MINUTES OF THE

SENATE Committee on Commerce and Labor

 

Seventy-First Session

June 1, 2001

The Senate Committee on Commerce and Laborwas called to order by Chairman Randolph J. Townsend, at 8:30 a.m., on Friday, June 1, 2001, in Room 2135 of the Legislative Building, Carson City, Nevada.  The meeting was video conferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Attendance Roster.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Randolph J. Townsend, Chairman

Senator Dean A. Rhoads

Senator Mark Amodei

Senator Raymond C. Shaffer

Senator Maggie Carlton

COMMITTEE MEMBERS ABSENT:

Senator Michael A. (Mike) Schneider

Senator Ann O’Connell, Vice Chairman

GUEST LEGISLATORS PRESENT:

Assemblywoman Ellen Koivisto, Clark County Assembly District No. 14

STAFF MEMBERS PRESENT:

Scott Young, Committee Policy Analyst

Jude Greytak, Committee Secretary

OTHERS PRESENT:

Kimberly Maxson Rushton, Legislative Liaison, Office of the Attorney General

Robert Barengo, Lobbyist, Dow Chemical Company

Stuart Bondurant, M.D., Professor of Medicine and Dean Emeritus, School of             Medicine, University of North Carolina, Chapel Hill

Roger Herdman, M.D., Study Director, Committee on the Safety of Silicone             Breast Implants

Geoffrey White, Attorney

Roy Cannon, Attorney

Raymond Bacon, Lobbyist, Nevada Manufactures Association

Mary Lau, Lobbyist, Retail Association of Nevada

Kami L. Dempsey, Lobbyist, Las Vegas Chamber of Commerce

Frank W. Daykin, Attorney

Brenda J. Erdoes, Legislative Counsel, Legal Division, Legislative Counsel Bureau

Caroline Bromm, Concerned Citizen

William L. Keane, Deputy Legislative Counsel, Legal Division, Legislative Counsel

            Bureau

Fred L. Hillerby, Lobbyist, Dow Chemical Company

Chairman Townsend opened the hearing on Assembly Bill (A.B.) 667.

ASSEMBLY BILL 667:  Revives for limited time certain causes of action based             on effects of silicone injected or implanted into body. (BDR 2-1559)

Kimberly Rushton, Legislative Liaison, Office of the Attorney General, stated Attorney General Frankie Sue Del Papa has been an outspoken advocate for consumer protection and safety issues.  Ms. Rushton said the phone calls,       e-mails, and requests for appointments with the attorney general in support of A.B. 667 were overwhelming.  She asserted, these citizens have suffered for years.  She asserted as a result of the global settlement and the bankruptcy that followed, the extension of the statute of limitations for 1 year is absolutely necessary for the victims to go back to the court and demonstrate they were misled, information was not provided to them, and they have a legal cause of action against the Dow Chemical Company.  She declared the committee cannot alleviate the physical damage and pain these victims have suffered.  She stated these Nevada citizens are asking for the opportunity to demonstrate what silicone can do to the human body.  Ms. Rushton strongly urged the committee to pass A.B. 667.  She concluded the citizens are only asking for a 1-year extension, which pales in comparison to the pain and suffering the injured have endured.

 

Chairman Townsend stated the Senate Committee on Commerce and Labor will need some help deciphering the legal ramifications of A.B. 667.  He said the committee also have testimony by telephone from some doctors. 

Robert Barengo, Lobbyist, The Dow Chemical Company, testified, the doctors are from an independent organization which has no connection with either side in this matter.  He noted Mr. White had referenced them in earlier testimony.

 

Stuart Bondurant, M.D., Professor of Medicine and Dean Emeritus, School of Medicine, University of North Carolina, Chapel Hill, testified by telephone, stating he chaired the Committee on the Safety of Silicone Breast Implants, which was requested by the United States Congress.  He said the United States Congress asked the federal Department of Health and Human Services to undertake a study of the safety of silicone breast implants because of the controversy that surrounded this issue.  He stated the Institute of Medicine of the National Academy of Sciences assembled a committee, which was carefully screened for any conflict of interest, but was also expert in the scientific basis for litigation.  For example, Dr. Bondurant said, the committee included a plastic surgeon, but the Department of Health and Human Sciences chose a pediatric plastic surgeon who had no conflict of interest with respect to breast implants.  He added the committee also included some of the nation’s leading chemists in silicone chemistry, toxicologists, and clinicians of various other persuasions.  He stated the committee was financed by a grant from the federal Department of Health and Human Services. He said the committee met for about 1½ years and produced a report titled The Safety of Silicone Breast Implants.  This report, he stated, is a 400 to 500 page book and is available through the Institute of Medicine of the National Academy of Sciences.  He added the report has about 200 pages of bibliographical references. 

 

Dr. Bondurant explained the committee reviewed the entire world’s literature regarding silicone breast implants.  He said the committee concluded it could find no evidence to satisfy the minimum scientific requirement for an association between silicone breast implants and cancer, any association with connective tissue disease of any kind, or of neurological disease of any kind, or of any unidentified disease of any kind.  Nor could the committee find any association between silicone breast implants and any pathology in infants or children as a result of nursing from women who had silicone breast implants, he added.  He testified it was the judgment of the Committee on the Safety of Silicone Breast Implants the world literature did not substantiate any association between silicone breast implants and any of these pathologic conditions. 

