Allergan Refuses to Pay for Surgery to Remove Breast Implants Linked to Cancer

December 1, 2020, 9:30AM. By Anne Wallace

Don’t sign ANYTHING until you speak with your lawyer

Hackensack, NJ Jody Craft has now joined the growing number of women who have filed lawsuits seeking compensation for the harm Allegan USA, Inc. allegedly caused by marketing textured breast implants now linked to breast implant-associated anaplastic large cell lymphoma (BIA-ALCL). BIA-ALCL is a rare form of cancer seen almost exclusively in women who have received textured breast implants.

Her Complaint highlights a particular issue; Allergan has refused to cover the cost of surgical removal of the implants in women who have not yet developed cancer. Some reports suggest that Allergan may be using the offer of surgical removal costs to induce participants in the multidistrict litigation (MDL) to settle their claims for far less than they might be worth in a successful BIA-ALCL lawsuit.

An important word of warning to potential plaintiffs – don’t sign anything without the chance to speak with your lawyer first.

Jody Craft’s dilemma 

In 2013, Jody Craft had surgery to place Allergen’s Natrelle Biocell rough textured silicone breast implants into her body. She became aware of Allergan’s recall of the implants in 2019. They were recalled because of the increased risk of BIA-ALCL. She, herself, has not been diagnosed with BIA-ALCL, but her doctor advised her that the best way to avoid the disease was to have the implants removed. She chose to have them taken out, but Allergan refused to pay for the removal surgery.

Ms. Craft was, at least, able to afford the operation. Other implant patients have not been so lucky. Lori Seuzeneau, who filed a breast cancer implant lawsuit in July had to leave her dangerous implants in place because she could not afford to have them removed. Allergan’s refusal pay for their removal may endanger her health.

BIA-ALCL can be fatal, especially if not diagnosed early or promptly treated. Treatment involves surgically removing the implant and surrounding scar tissue. Some patients also require chemotherapy and radiation treatments. It is important to recognize that breast implant side effects may not occur until years after their placement.

A fast offer of easy money? 

As part of its 2019 recall, under its product warranty, Allergan has offered to cover the cost of:

• new, smooth Biocell replacement devices;
• up to $1,000 for diagnostic tests; and
• up to $7,500 for cancer surgery.

There are several potential problems: 

• the offer is good only until July 24, 2021, long before the end of the observed latency period for BIA-ALCL;
• the July 2021 date is also likely long before decisions will have been made in the bellwether trials that will eventually begin in the MDL. These early trials are likely to give the patients a sense of the possible recoveries or settlements that may be forthcoming from their lawsuits;
• in exchange for the money, potential plaintiffs are reportedly being asked to waive their right to bring breast cancer implant lawsuits against Allergan;
• even before the deadline and subject to the waiver requirement, Allergan will not provide surgical fee assistance to patients who have no symptoms of BIA-ALCL.

Allergan, on the other hand, stands to benefit handsomely if the payments offered are less than their likely losses in the looming BIA-ALCL lawsuits. It is a straight-up loss-reduction effort on the company’s part.

Reports have begun to surface that suggest that attorneys for Allergen are pressuring potential plaintiffs in the MDL to accept this offer and asking doctors to encourage their patients to do so. Even without further corroboration, the reports of these pressure techniques are fairly plausible; this is a well-known gambit among defense attorneys in product liability and defective medical device litigation.  

Reasons to hang on

Here are two things to keep in mind.

Number one: There may be circumstances in which Allergan’s product warranty offer would benefit a particular plaintiff. This is not, however, a decision that should be made in haste, under pressure or without complete information. The first rule for potential plaintiffs in the Allergan breast cancer litigation is to sign nothing, even if it appears to contain nothing but routine small print, before speaking with an attorney.

Number two:  The MDL is still in early stages. Ultimately, hundreds of patients are expected to file claims, and bellwether trials are yet to be selected or scheduled. One possible indicator of the size of the potential litigation is the Master Short-Form Complaint form filed on behalf of Jody Craft. The fact that a form has been devised suggests that the process of participating in the MDL has become routinized to accommodate a large number of plaintiffs.

The “check-the-box” Causes of Action section that describes a plaintiff’s grounds from bringing the lawsuit lists fourteen possibilities, including:

• Strict liability counts for manufacturing, design defects and failure to warn;
• Negligent manufacturing, design and failure to warn, as well as general negligence;
• Breach of warranty claims;
• Wrongful death;
• Loss of consortium; and
• Punitive damages.

Not every individual claim with include the same counts, but plaintiffs have plenty of room to run, and the court is clearly making it easier and less expensive for them to file claims.