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An arbitrator has awarded $40,000 to a silicone breast implant litigation plaintiff who claimed that her plastic surgeon failed to inform her of all the risks associated with breast augmentation. According to John Kopesky of Sheller Ludwig & Badey, who represented plaintiff Pamela C. Sell, the award was the first issued after the silicone breast implant litigation coordinating court entered its February 2002 order mandating expedited compulsory arbitration for any lawsuit in which a plaintiff would limit recovery to $50,000. Sheller Ludwig founder Stephen Sheller told The Legal that the delay damages in Sell v. Brantner would bring Sell’s total recovery to well over $100,000. Kopesky said his firm has 30 to 35 additional silicone implant cases in various stages of arbitration, with more waiting in the wings. The attorney said that because Sheller Ludwig is handling hundreds of silicone implant cases, the court has been moving them into arbitration at a rate of 10 every month or every other month rather than in a lump-sum fashion. Created by the Pennsylvania Supreme Court in 1993 to manage a flood of silicone implant cases, the coordinating court explained its reason for implementing an arbitration program for breast implant litigation. “There are approximately 650 pending lawsuits in which plaintiffs are seeking damages for personal injuries alleged to have been sustained in the use of silicone breast implants,” the coordinating court said in its February 2002 case management order explanation. “In the vast majority of these cases, plaintiffs have resolved their claims against the manufacturing defendants; their remaining claims involve only the health care defendants, who may have cross-claims against the manufacturing defendants.” In the document, the court said that plaintiffs’ attorneys were not moving forward with their cases and that the court, therefore, intended to enter orders that would result in completion of discovery and pretrial statements in at least 300 cases over a one-year period. “In many of these remaining 650 cases, plaintiffs will limit their claims to $50,000 if the coordinating court will develop an expedited procedure that will fairly and efficiently resolve these claims,” the explanation states. “The medical defendants also favor the resolution of these claims through an expedited procedure provided that the procedure will produce defense verdicts in those cases in which the evidence does not support the plaintiffs’ claims; i.e. defendants oppose any procedure that is designed to ‘compromise’ claims as opposed to considering the merits of each claim.” In the Sell case, Pittsburgh arbitrator Harry M. Paras on Tuesday issued findings along with his $40,000 award. “This arbitrator,” Paras wrote, “finds that the claimant . . . was not advised by [defendant] Dr. James Brantner of the risk of rupture of her breast implants prior to breast augmentation surgery on May 26, 1989. . . . If she had been provided with this information, the claimant forcefully testified that she would not have undergone the procedure.” The arbitrator said in his findings that though Brantner may have indicated a risk of future surgery in the event of capsular contracture, a condition in which fibrous tissue forms after implantation and compresses the implant, the physician did not testify affirmatively and convincingly that he actually warned Sell about the risk of rupture and the subsequent necessity of implant removal. Paras also noted that the consent form the plaintiff signed prior to surgery was “conspicuous” in its failure to list rupture as a potential risk. “Under ‘complications,’ the package insert [for Sell's implants] sets forth ‘the potential for rupture during surgery or even well after surgery,’” Paras wrote. “Ruptured implants, as well as all the gel contents, must be removed because of possible extravasation of the gel.” The arbitrator said Brantner did not testify specifically that he warmed Sell of the complications in the package insert. Paras concluded that rupture was a known and material risk of breast augmentation and that a reasonable and prudent person would, therefore, have wanted to know about such a possibility. “This arbitrator finds that Sell would have considered knowledge of the risk of rupture significant in making her decision and that claimant was not provided with this material risk information,” Paras said. Turning to damages, the arbitrator decided that the plaintiff’s damages consisted of removal surgery and its associated recovery and cost. While the claimant had scarring, Paras said, her scars were neither highly visible nor grossly disfiguring. The coordinating court’s February 2002 order states that with some exceptions, arbitration awards rendered in the silicone breast implant litigation are appealable. David Neuhart of Dickie McCamey & Chilcote in Pittsburgh represented Brantner. He could not be reached for comment prior to press time. Judge R. Stanton Wettick Jr. served as chairman of the coordinating court. Additional members listed on the court’s order and explanation included Philadelphia Common Pleas Judges Victor J. DiNubile Jr. and Sandra Mazer Moss and York County Common Pleas Senior Judge Emanuel A. Cassimatis. (Copies of the six-page opinion in Sell v. Brantner , PICS NO. 03-0898, are available from The Legal Intelligencer . Please refer to the order form on Page 11.)

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