 

Dr. Bondurant added the committee held public meetings and invited testimony from many women who were clearly quite ill, and who were convinced their illnesses were due to the silicone breast implants.  He commented the committee was deeply moved by the suffering of these women.  He stated there is no question women with silicone breast implants are suffering; the problem is so many women have silicone breast implants, it would be expected many of them would have cancer, lupus, connective tissue disease, and other ailments.  However, he stated, studies pertaining to breast implants provide no evidence there is a greater instance of any of these diseases among woman with silicone breast implants than among women without silicone breast implants.

 

Dr. Bondurant continued, stating there are several related studies, which show the same conclusion; one was by a panel appointed by United States District Judge Samuel Pointer Jr.   Dr. Bondurant said the results of that panel are published in the New England Journal of Medicine.  He added the United Kingdom had a committee called the Independent Review Group, which also came to the same conclusion as his committee.  He said the Independent Review Group studied all the data from the United Kingdom, and all the experience from the nation of Sweden, which has especially good public health data because Sweden tracks every patient, and there have been a fair number of silicone breast implants.  He concluded, reflecting on the consensus of the world scientific community, there is not sufficient evidence to establish a relationship between silicone breast implants and any diseases. 

 

Roger Herdman, M.D., Study Director, Committee on the Safety of Silicone Breast Implants, also testified by telephone.  Dr. Herdman stated he is a pediatrician, and at the time of the study was a senior scholar at the Institute of Medicine, which is a part of the nonprofit, nongovernmental National Academy of Sciences.  He explained Congress established the National Academy of Sciences in 1863 to provide technical advice to the United States government and to the public.  He declared he and Dr. Bondurant are not proponents of this legislation and take no position for or against.  He added he does not even know what the proposed legislation is. 

 

Dr. Herdman stated at the time of the committee’s study there were approximately 2 million women who had received silicone breast implants.  He said every year about 200,000 women are added to this number in the United States, so the procedure is quite common.  He commented, in any group this large there will be a number of different medical conditions present whether or not the women have had silicone breast implants.  He added the Institute of Medicine study also investigated the issue of silicone injections, which were administered to as many as 40,000 women in Las Vegas after World War II.  He stated those injections were of unknown silicones, and some evidence suggests the use of Dow Corning 360.  He noted the study committee reviewed all existing reports on silicone injections, and most reports indicated the injected silicones were adulterated with other substances causing an inflammatory reaction, which would cause the silicone to remain in place and not travel through the tissues.  He emphasized the silicone injected at that time is not the same as the silicone used in breast implants since 1962.  He noted though there were breast implants made of other hazardous substances earlier, silicone was first used in breast implants in 1962. 

 

Dr. Herdman said silicone injections were always illegal in Nevada and the state made the practice of silicone injections a felony in 1976.  He emphasized silicone injections were never approved by the Food and Drug Administration (FDA).  He reiterated silicone injections with unknown substances are extremely dangerous and are a completely different procedure from silicone implants. 

 

Dr. Herdman stated silicones are a large family of substances.  He noted many silicones are found in everyone’s environment; they are and included as FDA approved substances in foods and medications, given to children to treat colic, and used as a lubricant for syringes.  He said silicones are present in the air from cosmetic products such as hair sprays and skin creams, and also used in many industrial products.  He said exposure to silicones is ubiquitous in all developed countries.  Dr. Herdman concluded, when women with silicone breast implants claim they have silicone in their bodies, this is true; however, the amount of silicone in the people who do not have silicone breast implants is no different, except for the silicone encapsulated in the implant.

 

Senator Carlton asked Dr. Bondurant and Dr. Herdman who funded the studies they performed.

 

Dr. Herdman stated as far as he knows the Institute of Medicine does not receive funds from the Dow Chemical Company for support.  He stated the study cost approximately $800,000 or $900,000 and was entirely funded by the federal government including: the National Institute of Health, the Food and Drug Administration, the Centers for Disease Control and Prevention, the National Cancer Institute, National Institute of Arthritis and Musculoskeletal and Skin Diseases, the National Institute of Allergy and Infectious Diseases, and the Office of the Assistant Secretary for Planning and Evaluations.  Dr. Herdman reiterated those were the only sources of funding for the study.

 

Senator Carlton stated since their study, there have been other studies released, one  last month from the National Institutes of Health and the Food and Drug Administration showing there is increased incidence of autoimmune disease in women with ruptured breast implants.  She commented some doctors are not agreeing.  She asked the doctors how they could come up with opposite conclusions.

 

Dr. Bondurant responded the Institute of Medicine committee analyzed all the literature in the world and published its report, but the  committee has not met recently to consider the new work to which Senator Carlton referred.  He stated, therefore, he cannot testify on that matter on behalf of the committee. 

 

Senator Carlton noted the Food and Drug Administration recommended women should be warned there may be a risk based on the study she mentioned.  She added the FDA removed silicone breast implants from the market 9 years ago.  She asked whether they are considered safe, and why they have been totally removed from the market and have not been allowed back on the market. 

 

Dr. Herman stated in 1992 the FDA proposed a moratorium on the sale of silicone gel breast implants and left saline-filled implants on the market.  He said since then silicone gel breast implants have been sold and implanted in woman under the terms of an adjunct study.  He stated tens of thousands of silicone gel breast implants have been implanted since 1992, primarily for reconstruction after a mastectomy.  Dr. Herdman declared he is speaking on his own behalf and not as a representative of the Committee on the Safety of Silicone Breast Implants.  He stated the FDA is now considering premarket approval applications from manufacturers for the approval of silicone gel implants.  He stated the reason the implants were removed from the market in 1992 is not because they were known to be dangerous, but because they did not meet the terms of the 1976 medical devices amendments, which require the manufacturer to submit evidence of their safety.  He reported the manufacturer had not submitted the necessary data, and the implants were removed from the market.

