks.

The lawsuit also alleges that the National Hemophilia Foundation conspired with the fractionators to promote the use of the blood-clotting products for hemophiliacs while the foundation failed to disclose its knowledge of the dangers of AIDS and its economic ties to the fractionators.