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HIV-infected hemophiliacs consider settlement offer.

Members of the hemophiliac community have until October 15 to join a class action settlement offered by four major drug companies to people who were infected with HIV after using tainted blood-clotting products. At a preliminary fairness hearing on August 14, U.S. District Judge John F. Grady approved the offer for consideration. (In re Factor VIII or IX Concentrate Blood Products Litigation, MDL-986, 93-C 7452 (N.D. Ill. filed Dec. 7, 1993).)

If accepted, the settlement would become one of the largest mass tort settlements, amounting to about $640 million, paving each plaintiff about $100,000. If an insufficient number of people join the settlement, the offer may be withdrawn.

"It is not an easy choice," said David Shrager, the Philadelphia attorney who is lead counsel for the hemophiliacs. "There has been such a toll of emotion. Many people who have received claim forms are calling to ask, Why are you doing this? These are people who had closed this painful chapter in their lives and now find a terrible memory is being rekindled. "

What survivors do not want to recall is that between 1979 and 19S5 about 50 percent of the U.S. hemophiliac community became infected with the AIDS virus. "But they didn't know it," said Shrager. "They didn't become aware of what had actually happened until the last several years, and for many that was too late in terms of the statute of limitations. So this community, which had always coveted its privacy, found itself at a disadvantage in terms of its legal options."

Many of those infected during the early eighties have already died. Surviving family members are eligible for settlement payments, as are others who contracted HIV from a person with hemophilia. Shrager and others have estimated that about 6,000 people are eligible to participate in the settlement.

Hemophiliac groups have contended that the drug companies manufactured the clotting products from blood taken from drug abusers and others at high risk for AIDS and failed to heat the blood products to kill the virus. The companies contend that it was not clear at the time that heating would reliably kill the virus and not impair the effectiveness of the clotting products.

The drug companies involved in the case are Baxter International Inc. of Deerfield, Illinois; Miles Inc., a subsidiary of Germany's Bayer AG; the Armour Pharmaceuticals division of Rhone-Poulenc Rorer, a French firm; and Alpha Therapeutic Corp., a division of Japan's Green Cross Corp. Under terms of the settlement offer, the companies admit no guilt.

Individual cases brought by infected hemophiliacs have not fared well. According to Shrager, most individual plaintiffs have lost their cases, and those who have won had victories overturned on appeal. An earlier class action lawsuit, Wadleigh v. Rhone-Poulenc Rorer, was decertified. (No. 93 C 5969 N.D. Ill. (Aug. 5, 1994).)

So why do the pharmaceutical companies want to settle now?

"I think the companies want to make peace with the hemophiliac community," said Shrager. "These people, after all, are their customers."

Also, he said, after Wadleigh was decertified, a large number of individual lawsuits were filed. So the companies may now see it in their best interest to put as many of these suits as possible behind them.

"Many people wi71 join this settlement, and many should," said Shrager. "Overall, I'm terribly proud professionally that there is the prospect that this may work and still permit some number of people to pursue individual lawsuits."
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Title Annotation:In re Factor VIII or IX Concentrate Blood Products Litigation
Author:Dilworth, Donald C.
Date:Oct 1, 1996
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