 

 

 

Senator Carlton asked Dr. Herdman if he just said the manufacturers had not submitted the data, and, therefore, that is the reason some of these devices are no longer being sold.

 

Dr. Herdman replied these devices are being sold and implanted.  He stated the premarket approval application has not been completed to the satisfaction of the FDA.  He stated he believes the manufacturers have now submitted the applications, and they are currently under review by the FDA.

 

Dr. Bondurant added those FDA considerations apply only to the use of gel implants for augmentation of breast size, and currently gel implants for reconstruction after breast cancer surgery are widely used.

 

Geoffrey White, Attorney, advocate for A.B. 667,  testified Dr. Bonduant was quoted in the press in June 1999 as saying the evidence at that time did not support a conclusion or an association, and the safety committee report should not be considered definitive or the last word.  He added in May of 2001 a study by the National Institutes of Health showed women with breast implants have an increased incidence of fibromyalgia and other connective tissue diseases, which were diagnosed by magnetic resonance imaging.  He noted Dr. Bondurant also stated there was not an increased incidence of cancer among women who had silicone gel implants, but the recent taxpayer-funded National Institutes of Health study did find increased incidences of respiratory and brain cancer among women with breast implants.

 

Dr. Bondurant stated he is familiar with the literature but emphasized he is expressing a personal opinion, and the committee has not reviewed these most recent studies as a whole.  He said the committee considered a very large number of studies and weighted them according to the quality of the work, how carefully they were designed, how carefully the data was collected, how critically it was analyzed, and how representative the populations were that were studied.  He noted it is extremely important that the populations being compared are similar.  Dr. Bondurant stated the committee was nearly  unanimous on these judgments.  As an example, he noted approximately         16 connective tissue disease studies all came to the same conclusion.             He stated the studies Mr. White mentioned constitute a suggestion.                  Dr. Bondurant noted, however, the exact words of the authors in both of those studies hedge by saying their results could be due to chance.  He acknowledged the experimental design suggests the possibility these studies’ conclusions could be due to chance.  He stated there are many more studies comparing much larger numbers of women that have not reached those same findings.  He commented he would not change the conclusion of the Committee on the Safety of Silicone Breast Implants based on the findings of those recent studies.

 

Dr. Herdman testified the National Cancer Institute study performed by      Louise A. Brinton, Ph.D., Chief, Environmental Epidemiology Branch, Division of Cancer Epidemiology and Genetics, National Cancer Institute, compared women with silicone breast implant surgeries with women with other nonsilicone plastic surgery procedures and the United States incidence data of cancer and mortality.  Dr. Herdman noted the findings were not uniform within the study.  He also noted the smoking histories were incomplete.  He stated because smoking causes 85 percent of the lung cancer in women in this country, the lack of smoking history raises the question as to whether the respiratory cancer figures were valid. 

 

Dr. Herdman mentioned two other studies have found elevated incidences of respiratory cancers in women with breast implants.  He added since 22 cancers were looked at in the National Cancer Institute study, the only other cancer incidence which was elevated was brain cancer, and that finding could be due to chance.  Dr. Herdman called attention to an extensive study in Los Angeles over 14 or 15 years, which did not find an elevated number of brain tumors.  He added there is a substantial body of experimental evidence in animals with exposure to silicone in which no neurological irregularities were found.             Dr. Herdman maintained the fact there were such a substantial number of studies preceding this study, using careful research designs and using large numbers over considerable periods of time, leaves the issue as to whether the recent National Cancer Institute study is a chance finding.  He commented he agrees this is an interesting finding, but he said he believes it does not refute decades of work that preceded it with very thorough studies.  Dr. Herdman stated the same could be said about the Dr. S. Lori Brown study for fibromyalgia for the Food and Drug Administration.  He noted fibromyalgia is not a classical connective tissue disease.  Dr. Herdman said there was a question as to how Dr. Brown divided the ruptured implant group into intracapsular and extracapsular ruptures, but Dr. Brown did not consider the intracapsular ruptures in her comparison of ruptures with other women, which gave her the positive fibromyalgia incidence finding.  Dr. Herdman noted 16 studies before this had found no relationship between breast implants and connective tissue diseases.

Mr. White asked Dr. Herdman whether it is true those 16 studies to which he referred were either funded or contributed to by the manufacturers, and whether Dow Corning’s attorneys were allowed to look at the protocols of those studies before the questionnaires went out to the women.

 

Dr. Herdman stated the studies the institute reviewed came from reputable places like Harvard University and were published in reputable journals like the New England Journal of Medicine, which has a policy of disclosure of funding sources.  He stated the Committee on the Safety of Silicone Breast Implants looked at the science, whether there was a good research design, and whether reputable people performed the study.  He stated he has trouble believing the doctors from Harvard University submitted their designs to anyone, except for peer review, before beginning their studies.

