Date: Thu, 13 Apr 2000 20:49:39 -0700

Two-day appeals hearing over breast-implant settlement plan ends

By JIM SUHR

.c The Associated Press

DETROIT (AP) - Dow Corning Corp. and attorneys for thousands of women who sued it over silicone breast implants have no legal right to appeal a bankruptcy court's opinion now clouding a dlrs 3.2 billion implant settlement, an attorney for the U.S. government argued.

Randy Harwell made the claim in U.S. District Court as part of the second and final day of an appellate hearing largely over both the settlement deal approved by a federal bankruptcy judge Nov. 30 and that judge's written opinion three weeks later.

In that Dec. 21 opinion, U.S. Bankruptcy Judge Arthur Spector said women opposed to the settlement may sue Dow Corning's parent companies, Dow Chemical Co. and Corning Inc.

Dow Corning has asked U.S. District Judge Denise Page Hood to set aside Spector's opinion, which the company said dramatically changed and invalidated the settlement that took years to reach.

But Harwell said the failure by settlement proponents to legally challenge Spector's November confirmation of the deal within the required 10 days was ``a calculated legal risk'' they lost. To the government, a judge's written opinion now may not be appealed.

``They did nothing, and now they must pay the cost of doing nothing,'' Harwell said of those behind the settlement.

Glenn Gillett, another attorney for the government, accused the plan's proponents of ``forum shopping'' for ``a judge who might render an opinion more favorable to them.''

Hood said she hoped to decide that matter and related ones within 30 days.

``We're hopeful she will rule soon,'' Dow Corning spokesman T. Michael Jackson said afterward. ``The quicker it moves forward, the quicker there's closure.''

George Tarpley, an attorney for Dow Corning, has said the company was prepared to begin paying claimants, if Spector's opinion he called ``an error of law'' gets reversed.

On Wednesday, Tarpley said the opinion, if allowed to stand, could cripple the settlement approved by 94 percent of the 112,774 women who last year voted on it. The deal was part of Dow Corning's dlrs 4.5 billion plan to emerge from Chapter 11 bankruptcy sought in 1995.

Under the settlement, Dow Corning would pay out dlrs 3.2 billion to settle claims by more than 170,000 women blaming various health problems on silicone implants once made by the company.