 

Dr. Bondurant stated the Committee on the Safety of Silicone Breast Implants was aware industry had supported studies, but not specifically which studies.  He said there were a significant amount of studies that did not have industry support.  He stated the committee reviewed many international studies, which were done on behalf of the people of those countries, and not supported in any way by industry.  He said studies from Sweden, the United Kingdom, Holland, and a study performed by the European Union produced the same results, and were not supported in any way by industry.

 

Mr. White commented the study from the Committee on the Safety of Silicone Breast Implants had warned against the danger of ruptured implants.

 

Dr. Bonderant stated the committee felt strongly the attention paid to the diseases had drawn attention away from the serious problem of local complications from the surgery itself, which produces the highest morbidity. 

 

Roy Cannon, Attorney, representing a number of women who had silicone injections, reiterated Dr. Bondurant had just testified the Committee on the Safety of Silicone Breast Implants was concerned about localized reactions, particularly in the event of a ruptured implant.  He asked Dr. Bondurant whether this is correct. 

 

Dr. Bondurant answered no, there are a host of other local reactions, and the committee was more concerned about short-term local reactions such as infection, bleeding, fluid gathering around the implant, or contracture of the capsules, which cause painful and distorted breasts and also rupture.  He said the effects being most ignored were the immediate effects of surgery.

 

Mr. Cannon said silicone gel or fluid has never been approved by the FDA for anything other than clinical trials.  He asked Dr. Bondurant if this were true.

 

Dr. Bondurant stated no, there are many other prosthetics, in addition to breasts, which contain silicone, including cardiac pacemakers.

 

Mr. Cannon interjected he was limiting his question to silicone gel or fluid.

 

Dr. Bondurant stated he believed that to be true, but said a lubricant for syringes is a type of liquid silicone, and, for instance, diabetics who inject themselves are exposed to this liquid silicone every time they have an injection.  He stated he presumes this has FDA approval.  Dr. Herdman added the medications given to children for colic also contain fluid silicone. 

 

Mr. Cannon asked whether the studies reviewed by the committee included animal studies, which show silicone migrates in the body.

 

Dr. Herdman stated there are some long-term animal studies where the gel contained in silicone breast implants was injected under the skin of animals and labeled with radioactive tracers.  He said the animals were examined periodically, and of the 500,000 micrograms of silicone gel injected under the skin, only approximately 30 micrograms were found in other organs.

 

Mr. Cannon asked whether these were the studies conducted in 1960s.         Dr. Herdman answered no, the study to which he referred was recent.

 

Mr. Cannon asked whether they had reviewed the Dow Corning studies from the 1960’s.  Dr. Herdman answered yes, but he does not refer to them as the “Dow Corning studies.”  He stated he refers to them by their author and by the journals in which they appeared.

 

Mr. Cannon asked whether those studies also showed some migration.           Dr. Herdman answered yes, but it depends on which kind of silicone was injected.  Dr. Herdman explained, in general, the silicones with extremely low molecular weight, the ones with one or two polymer units, did have a tendency to migrate.

Raymond Bacon, Lobbyist, Nevada Manufactures Association, testified the Nevada Manufacturers Association believes extending the statute of limitations is a bad policy.  He presented the committee with a statement (Exhibit C), which is a response to previous testimony.  He stated the scientific evidence does not support the cause and effect relationship.  He said Nevada’s normal 2‑year statute of limitations has been delayed up to three times longer due to the Dow Corning bankruptcy.  He said Nevada law cannot supercede the federal bankruptcy proceedings.  He added the prior history of bills like A.B. 667 suggests this bill would be a burden on state courts, because all of the cases that have opted out of the global settlement have not gone to federal courts, but have been heard in state courts.  He noted there are roughly 800 such cases in Nevada.  He urged the committee to vote against A.B. 667.  He commented he understands women are suffering, but stated to go back to the manufacturers after 35 years, with a clouded past, would be impossible.  He noted there is no way to tell whether the problem was caused by Dow Corning or whether the doctor using a nonmedical grade of silicone caused it.

 

Mary Lau, Lobbyist, Retail Association of Nevada, stated it grieves her to testify in opposition to A.B. 667 due to her high regard for Assemblywoman Koivisto (Assemblywoman Ellen Marie Koivisto, Clark County Assembly District No. 14), and her feelings for the women who have come in support of the bill.  However, she stated, modifying Nevada’s statutes of limitations could have a detrimental effect on Nevada’s economic development.  Ms. Lau stated according to a 1991 American Bar Association report, Nevada is considered one of the top    10 states friendly to plaintiffs in litigation.  She stated she is sympathetic to the women’s cause, but noted the real issue is the modification of the statue of limitations. 

 

Ms. Lau stressed the emotional issue should not overrule the reasonable practicality.  She stated the purpose of the statute of limitations is to ensure all parties receive a fair trial.  She said these women have been provided numerous opportunities for adequate remedies under the law, and the statute of limitations has already been extended to accommodate claims under the global settlements.  Ms. Lau commented she does not understand why another extension would be necessary.  She noted this would send the negative message Nevada’s legal system is unstable to prospective businesses the state is currently trying to attract.  She said when the association markets to         out-of-state corporations, it offers them a list of assurances including Nevada’s economy, its business climate, and its laws.  Ms. Lau stated corporations are reluctant to move to a state where there is a possibility of increased liability.  Ms. Lau stressed the passage of A.B. 667 would set a precedent for the waiver of the statute of limitations, which would attract numerous other groups to come before the Legislature to plead that their cases are also exceptional.  

 

Kami L. Dempsey, Lobbyist, Las Vegas Chamber of Commerce, testified she is extremely sympathetic to the women who have experienced problems, but she  views the issue as a policy matter.  She said the chamber believes A.B. 667 sets a dangerous precedent, which would allow the statute of limitations to be waived in other cases, such as medical malpractice, public park liability, and corporate liability.  She stated she fears this legislation could open the floodgates to eliminate the statute of limitations.  Ms. Dempsey noted this extension of the statute of limitations could also be used in other states, if the court considers it appropriate, and if it is considered relevant to the dispute.  Ms. Dempsey added A.B. 667 could be expanded to disputes brought against doctors, nurses, and other hospital staff who participated in surgeries.  She stated this bill could also be extended to claims already dismissed by a court as untimely.  Ms. Dempsey said under this bill, a woman who is in the middle of litigation and does not feel confident about the outcome of her case, could voluntarily dismiss her action and refile under this extension, hoping for a more favorable outcome.  She stated the chamber believes this would burden the court system.  She pointed out this bill is not limited to current Nevada residents, and people may move here in order to file a case in Nevada.          Ms. Dempsey reiterated the Las Vegas Chamber of Commerce opposes         A.B. 667 based on policy.

 

Frank W. Daykin, Attorney, testified the statute of limitations is to bar actions after a certain time has elapsed.  He stated the reason for this is memories fade, evidence disappears, et cetera.  Mr. Daykin noted the statutes of limitations are notably shorter in the western states than they are in the midwestern or eastern states.  He said the statute of limitations for a civil wrong is generally 2 years.  He stated ARTICLE 4, section 20, of the Nevada state Constitution contains a list of subjects upon which the Legislature may not enact a local or special law.  He said section 21 of the Nevada Constitution says, for any subject not on the list, the Legislature may not enact a local or special law if a general law can be made applicable.  He stated one of the subjects in this section is regulating the proceedings of courts of justice.  He said a statute of limitations is procedural, and, therefore, would be considered regulating the proceedings of courts of justice.  Mr. Daykin said if a statute purports to describe a class, the Nevada Supreme Court may consider it a relatively small number or a class of people.  He noted A.B. 667 is well drafted, it carefully defines a class, and it does not directly contradict the Nevada Constitution.  Mr. Daykin stated he does not know how many people would fall under the definition of the class, but he believes the number of defendants is quite small.  He said according to a letter submitted by Mr. White, the number of defendants is only one, which is Dow Chemical Company and its subsidiary, Dow Corning.  Mr. Daykin noted         A.B. 667 specifically excludes medical malpractice, the state, or any political subdivision.  He cited a case from the 1870’s, State v. California Mining Company, where the Nevada Supreme Court overturned a special statute framed in general terms, but affecting a very small number of mining companies.  Mr. Daykin stated it appears A.B. 667 is also legislation targeting a small number of specific defendants.

 

Mr. Barengo declared when he appeared before the Assembly hearing on      May 23 he testified he had not been retained by Dow Chemical Company at that time, and he was waiting for an official letter of employment from them.  He said he wanted to make this statement to dispel rumors he had solicited Dow Chemical Company as a client.

 

Mr. Barengo stated this is the first time the opponents of the bill have been allowed to testify.  He said the bill was introduced by emergency request on May 22, 2001, a hearing was held on May 23, and the bill was amended and passed on May 24.  He pointed out the proponents have been present since the beginning, yet the opponents were only notified by a chance phone call.         Mr. Barengo commented the system was set up to allow both sides the opportunity to be heard, and he opined this bill was handled hastily and poorly. 

 

Mr. Barengo presented the committee with a handout containing various documents regarding A.B. 667 (Exhibit D.  Original is on file in the Research Library.).  He stated the exception to the statute of limitations, which was referred to by Mr. White “as a window of opportunity,” may be an opportunity for one group, but clearly would be at the expense of the other party involved.  Mr. Barengo referred to a document (from Exhibit D) titled “Reopening State Statutes of Limitations,” which was published by the American Legislative Exchange Council in February 1997.  He summarized the article, explaining the problems and policy issues involved in reopening a statute of limitations.         He read the last paragraph on page 2 of the article, which contends the reopening of a statute of limitations upsets the balance of protection in the law between the seller and the consumer. 

 

Mr. Barengo stated the proponents claim this is merely an extension of the time, but he said this “emergency” legislation would gut the judicial process.          He asserted, if someone is sued, he or she has the right under the rules of civil procedure to allege certain defenses, including the statute of limitations.        He stated A.B. 667 would take away from the manufacturer the defensive tool of the statute of limitations.  Mr. Barengo added one of these manufacturers is domiciled in Nevada, and, therefore, the action could be heard in this state’s courts.  He noted several hundred silicone breast implant cases have been heard in Las Vegas and Washoe County.  He stated if the defendant had previously filed a lawsuit, had it adjudicated, and it was time barred, under A.B. 667 he or she could return to court for another hearing.  He commented even Mr. White admitted in his letter (included in Exhibit D) admitted a creative plaintiff’s attorneys might argue, even without A.B. 667, the statute of limitations should not begin to run until the actual rupture, and equally creative defense attorneys can craft a viable argument the statute ran in 1996. 

 

Mr. Barengo pointed out other materials included in his handout (Exhibit D): a silicone implant chronology, compiled by National Public Radio; the National Academy of Sciences committee report summary, which Dr. Herdman and     Dr. Bondurant testified on earlier; and a letter by Governor Wilson of California who vetoed similar legislation.  Mr. Barengo noted Nevada has a 2-year statute of limitations and California only has a 1-year statute of limitations, and its governor vetoed the proposed extension.  He continued, noting in his handout (Exhibit D) the finding of the court administration of New York, which states the extension of the statute of limitations would undoubtedly have an increased caseload on the courts.  He noted the court administration of New York did, however, support the measure.  He said Illinois did not pass an introduced bill that would have extended the statue of limitations.  He pointed out in the American Legislative Exchange Council article from the handout (Exhibit D) the other cases for which the statute of limitations have been extended are:     Agent Orange, diethylstilbestrol (DES), human immunodeficiency virus                  (HIV) contaminated blood, Dalkon Shield, and silicone breast implants.                    He commented none of those have been considered in the Nevada Legislature.

 

Chairman Townsend stated because they are not a judiciary committee, his committee does not normally hear legislation dealing with legal issues as sophisticated as this.  He asked Ms. Erdoes to respond to the issue regarding the statute of limitations and the constitutionality of extending them in this case.

 

Brenda J. Erdoes, Legislative Counsel, Legal Division, Legislative Counsel Bureau, testified A.B. 667 would extend the statute of limitations for anyone whose cause of action accrues within the last 2 years forward.  She stated this bill allows someone to bring this cause of action for 1 year.  Ms. Erdoes said the reason this bill was requested was the bankruptcy case allowed some things to become available which had not been earlier, and also because some plaintiffs believed they were in a class action suit that was never heard.  She stated the Legislative Counsel Bureau disagrees with Mr. Daykin on the constitutionality of the bill.  She said the case Mr. Daykin had mentioned regarding the California mining companies was a law crafted to only include the two mining companies involved and a single district attorney from Lyon County, and was, therefore, deemed unconstitutional.  Ms. Erdoes stated as long as it includes the whole class, as in A.B. 667, and because there are several defendants involved, a special law has not been crafted.  Ms. Erdoes opined this bill would be upheld on the constitutionality issue.

 

Ms. Rushton outlined a New York statute pertaining to civil practice, laws, and rules, and the limitations of time.  She read a portion of New York Law, Civil Practice Laws and Rules, which revives cause of action for breast implants and intrauterine devises, and discusses the constitutionality of this act.  She concluded she does not see a constitutionality problem with A.B. 667.

 

Chairman Townsend cited information from the “Chronology of Silicone Breast Implants” (Exhibit D).  He stated in May 1995 Dow Corning filed for Chapter 11 bankruptcy facing 20,000 lawsuits and 410,000 potential claims, which had been filed in the global settlement.  He said the bankruptcy stopped all litigation.  Chairman Townsend stated in June of 1995 there were about 440,000 women registered in the global settlement, and about 70,000 were compensated.  He said there had been previous individual suits, particularly in Texas, where substantial awards were made.  Then, Chairman Townsend continued, in November 1995 a new global settlement was offered excluding the Dow Chemical Company, and these monetary awards were less than the first global settlement.  Chairman Townsend said at the time the global settlements were offered, some plaintiffs opted out to pursue litigation on their own.

 

Ms. Rushton stated she believes some women opted out of the global settlement to proceed independently against the other manufacturers or against Dow Chemical Company.

 

Chairman Townsend asked when the statute of limitations begins for a woman in Nevada who was well at the time of the global settlements and later finds she is suffering from effects of silicone breast implants, when does the statute of limitations begin for her?

 

Ms. Rushton replied following the global settlement, the actions had already begun, therefore the statute of limitations would have already begun.

 

Caroline Bromm, Concerned Citizen, testified she personally had opted out of the global settlement to join the revised settlement program, and she was told the statues of limitations would be running.  She said it was difficult to find an attorney to take her case at the time due to the bankruptcy filed by Dow Chemical Company.  She added there were 1000 cases filed in Nevada court, and only one went to trial and was won by the plaintiff against Dow Chemical Company.  She said none of the other cases ever went to trial; they were either settled or the attorneys dropped the clients who would not take the settlement.  Ms. Bromm urged the committee to put the women’s problems ahead of the manufacturers who caused them.

 

Chairman Townsend noted if they believed the global settlement was not in their best interest, they could opt out, but the 2-year statute of limitations began to run at that time.  He suggested the committee may want to extend the statute of limitations because the global settlement was making offers which were not acceptable and attorneys were not available.  He asked whether A.B. 667 extends the statute of limitations for people who may become ill in the future, and if they will have 3 years to pursue their case.

 

Ms. Erdoes responded in the future the 2-year statute of limitations would apply.  She stated A.B. 667 only applies to actions commenced not later than July 1, 2002.

 

Chairman Townsend restated if you commence an action on July 2, 2002, you would only have 2 years.

 

Ms. Erdoes responded you would likely be barred.  The bill only provides for a 1‑year extension until July 1, 2002.  She said the extension is meant to aid persons whose claim is already barred.

 

Chairman Townsend asked whether someone would have a 2-year statute of limitations if she becomes ill in the future. 

 

Mr. White stated if a woman developed symptoms in 2003, there would be a strong argument by the defense her claim should be barred by the statute of limitations.  He said the reason is the “diligent discovery rule” in Nevada.  He stated because of the publicity, these women should now know they have a duty to discover if they are injured.  He noted the implants were not being implanted after March of 1992 “unless they signed their life away.” He noted 77 percent of implants rupture in an average of 6 to 9 years. 

 

Chairman Townsend explained the judge would make a determination whether the case would be barred for a potential plaintiff after 2002. 

 

Mr. White concurred with Chairman Townsend’s  explanation, and added no attorney would take a case after 2002 because of the probability the judge would bar the case.

 

Senator Carlton asked Ms. Erdoes whether it was within the purview of the Legislature to do this.

 

Ms. Erdoes replied it is the opinion of the Legislative Counsel this is within the purview of the Legislature to do this.  She added there have been cases in other states where this has been upheld on both constitutional and authority issues.

 

Senator Carlton commented the statute of limitations extension in A.B. 667 has been reduced from the original proposed 2 years to 1 year.  She stated section 1, subsection 2 of the bill only applies to manufacturers and does not apply to malpractice, state, or political subdivisions.  She asked whether if Ms. Erdoes believes this bill addresses the extended-claims issue mentioned earlier.

 

Ms. Erdoes replied she believes the bill clearly addresses the extended claims issue.  She commented the extended-claims concern could stem from the possibility, if the Legislature is willing to pass this bill, they may be more likely to pass another similar bill in the future.

Senator Carlton asked whether the Nevada Legislature has ever passed a similar bill in the past.

 

William L. Keane, Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, testified only once, in 1993, Nevada enacted Nevada Revised Statutes (NRS) 217.007, which provides the statute of limitations be revived for certain narrow causes of action.  He expounded that law applied to people who had a felony committed against them, and the criminal was thereafter profiting by selling his story or something similar. 

 

Senator Shaffer asked if this could be setting a precedent for continuing liability.

 

Ms. Erdoes stated there will be litigation which ensues from the passage of A.B. 667.  She commented the precedent will be established, and added she did not know whether or not it will bring a flood of new applicants for legislation on their behalf.

 

Chairman Townsend noted subsection 1, of section 1, narrows the reach of the bill with qualifiers.  He asked if this could potentially affect the tobacco settlement. 

 

Ms. Rushton replied A.B. 667 will not affect the tobacco settlement.  She stated many of the victims of silicone injections or implants are currently receiving disability, Medicare, or Medicaid.  She said any recovery from a lawsuit would be subject to subrogation, and the state would be repaid.  She also declared this does not send a message Nevada laws are uncertain, but demonstrates, with convincing evidence, an aggrieved plaintiff may bring a cause of action in court.  Ms. Rushton commented she does not believe passage of this bill would become such a burden on the courts they would be forced to “shut down.”

 

Chairman Townsend asked Assemblywoman Koivisto why the bill was introduced so late as an emergency measure from the speaker.

 

Assemblywoman Ellen Koivisto, Clark County Assembly District No. 14, responded she did not have sufficient information to introduce the bill before the deadlines.  She declared she had asked for opposition testimony in her hearing and none was offered.

 

Chairman Townsend stated he scheduled the bill the day he received it, but he did not get it until Wednesday, and time is running out.  He commented this is too important an issue to be neglected.  Chairman Townsend asked if a person who was barred from litigation could move to Nevada, become a resident, and fall under this extended statute of limitations.

 

Ms. Rushton stated there are provisions in the law precluding people from “forum shopping” for just that reason.

 

Fred L. Hillerby, Lobbyist, Dow Chemical Company, said he wanted to comment on Mr. Daykin’s earlier testimony in regard to the narrow target of A.B. 667, and the constitutionality of this.  He pointed out line 4 of page 1 of A.B. 667 specifically mentions the manufacturers of silicone.  Mr. Hillerby also quoted a statement made by Mr. White from the minutes of the Assembly Select Committee on Health and Legal Issues on April 26, 2001, “However, that second global case involved everyone but Dow Corning and Dow Chemical, namely 3M, Bristol-Myers, Squibb, McGhan, Baxter, and others.  Those companies, he felt, would have no objection to this type of legislation being sought because they would not be affected.“  Mr. Hillerby asserted this bill was drafted for Dow Chemical Company and Dow Corning, and therefore it is special legislation.

 

Chairman Townsend commented there are conflicting opinions on the constitutionality of A.B. 667.  He recalled the substantial change this committee made regarding utilities, and how everyone agreed it was the right thing to do for the state.  He said even though they agreed, they ended up in United States District Court and in Nevada District Court on the constitutionality of the bills.

 

Mr. Hillerby stated this is a difficult issue, and the only reason he agreed to represent Dow Chemical Company was because of the public policy issue.

 

Mr. White stated the seminal case against Dow Corning was argued in the United States Court of Appeals for the Ninth Circuit titled Hopkins v. Dow Corning Corporation.  He stated the court opinion said the evidence established at the trial indicated a large number of Dow silicone gel breast implants had been implanted in thousands of women who were at risk of encountering the same fate from which Mrs. Hopkins suffered.  He stated the judge’s opinion went on to say Dow Corning’s conduct in exposing thousands of women to a painful and debilitating disease, and the evidence that Dow Corning gained financially from its conduct, may be considered in awarding punitive damages.  Mr. White said Dow Corning was aware of the defects in its products and concealed them. 

 

Mr. White stated A.B. 667 targets a lot of manufacturers and is not limited to Dow Corning or Dow Chemical Company.  He said, after 2 days of testimony, the Assembly Select Committee on Health and Legal Issues voted unanimously to pass A.B. 667.  He added A.B. 667 also passed unanimously in the Assembly.  Mr. White declared, “The only difference between then and now is that Dow has attacked this bill with a vengeance.”  He stated A.B. 667 addresses the problem of a woman whose implants rupture, or who becomes ill after the statute of limitations has run out on her claim.  He insisted it is ridiculous for Dow Chemical Corporation to argue these women were able or will be able to sue without this bill, because the company will assert the statute of limitations for any action after 1996.  Mr. White insisted Dow Chemical Corporation will contend these women should have known how bad Dow Chemical Corporation’s conduct was and how sick the women could become from the implants back in 1996.  He added now The Dow Chemical Corporation is saying its conduct was not bad and the women are not sick.  He noted back then Dow Corning’s hot line and its public relations department was telling everyone silicone could not possibly have caused them harm.  Mr. White remarked, “A more two-faced argument is hard to imagine.”

 

Mr. White continued saying, the reason the bill was introduced so late in the session is due to the recent release of the National Institutes of Health study showing causation.  He stated the May 2001 study shows definitive epidemiological evidence breast implants can cause disease.  He noted the Nevada Supreme Court did not need that study in the case, Dow Chemical v. Mahlum, to determine breast implants cause disease.  He said in that case the court listened to the testimony of the local Nevada doctors to determine breast implants cause disease in certain susceptible women.  He stated in earlier testimony the doctor from the 1999 study had stated injected silicone is highly toxic, and Mr. White asserted a ruptured implant is no different from an injection.  He explained when the rupture occurs, the silicone pours out, and it migrates everywhere in certain susceptible women.  He noted not everyone has problems with this product.  Mr. White stated A.B. 667 simply gives a few women a second chance to go to court.  He added it does not guarantee the outcome of the trial. 

 

Mr. White said a similar bill worked well in New York, and, he asserted, there was no flood of litigation.  He noted the portion of the argument Mr. Barengo had not read in earlier testimony states the legislative office had no objection to approval of the measure as a matter of substantial legislation policy.  Mr. White reiterated this will not overburden the court system in Nevada.  He stated almost all of these cases would be heard in federal court.  He claimed if the breast implant manufacturers are so positive they have an airtight defense, then they have nothing to fear except the inconvenience of having to prepare for trial.  He stated it would be equitable to allow thousands of Nevada women who have experienced this nightmare, due to the manufacturer’s conduct, a second chance in court. 

 

Mr. White asserted if the committee does not believe him, the U.S. Court of Appeals for the Ninth Circuit, the Nevada Supreme Court, or all the women at this hearing or in Las Vegas, then they should believe the book written by Dow Corning’s vice president before he left, Informed Consent.  Mr. White stated this book sets forth the whole sordid tale of how Dow Corning was able to conceal the dangers of silicone.  Mr. White asserted the concealment is being continued with the studies funded by Dow Corning. 

 

Mr. White reiterated A.B. 667 gives women the opportunity for a second chance.  He stated Dow Corning has used the issue of complications to keep women from being paid since May 1995.  He said the company has been in bankruptcy for 6 years and has grown over $1 billion in worth during that period.  Mr. White declared it can pay lobbyists but it cannot pay one penny to the women who were injured by its conduct.  He stated this statute addresses a unique situation with a product going in the body, which lasts for years and sometimes causes a problem later.  He stated most of the implants were put in before 1990 or 1991. 

 

Mr. White said there is no evidence of a problem in New York State courts.    He noted Nevada has legislated regarding the statute of limitations before.      He noted the statute of limitations has been amended in medical malpractice actions against a doctor.  He said the statute of limitations for actions against a doctor was recently extended to 4 years, in NRS Chapter 41A, from the date of the conduct versus the date of discovery.  He stated that law revision was upheld in the Nevada Supreme Court.  Mr. White urged the committee to approve A.B. 667.

 

Mr. Cannon stated silicone is not on trial in this committee; he and his clients are simply asking the committee to give them the opportunity to present their case before a judge and jury.  Mr. Cannon cited the article from the American Legislative Exchange Council from the handout (Exhibit D), which includes a listing of reasons for which the statute of limitations has been extended: Agent Orange, DES, HIV contaminated blood, and Dalkon Shield.  He stated in each of these cases the statute of limitations was extended in many states.  He said the opponents would have mentioned a flood of litigation for one of the instances if there had been one in any other state.  He noted, also from the handout (Exhibit D), California Governor Wilson’s veto letter was based on his belief women had an adequate remedy.  Mr. Cannon pointed out that letter was written in 1996 and the Dow Corning reorganization was filed in 1999; so the situation has changed.  He stated the Nevada system is here to provide fair and equitable trials as Mr. Barengo had said earlier.  Mr. Cannon concluded the women who are his clients are only asking the committee to allow them the opportunity to have their day in court.

 

Mr. White stated there has not been, to date, a case dismissed in Nevada under the statute of limitations.  He said he had brought a box of samples of actual ruptured silicone gel breast implants for the members to view.  He suggested they have discussed this issue in a distant manner and they should see the real thing, which is in women’s bodies, and is going everywhere.

 

Chairman Townsend suggested, because three of the members could not be present for this hearing, all parties should contact them individually.  He said the committee would talk about it again the following day at 8:00 a.m.

 

 

 

 

 

 

 

 

 

 

 

 

 

Chairman Townsend closed the hearing at 11:01 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

Jude Greytak,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Randolph J. Townsend, Chairman

 

 

DATE: