/raid1/www/Hosts/bankrupt/CAR_Public/990913.MBX                 C L A S S   A C T I O N   R E P O R T E R

                Monday, September 13, 1999, Vol. 1, No. 154


ACUSHNET CO: Wronged Golfers? A Golfer And Class Member Questions
ASBESTOS LITIGATION: Sp Ct To Decide AC&S To Pay Pro Tanto Or Pro Rata
ASBESTOS LITIGATION: USG Faces Claims Re Property And Personal Injury
BECTON DICKONSON: Stuck Uninfected Texas Health Workers Seek Class Cert
CAPRIUS INC: Settles For Securities Suit In Massachusetts

DRUGS PRICE-FIXING: 3 Japanese Drug Makers Agree to Settle U.S. Charges
FIRST UNION: Penn Ct Orders For Class Redefinition For FDCPA Settlement
HOLOCAUST VICTIMS: Swiss Committee Finds 62,000 Dormant Bank Accounts
HONDA MOTOR: May Face Criminal Probe On Alleged Evidence Concealment
ILLINOIS: Motorists Lose Bid To Revive Racism Claim Against Police

LIVENT INC: NY Investment Funds Sue In Man., Joining Rank Of plaintiffs
LOCKHEED MARTIN: Johnnie Cochran Joins Workers' Cause For Equality
PLANTIER: Diabetic Inmates’ Suit On Remand For Individualized Analysis
SCHOLASTIC CORP: Will Defend Vigorously Securities Suit In NY
TOBACCO LITIGATION: GIO Directors Quit Over Irreconcilable Differences

TOBACCO LITIGATION: Saved Lump-Sum Damages But May Face Giant Pay-Outs
TOBACCO LITIGATION: Second Phase Of Landmark Suit Postponed To Oct 12
TOTAL RENAL: Carboline Sued Over Worker Illness At Nuclear Plant, Texas
TOTAL RENAL: Decries Merit Of Securities Suit In CA
TOTAL RENAL: Subs. Dryvit Sued By Owners Of Structures Clad With EIFS

TOTAL RENAL: Subsidiary Bondex Decries Merit Of Asbestos Suit


ACUSHNET CO: Wronged Golfers? A Golfer And Class Member Questions
By Lew Goldfarb, vice president and associate general counsel to
DaimlerChrysler Corp., in Auburn Hills, Mich.:

I've been Charlie-Browned. You know what I'm talking about. That
phenomenon when you've been dealt the bad card, given short shrift,
essentially swindled.

There I was minding my own business when I was informed I had been
wronged, so terribly wronged in fact that I was entitled to some
well-deserved goods, given that I had been so put out. Even though I
didn't realize it.

So when I got a small box of Pinnacle golf balls in the mail to right
this wrong, I just had to take a closer look at the atrocity that
prompted this gift.

Allow me to explain. I received a Notice of Class Action and Proposed
Settlement in a case against a leisure sporting goods manufacturer,
Acushnet Co., over a publicized promotion. Under the promotion, the
company offered to provide a free golf glove to those who sent in a
coupon. But they didn't make good on the offer to all class members,
according to personal-injury lawyers.

Their fraudulent act? They ran out of gloves and sent balls instead.
Outrageous? Malicious? Corporate conspiracy run amok? If you listen to
the lawyers you'd almost think so. Except for one basic fact: It's

Pending before Judge Ellis R. Reid in a Chicago courtroom is this very
settlement, which will be examined and ruled upon, and justice will be
served for all the wronged golfers out there. The settlement in question
involves recompense to those in the class like me who didn't receive a
glove but instead received a single sleeve of golf balls. The problem?
The value of the glove was equivalent to the value of two sleeves of

But I have a problem with this. The fact that these public-spirited
lawyers who undertook to retrieve the "missing" golf balls will be paid
$100,000 is troubling, indeed, and makes a mockery of a system already
serving as the world's laughingstock.

In this country, class actions are an important vehicle for protecting
the rights of consumers whose legitimate individual claims might not
justify the hiring of a lawyer to bring the action. This is not one of
those cases.

I wrote to the judge and made my views known, as is my right as a member
of this class. And I heard from "my" lawyers, who protested my
detracting views. But how can I not speak up when this is clearly an
abuse of the legal system? It is a case that was created solely by
lawyers for the benefit of lawyers and their friends who seek to be
richly rewarded for essentially allowing their names to be used in this
suit. (Did I mention the two named plaintiffs would each get $2,500 for
lending their name to this atrocity?)

Sure, I'll admit I've used Pinnacle golf balls over many years and have
taken advantage of the free offers made by Acushnet Co. When, for some
clerical or other reason, I did not receive the promised goods in a
timely fashion, a call or a letter to the company always produced a
prompt response.

We don't need $100,000 lawyers to file a class action for a sleeve of
golf balls. We need to respect scarce judicial resources to adjudicate
legitimate civil and criminal cases. We need to respect the class-action
mechanism as a consumer right. We need to encourage lawyers to pursue
legitimate legal work, not lure them with the promise of a quick buck
obtained through a questionable lawsuit. And we need to keep prices to
consumers down by reining in these kinds of abuses to the legal system.

This settlement, this case, is neither fair nor reasonable. My solution
is worthy of consideration, however. The court should award the
plaintiffs a bucket of balls and a hand-held golf ball retriever. That
way, the next time they get the urge to retrieve balls for us poor
consumers they can use their own equipment and not waste the court's
time and money. (Chicago Tribune 9-9-1999)

ASBESTOS LITIGATION: Sp Ct To Decide AC&S To Pay Pro Tanto Or Pro Rata
The Supreme Court has agreed to hear a case that may have defendants in
complex tort cases second-guessing their decisions to roll the dice at
trial. The issue in the case is whether a verdict in an asbestos case
should be reduced applying pro rata principles or the court should honor
a settling defendant's pro tanto release. The court's decision will
determine whether $ 410,000 will go to the plaintiffs or will remain
with the one non-settling defendant.

The trial court had molded the $ 2.2 million verdict by applying pro
rata reduction principles to a pro tanto, or dollar-for-dollar, release
the plaintiff gave to the Johns Manville Personal Injury Trust in return
for a $ 30,000 payment. Under pro tanto principles, any judgment against
the non-selling defendant would be reduced by the amount the trust
agreed to pay in the settlement $ 30,000 instead of the amount for which
it was judged to be responsible $ 440,000.

But in March, a split en banc Superior Court reversed the trial court
decision in Baker v. AC&S Inc. As a result, defendant AC&S, the only
non-settling defendant left at trial in the asbestos death case, was
held liable for the $ 2.2 million verdict, minus the pro-rata shares of
three settling defendants found liable ($ 440,000 each), minus the $
30,000 paid by the trust. Under the trial court's decision, the Manville
Trust was treated like the other settling defendants, and AC&S was
responsible for a full $ 440,000 pro rata share attributable to

The decision put an additional $ 410,000 in the plaintiffs' pocket, at
the expense of AC&S. The majority said its decision was consistent with
state law favoring tort victims over tortfeasors in circumstances where
another tortfeasor cannot pay its share. Moreover, where a defendant has
rolled the dice in hopes of winning in front of the jury, it shouldn't
complain about having to pay more than its share under joint and several
liability principles, the court said. Three judges on the panel
dissented, saying that under applicable law, pro rata reduction rules
should apply.

The Superior Court's decision in Baker came on the heels of the Supreme
Court's order granting allocatur in another case involving
interpretation of the Manville Trust Distribution Process. In Martin,
Jones and Hyppolite v. Owens Corning, three cases consolidated for
purposes of appeal, the Supreme Court will decide whether a plaintiff
who has not settled his case with the trust must have his verdict
against a non-settling defendant reduced to account for the Manville

Albert Baker and his wife Suzanne sued a number of asbestos defendants
after Albert developed pleural plaques, allegedly due to his
work-related asbestos exposure. The case was dismissed without prejudice
but later revived when Albert developed mesothelioma. The case was
"reverse bifurcated" (i.e., damages were determined before liability was
apportioned) in accordance with the procedure followed in Philadelphia,
and plaintiffs received a damage award of $ 2.2 million. Several
defendants were dismissed on motions for summary judgment, and the
plaintiffs settled with three others: Owens Corning, Pfizer and ACMC,
formerly National Gypsum. In addition, the plaintiffs settled their
claim against the Manville Personal Injury Settlement Trust.

At the liability trial against AC&S, the only non-settling defendant,
the trial court found AC&S and the four settling entities liable. It
then turned to the issue of molding the verdict to account for the
settlements. The three defendants had each obtained pro rata releases,
but the Manville Trust which had paid just $ 30,000 took a pro tanto
release in exchange for settlement. Nevertheless, in molding the
verdict, the trial judge interpreted state law and the Manville Trust
Distribution Process to require a set-off against the plaintiffs'
verdict by a pro rata amount, or one-fifth, to account for the trust's
share, rather than the dollar-for-dollar reduction contemplated by the
pro tanto release language. It was that decision that was the focus of
the appeal.

Superior Court Judge Berle Schiller reviewed the history of the Manville
Personal Injury Settlement Trust, including its creation in 1988, the
deluge of claims leading to its early insolvency, a class action to
restructure the trust and the eventual creation of subclasses of
claimants bound by the trust distribution process. Under the TDP, a
schedule or matrix of disease categories and associated dollar values
was established, with the trust paying a small percentage of the
assigned value. In this case, a mesothelioma was "rated" at $ 300,000,
but the trust could pay only 10 percent of that amount. Contribution
claims against the trust are precluded in most situations, the court
noted, but a co-defendant has the right to treat the trust as a "legally
responsible tortfeasor" without further proof, and the defendant, if
found liable, is entitled to a set-off with respect to the trust's
payment, measured by reference to local law.

The TDP refers to the following methods of set-off: (1) pro tanto, (2)
pro rata, (3) allocation or apportionment, (4) several liability and (5)
multiple set-off rules. A court is supposed to determine which category
its state law falls into and apply it.

The trial court found that Pennsylvania was a pro rata state and,
therefore, applied a pro rata reduction despite the pro tanto language
of the release.

However, reversing the trial court's finding, the Superior Court
majority held that Pennsylvania is a "multiple set-off rule" state,
where the method of set-off depends on the type of action and other

Schiller cited the Uniform Contribution Among Tortfeasors Act, which
calls for reduction of a claim against a non-settling defendant by the
amount paid or in any proportion provided for in the release. In
general, releases are given their ordinary meaning, Schiller said. It's
a matter of contract and bargaining power.

Against this backdrop, AC&S argued that under Walton v. Avco Corp. and
Ball v. Johns-Manville Corp., damages among strict liability defendants
must be apportioned pro rata regardless of the terms of a release. But
the majority disagreed.

Citing Charles v. Giant Eagle, the court concluded that a pro tanto
release given to a settling defendant in a strict liability case will be
applied according to its terms, if the consideration paid for the
release is less than the total of plaintiff's claim. "This
interpretation serves the policies emphasized in Walton and Giant Eagle
in favor of encouraging settlements and of respecting their finality.
This interpretation also furthers the policies reinforced in Walton and
Giant Eagle that the plaintiff should be fully compensated for his
injuries, and that a non-settling joint tortfeasor should not benefit
from the windfall of a settling tortfeasor paying more than his or her
share of allocated liability," Schiller wrote. "By extension, a
non-settling joint tortfeasor should not receive a windfall in the form
of a release of its joint and several liability to the plaintiff simply
because another joint tortfeasor settled for less than his or her
allocated share of liability."

Schiller acknowledged that under the TDP, AC&S will be precluded from
seeking contribution for the amount it pays in excess of its share but
reasoned that it could have settled with the plaintiffs as the other
defendants did. Instead, it "rolled the dice" hoping that the factfinder
would not assess liability against it. Now that it rolled "snake eyes,"
Schiller said, it shouldn't complain about its joint and several
liability for the full verdict. "Our decision is consistent with
Pennsylvania's longstanding legislative intent and judicial affirmation
that (1) as between the rights of victims and competing tortfeasors, the
rights of victims are paramount, and (2) plaintiffs and defendants are
free to choose the method of settling cases consistent with their
respective interests and strategies," Schiller said.

                       Dissent: Pro Rata Preferred

The dissenting judges, J. Michael Eakin, Michael T. Joyce and President
Judge Stephen J. McEwen, would have affirmed the trial court's
conclusion that Pennsylvania is a pro rata state and that the verdict
against AC&S should be reduced by an additional one-fifth to account for
the share of the Manville Trust, despite the pro tanto release language.
Rather than look broadly at the state law involving set-off, the
dissenting judges would have narrowed the focus to strict liability
actions, where pro rata is the preferred approach. The dissent noted
that the trust came about as a result of the Johns-Manville bankruptcy
and constitutes an attempt to salvage some measure of compensation for
the vast number of claimants out of a limited fund. "There is no reason
to disregard the hard-fought negotiations of the parties in [the class
action], and the resulting balancing of interests, to give effect to a
side agreement between two of the parties, especially where doing so
would require a remaining party to pay almost twice the share otherwise
required under the TDP and Pennsylvania law." (The Legal Intelligencer

ASBESTOS LITIGATION: USG Faces Claims Re Property And Personal Injury
U.S. Gypsum, is among many defendants in lawsuits arising out of the
manufacture and sale of asbestos-containing materials. U.S. Gypsum sold
certain asbestos-containing products beginning in the 1930s; in most
cases, the products were discontinued or asbestos was removed from the
formula by 1972, and no asbestos-containing products were produced after
1977. Some of these lawsuits seek to recover compensatory and in many
cases punitive damages for costs associated with the maintenance or
removal and replacement of asbestos-containing products in buildings
(the "Property Damage Cases"). Others seek compensatory and in many
cases punitive damages for personal injury allegedly resulting from
exposure to asbestos-containing products ( the "Personal Injury Cases").
It is anticipated that additional asbestos-related suits will be filed.

                             Brief Summary

U.S. Gypsum is a defendant in 11 Property Damage Cases, many of which
involve multiple buildings. One of the cases is a conditionally
certified class action comprised of all colleges and universities in the
United States, which certification is presently limited to the
resolution of certain allegedly "common" liability issues. (Central
Wesleyan College v. W.R. Grace & Co., et al., U.S.D.C.S.C.). Ten
additional property damage claims have been threatened against U.S.
Gypsum. During the years 1996-1998, 5 new Property Damage Cases were
filed against U.S. Gypsum while 26 were closed; the Company spent an
average of $23.5 million per year on the defense and settlement of
Property Damage Cases, but received a total of $154.5 million over the
three-year period from insurance carriers, including reimbursement for
expenditures in prior years.

U.S. Gypsum is also a defendant in Personal Injury Cases brought by
approximately 110,000 claimants, as well as an additional 41,000 claims
that have been settled but will be closed over time. Filings of new
Personal Injury Cases totaled approximately 80,000 claims in 1998,
compared to 23,500 claims in 1997, 28,000 claims in 1996 and 14,000 in
1995. Filings of Personal Injury Cases increased substantially as a
result of a 1997 ruling by the U.S. Supreme Court rejecting the Georgine
v. Amchem class action settlement, in which U.S. Gypsum had participated
as a member of the Center for Claims Resolution, referred to below.
During the first six months of 1999, approximately 27,000 new Personal
Injury Claims were filed against U.S. Gypsum. U.S. Gypsum's average cost
to resolve Personal Injury Cases during the years 1996-1998 was
approximately $1,800 per claim, exclusive of defense costs. Over that
period, U.S. Gypsum expended an average of $40.4 million per year on
Personal Injury Cases, of which an average of $31.4 million was paid by

U.S. Gypsum is a member, together with 19 other former producers of
asbestos-containing products, of the Center for Claims Resolution (the
"Center"), which has assumed the handling of all Personal Injury Cases
pending against U.S. Gypsum and the other members of the Center. Costs
of defense and settlement are shared among the members of the Center
pursuant to predetermined sharing formulae. Most of U.S. Gypsum's
personal injury liability and defense costs are currently being paid by
its insurance carriers, including those insurance carriers that in 1985
signed an Agreement Concerning Asbestos-Related Claims (the "Wellington
Agreement"), obligating them to provide coverage for the defense and
indemnity costs incurred by U.S. Gypsum in Personal Injury Cases.
Punitive damages have never been awarded against U.S. Gypsum in a
Personal Injury Case; whether such an award would be covered by
insurance under the Wellington Agreement would depend on state law and
the terms of the individual policies.

U.S. Gypsum sued its insurance carriers in 1983 to obtain coverage for
asbestos cases (the "Coverage Action") and has settled all disputes with
most of its solvent carriers. As of June 30, 1999, after deducting
insolvent coverage and insurance paid out to date, approximately $207
million of potential insurance remained, including approximately $162
million of insurance from six carriers that have agreed, subject to
certain limitations and conditions, to cover asbestos-related costs, and
approximately $45 million from three carriers that have not yet agreed
to make their coverage available on acceptable terms. A minimum of $10
million of the disputed coverage is expected to be available regardless
of the outcome of further proceedings. U.S. Gypsum is attempting to
resolve its disputes with the nonsettling carriers through either a
negotiated resolution or further litigation in the Coverage Action.

U.S. Gypsum's total expenditures for all asbestos-related matters,
including property damage, personal injury, insurance coverage
litigation and related expenses, exceeded aggregate insurance payments
by $24 million in 1998, but insurance payments exceeded asbestos-related
expenses by $0.7 million in 1997 and $41 million in 1996, due primarily
to nonrecurring reimbursement for amounts expended in prior years.

Four of U.S. Gypsum's domestic insurance carriers, as well as
underwriters of portions of various policies issued by Lloyds and other
London market companies, providing a total of approximately $106 million
of coverage, are insolvent. Because these policies would already have
been consumed by U.S. Gypsum's asbestos expenses to date if the carriers
had been solvent, the insolvencies will not adversely affect U.S.
Gypsum's coverage for future asbestos-related costs. However, U.S.
Gypsum is pursuing claims for reimbursement from the insolvent estates
and other sources and expects to recover a presently indeterminable
portion of the policy amounts from these sources.

                            Estimated Cost

The asbestos litigation involves numerous uncertainties that affect U.S.
Gypsum's ability to estimate reliably its probable liability in the
Personal Injury and Property Damage Cases.

In the Property Damage Cases, such uncertainties include the
identification and volume of asbestos-containing products in the
buildings at issue in each case, which is often disputed; the claimed
damages associated therewith; the viability of statute of limitations,
product identification and other defenses, which varies depending upon
the facts and jurisdiction of each case; the amount for which such cases
can be resolved, which normally (but not uniformly) has been
substantially lower than the claimed damages; and the viability of
claims for punitive and other forms of multiple damages.

Uncertainties in the Personal Injury Cases include the number,
characteristics and venue of Personal Injury Cases that are filed
against U.S. Gypsum; the Center's ability to continue to negotiate
pretrial settlements at historical or acceptable levels; the level of
physical impairment of claimants; the viability of claims for punitive
damages; any changes in membership in the Center; and the ability to
develop an alternate claims-handling vehicle that retains the key
benefits of Georgine. As a result, any estimate of U.S. Gypsum's
liability, while based upon the best information currently available,
may not be an accurate prediction of actual costs and is subject to
revision as additional information becomes available and developments

Subject to the above uncertainties, and based in part on information
provided by the Center, U.S. Gypsum estimates that it is probable that
Property Damage and Personal Injury Cases pending at June 30, 1999, can
be resolved for an amount totaling between $335 million and $420
million, including defense costs. Most of these amounts are expected to
be expended over the next three to five years, although settlements of
some Personal Injury Cases will be consummated over periods as long as
seven years. Significant insurance funding is available for these costs,
as detailed below, although resolution of the pending cases is expected
to consume U.S. Gypsum's remaining insurance. At this time, U.S. Gypsum
does not believe that the number and severity of asbestos-related cases
that ultimately will be filed in the future can be predicted with
sufficient accuracy to provide the basis for a reasonable estimate of
the liability that will be associated with such cases.

As of June 30, 1999, U.S. Gypsum had reserved $335 million for liability
from pending Property Damage and Personal Injury Cases (equaling the
lower end of the estimated range of costs provided above). U.S. Gypsum
had a corresponding receivable from insurance carriers of approximately
$172 million, the estimated portion of the reserved amount that is
expected to be paid or reimbursed by insurance that is either committed
or probable of recovery. Additional amounts may be reimbursed by
insurance depending upon the outcome of litigation and negotiations
relating to the $35 million of insurance that is presently disputed. As
of June 30, 1999, U.S. Gypsum had an additional $35 million reserved for
asbestos liabilities and asbestos-related expenses.

U.S. Gypsum compares its estimates of liability to then-existing
reserves and available insurance assets and from time to time adjusts
its reserves as appropriate. The Company historically has accrued $18
million annually ($4.5 million per quarter) for asbestos costs.

In view of the high level of personal injury filings that followed the
termination of Georgine, U.S. Gypsum accrued an additional $8 million in
both the fourth quarter of 1998 and the first quarter of 1999. In the
second quarter of 1999, U.S. Gypsum reserved a total of $30 million
largely as a result of the increased rate of filings of Personal Injury
Cases in the quarter. The increased number of filings compared to the
first quarter appears to be primarily due to accelerated filings by
plaintiffs' counsel with whom the Company (through the CCR) has recently
negotiated settlement agreements.

Although new Personal Injury Cases were filed in the first six months of
1999 at approximately one-half the rate at which cases were filed in the
first six months of 1998, asbestos charges to results of operations have
been higher in 1999 because the estimated cost of resolving cases
pending during 1998 will, when expended, consume all of U.S. Gypsum's
remaining insurance; as a result, the estimated liability from new case
filings is currently being charged against reported earnings.
Accordingly, the Company expects that periodic accruals will be
necessary in the future, in amounts that could be higher or lower than
recent quarters.

The amount of future periodic accruals will depend upon factors that
include, but may not be limited to, the rate at which new
asbestos-related claims are filed, the potential imposition of medical
criteria, U.S. Gypsum's average settlement cost, and the necessity of
higher-cost settlements in particular jurisdictions.

In addition, the Company will continue to evaluate whether its ultimate
probable liability for future Personal Injury Cases can be reasonably
estimated. If such an estimate can be made, it is probable that
additional charges to results of operations would be necessary, although
whether such an estimate can be made and, if so, the timing and amount
of the resulting charge to results of operations cannot presently be
determined. However, the amount of the periodic and other charges
described above could be material to results of operations in the period
in which they are taken.

BECTON DICKONSON: Stuck Uninfected Texas Health Workers Seek Class Cert
An estimated 200,000 Texas health care workers who suffered needlestick
injuries, but were never infected with any disease, have moved for class
certification in a case against two companies they say have an oligopoly
on the needle industry (Joan Usrey, et al v. Becton Dickinson & Co.,
Inc., et al., No. 342-173329-98, Texas Dist., Tarrant Co.).

Certification arguments were heard on the May 21 motion in the Tarrant
County District Court. The putative class is suing needle manufacturers
Becton Dickinson & Co. and Sherwood Medical Co. Both have controlled
approximately 90 percent of the sharps market in the United States since
the 1960s.

(Text of Class Certification Motion in Section C. Mealey's Document #

The class claims, however, that since then the firms have done nothing
with the design of their open hollow bore needles to prevent the
estimated 1 million needlestick injuries suffered by health care workers
each year. In each injury case, the plaintiff was injured by a hollow
bore needle after the sharp was no longer needed.

By some accounts, the annual cost of treating needlestick injuries has
risen to $ 1 billion, a expense that is primarily absorbed by employers.
Meanwhile, needle manufacturers have done virtually nothing to alter the
designs of their allegedly defective device designs, the putative class

"These companies became aware of the needle stick problem about the same
time the computer industry began mass producing an alternative to the
vacuum tube," the motion says. "In the twenty years that followed,
computers shrunk from the size of entire building floors to the palm of
a hand. . . . All the while, BECTON and SHERWOOD whistled at the
gathering darkness of the needle stick epidemic."

The class complaint is the first of its kind, focusing only on a
"forgotten category" of Texas health care workers who have been injured
by syringe needles, but have not tested positive for the variety of
blood-borne illness they risk acquiring as a result of their injuries.

If certified, its members will seek the cost of medical treatment
necessary to ensure they have not contracted diseases such as HIV and

"Only by way of this class action can a vast majority of health care
workers obtain the proper medical testing caused by their needle stick
injuries," the proposed class says.

                           Class Requirements

According to the motion, the putative class meets all of Texas'
requirements for class certification. Specifically, the motion says, the
number of possible members could at one point exceed 200,000 and each
member shares common legal concerns such as whether the non-safety
syringes and blood collection products used by the plaintiffs were
defectively designed and whether safer alternatives existed when the
accidents occurred. "In each Plaintiff's case, safer alternative
products were available, either through Defendants or others," the class

For years now, both companies have marketed safer devices that shield
needles from health care workers, virtually eliminating the risk of
needlestick and infection. But according to Becton and Sherwood, the
market has been slow to accept them.

The motion also says the most compelling reason to certify the class is
because it is a negative value suit. The litigation costs, the class
claims, would undoubtedly outweigh the potential damage awards. "Similar
suits involving infected needle stick victims have been brought against
both Defendants, but the potential damage award in those cases justified
the expenses incurred in pursuing the individual claims," the motion

The plaintiffs are represented by John S. Jose of Jose, Henry, Brantley
& Keltner in Fort Worth, Texas. Associate general counsel for Becton
Dickinson is Roy Weber of Franklin Lakes, N.J. The firm is also
represented by Jonathan Skidmore of Fulbright & Jaworski in Dallas.
(Mealey's Emerging Drugs & Devices 7-16-1999)

CAPRIUS INC: Settles For Securities Suit In Massachusetts
On January 7, 1998, the Company and Jack Nelson, who was the Company's
Chairman and Chief Executive Officer, were served with a complaint in
connection with a purported class action brought against them by Dorothy
L. Lumsden in the United States District Court of the District of
Massachusetts. The complaint contains claims for alleged violations of
Sections 10(b) and 20(a) under the Securities Exchange Act and common
law. Ms. Lumsden purported to bring her action "on behalf of herself and
all other persons who purchased or otherwise acquired the common stock
of the Company during the period August 10, 1994 through and including
December 12, 1997".  On February 2, 1998, the Company and Mr. Nelson
were served with a second class action complaint naming them as
defendants in connection with another action brought in the United
States District Court for the District of Massachusetts. This action was
brought by Robert Curry and the complaint alleged the same purported
class and contained similar allegations and claims as the class action
complaint discussed above. On April 24, 1998, the District Court
consolidated the two class actions claims into one for pre-trial

On January 7, 1999, the Company announced that it has reached a
preliminary settlement in the shareholder class action in Federal Court
in Boston. Under the terms of the settlement, Caprius made a cash
payment of $150,000 and will issue 325,000 shares of common stock to
Plaintiffs. Caprius' insurance carrier contributed $100,000 of the cash
payment. In addition, the settlement also stipulated that in the event
Caprius sold all or part of its business within 12 months an additional
payment of $75,000 and issuance of 100,000 additional shares would be
made by Caprius to plaintiffs. Consequently, on April 27, 1999, the
additional payment was made and the additional shares will be issued.
For the quarter ended June 30, 1999, the Company reported $175,795 as
total settlement costs, which included $50,798 for the market value of
the shares to be issued.

DRUGS PRICE-FIXING: 3 Japanese Drug Makers Agree to Settle U.S. Charges
The Justice Department said that three Japanese pharmaceutical companies
had agreed to plead guilty to United States antitrust violations and to
pay more than $137 million to settle charges that they took part in a
worldwide conspiracy to fix prices in the vitamin market.

The settlement comes just months after three European vitamin
manufacturers some of the biggest and best-known pharmaceutical and
chemical companies in the world -- agreed to pay huge criminal fines for
what Government prosecutors say was a decadelong conspiracy to inflate
the price of vitamins used in everything from breakfast cereal to hand

In breaking up the cartel, the United States Government has now
recovered more than $850 million and exposed a loose confederacy of
vitamin makers that met clandestinely for years, plotting in hotel rooms
and other places to divide up world markets and to artificially increase
the price of vitamins that were sold to virtually every food, beverage
and animal feed company in the world.

The case does not involve the sale of vitamin tablets, commonly sold at
a drug store, but the ingredients that go into everything from vitamin
tablets to poultry feed and orange juice.

Although the companies that have confessed to taking part in the
conspiracy account for more than 90 percent of the world's vitamins
sales, it is unclear whether American consumers will receive any
compensation for purchasing products that, year after year, contained
over-priced albeit small vitamin ingredients. Several class-action suits
brought by large food makers and various other groups could eventually
benefit consumers.

The guilty pleas came from Takeda Chemical Industries of Osaka, which
agreed to pay $72 million; the Eisai Company of Tokyo, which agreed to
pay $40 million, and the Daiichi Pharmaceutical Company in Tokyo, which
agreed to pay $25 million, according to the Government. Takeda is the
largest pharmaceutical company in Japan. No executives were charged.

Takeda, which sold vitamins B and C, released a statement late yesterday
saying it deeply regretted the matter and that any employees involved in
the case would be disciplined. The company said all managers,
executives, board members and an auditor would have their pay reduced.

Officials at Daiichi, which sold vitamin B, could not be reached for

Cathy Pollini, a spokeswoman at the United States subsidiary of Eisai,
which sold vitamin E, said yesterday that she could only confirm that
the company was cooperating with the Justice Department's investigation
of anti-competitive practices in the vitamins market.

"The prosecution of these three Japanese companies further demonstrates
the truly international aspect of the vitamin conspiracy," Joel I.
Klein, the assistant attorney general in charge of the antitrust
division, said in a statement. "By conspiring to fix the prices and
allocate the sales of these vitamins, these companies and their
co-conspirators reaped hundreds of millions of dollars in additional

Last May, Hoffmann-LaRoche, a unit of Roche Holding of Switzerland,
agreed to pay $500 million and BASF A.G. of Germany agreed to pay $225
million to settle accusations that they master-minded the vitamin
conspiracy, along with Rhone-Poulenc of France, which was not fined
because it cooperated in the early days of the Government investigation.
It was the largest settlement ever in a Federal antitrust case.

Two Roche executives also pleaded guilty and agreed to serve jail terms
in the United States. One of those executives had misled investigators
in an earlier investigation into price-fixing at Roche, the Government

In late 1998, another vitamin maker, Lonza A.G. of Switzerland, also
pleaded guilty to price fixing in the vitamins market and agreed to pay
$10.5 million.

The Government said yesterday that all three Japanese companies and many
of their executives were cooperating with the investigation, which
industry experts said could still involve a few smaller players in the
vitamins market.

The Japanese role in conspiring with the European companies began in
early 1991, the Government said, and in the case of Daiichi and Eisai,
extended through February of this year. The conspirators met regularly,
sometimes under the fictional name "Vitamins Inc.," to exchange sales
information and to agree to split up or allocate markets and volumes and
to set prices in violation of United States antitrust laws.

Just this week, lawyers involved in a class-action suit on behalf of
some of the world's largest food and beverage makers said they were
close to a settlement with the six European and Japanese vitamin makers
(though not Lonza), which had tentatively agreed to pay $1.1 billion to
settle price-fixing claims. A final agreement is expected soon.

Meanwhile, the Justice Department has stepped up its efforts to crack
down on a wide variety of global price-fixing schemes, many involving
food, chemical and other little-watched ingredients. In 1999 alone, the
agency has collected more than $1 billion in fines, more than all fines
collected in the previous decade. That money will be deposited in a
Federal crime victims fund, the agency said. (The New York Times

FIRST UNION: Penn Ct Orders For Class Redefinition For FDCPA Settlement
A proposed Fair Debt Collection Practices Act class action settlement
that failed to clarify the eligibility of potential future class members
and included an excessive attorney's fee provision, did not receive
preliminary approval from the U.S. District Court for the Eastern
District of Pennsylvania. The court ordered the parties to either
redefine the class of debtors who challenged the dunning collection
letters or explain the eligibility of future class members. Smith v.
First Union Mortgage Corp., et al., No. 98-5360 (E.D. Pa. 7/19/99).

The plaintiffs filed a class action under the FDCPA against First Union
Mortgage Corp. and Hutchens, McCalla, Raymer & Echevarria after
receiving virtually identical debt collection notices. The plaintiffs,
who initially included claims for declaratory and injunctive relief,
filed an unopposed motion for preliminary approval of settlement and
notice to class with the District Court. Additionally, the plaintiffs
sought provisional certification of a class of approximately 288 members
under Fed. R. Civ. P. 23(b)(3) for the purpose of settlement and
preliminary approval of the parties' agreement.

Although the District Court concluded that the class satisfied Fed. R.
Civ. P. 23(a)'s numerosity, commonality, typicality and adequacy of
representation requirements, it found problems with the class fulfilling
the prerequisites of Rule 23(b). The District Court found that questions
of law and fact predominated due to the similarity between the factual
and legal predicates of each class member's claim and ruled that the
class met the predominance requirement of Rule 23(b)(3). Similarly, the
court found that a class action would fairly and efficiently address
class members claims and thus, the superiority requirement was

However, the court voiced its concern about the settlement's treatment
of the class of future debtors who may receive an improper letter from
the defendants. The settlement provides for the payment of damages in
"satisfaction of all claims," yet contains no consent of an injunction
or other prospective relief for the class, which includes person who may
receive improper letters from the defendant after certification,
settlement and settlement approval. The court found that the lack of
consent to an injunction or other relief hindered the ability of
identified class members to make an informed opt-out decision. It also
interfered with the court's ability to determine the fairness of the

The District Court delayed ruling on the motion and ordered the parties
to consider redefining the class. It also directed the parties to file
briefs on the issue of the eligibility of future class members.

The District Court further advised the parties to reconsider the
settlement's ceiling for attorney's fees as it found "a 70 [percent] fee
in a common fund case" to be "excessive." (Consumer Financial Services
Law Report 8-24-1999)

HOLOCAUST VICTIMS: Swiss Committee Finds 62,000 Dormant Bank Accounts
The Volcker Committee charged with identifying the dormant accounts at
Swiss banks has found 62,000 of these accounts, an "unbelievably high"
number, the tabloid Blick reported without citing sources.

The paper said lawyers for the Holocaust class action suit in the U.S.,
informed of the details, promptly put into question 1.25 bln usd global
settlement reached with the Swiss banks in 1998.

"There will not be much left of the 1.25 bln usd for other Holocaust
victims," one of the lawyers in the case, Michael Hausfeld, told Blick.

Swiss Bankers Association chief Niklaus Blattner said 1998's
global 1.25 bln usd Holocaust settlement between Swiss banks and
plaintiffs of the U.S. class action suit is "in no way or form"
endangered. Blick newspaper reported that 62,000 dormant accounts were
found by the Volcker Commission.

Blatter added that the recent turbulences expressed in the press are
"normal" in such a process.

Swiss Banking Association chairman Georg Krayer added he has no
knowledge of a draft of the Volcker Commission's final report.
(AFX News 9-9-1999, 9-10-1999)

HONDA MOTOR: May Face Criminal Probe On Alleged Evidence Concealment
Allegations that American Honda Motor Co. concealed evidence from car
dealers that sued the company over an illegal kickback scheme have
prompted a federal judge to consider a criminal investigation of the
matter, the Torrance-based auto importer acknowledged.

If proved, the charges could void a $ 316-million settlement reached in
October of a class-action suit by 1,800 dealers against American Honda,
the U.S. arm of Honda Motor Co. of Japan. That would open the gates for
those dealers and for others that have not settled with the company to
seek larger payments.

U.S. District Judge J. Frederick Motz said in a recent closed hearing in
Baltimore that the allegations "could become the subject of a criminal
investigation" of American Honda, its general counsel and two of its
outside attorneys. The judge's remarks were published by Bloomberg News,
which said it had just obtained a copy of the Aug. 5 hearing transcript.

All of the dealer suits center on a bribery scandal that has plagued
American Honda since the late 1980s. The dealers contended they were
hurt financially in the '80s and early '90s when some company executives
demanded and received more than $ 15 million in cash and goods from
dealers in exchange for extra shipments of hot-selling Accords and
Preludes or the granting of franchises for additional dealerships.

The dealers that sued Honda contended they were penalized for refusing
to pay the bribes because they could not obtain sufficient supplies of
cars to compete effectively with their bribe-paying competitors.

Now, a group of dealers that has not settled with Honda charges that
company lawyers obstructed justice by hiding for more than five months
an affidavit the dealers had sought for use in their civil suit, which
followed a lengthy criminal trial in which more than a dozen former
Honda marketing executives and Honda dealers pleaded guilty or no
contest to a variety of federal fraud, bribery and perjury charges.

The affidavit was prepared in 1993 to show prosecutors in the criminal
trial that Honda had taken steps to squelch the bribery activities. But
Honda lawyers in the civil case denied that the affidavit existed when
asked to produce it last year.

A copy was discovered in Honda's records in March and was turned over to
lawyers for the dealers that didn't settle their cases. Motz said in
court papers that it was "absolutely inexplicable" that Honda's
attorneys didn't remember the affidavit.

In a statement, American Honda said the affidavit was "immediately
provided to the court and the plaintiffs" when it was finally discovered
this year. The company said it "openly apologized in court for failure
to provide these documents sooner." Honda declined to comment further
because of continuing litigation.

Lawyers for the dealers asked Motz to impose financial sanctions and to
hold Honda automatically liable for damages in four pending dealers'
suits over the bribes. Some dealers said they lost more than $ 50
million in sales by being denied cars.

In a case that would seem to expose Honda to more litigation, a federal
appeals court ruled last month that growers who settled claims against
DuPont Co. over a defective fungicide could throw out the agreement
after they found that DuPont had hidden evidence.

The U.S. 9th Circuit Court of Appeals said the growers could keep the $
2.5 million already paid out in the settlement and still bring new suits
to recover their losses. (Los Angeles Times 9-9-1999, Bloomberg News was
used in compiling this report.)

ILLINOIS: Motorists Lose Bid To Revive Racism Claim Against Police
The U.S. District Court recently held that a group of minorities lacked
standing under Title VI of the Civil Rights Act to seek equitable relief
against future conduct by the Illinois State Police in allegedly
stopping motorists based on race. Chavez v. Illinois State Police, 1999
U.S.Dist. Lexis 11976 (N.D. Ill., July 30).

The plaintiffs were represented by attorneys working for or with the
American Civil Liberties Union, including Harvey M. Grossman, Jonathan
K. Baum of Katten Muchin & Zavis, and Richard J. O'Brien Jr. of Sidley &
Austin. The attorneys representing the defendants were assistant
Illinois attorneys general or special or former assistants, including
Thomas A. Ioppolo, Iain D. Johnston and Jeremy D. Margolis.

The plaintiffs claimed that state troopers stopped black and Hispanic
motorists based on their race and searched them without legally
sufficient cause. The suit alleged that the Illinois State Police and
individual officers had violated Title VI, 42 U.S.C. sec2000d, which
forbids the use of federal funds in programs that intentionally
discriminate based on race as well as programs that have a disparate
effect on racial minorities. The statute expressly eliminates the 11th
Amendment immunity that typically protects states from suit, but it
allows only prospective relief as a remedy -- not damages for a
particular violation.

The plaintiffs were one African-American and two Hispanic drivers who
claimed that they had been illegally stopped by the defendants. Their
claims for relief under Title VI earlier had been stricken, and they
moved here for reinstatement of that relief as well as for class
certification. U.S. District Judge Blanche M. Manning denied the
plaintiffs' motions.

The earlier dismissal ruling had been based largely on City of Los
Angeles v. Lyons, 461 U.S. 95 (1983), where the plaintiff claimed that
he had been subjected to an illegal chokehold by a Los Angeles police
officer. In denying his request for future equitable relief, the Lyons
court found that the plaintiff lacked standing to seek it because he
failed to allege that (1) he would have another encounter with the Los
Angeles police and (2) that all Los Angeles police officers always choke
citizens who have run-ins with the law or that the department authorized
officers to act in such a manner.

Manning had applied Lyons to hold that the plaintiffs had to establish
continuing, present adverse effects and a real and immediate threat of
future injury to allow the court to consider prospective relief.

The plaintiffs' motion to reinstate thus constituted an effort primarily
to circumvent the effect Lyons had on their claim. They first argued
that Guardians Association v. Civil Service Commission of the City of
New York, 463 U.S. 582 (1983), authorized an award of prospective relief
in a Title VI context even without an allegation that the plaintiffs
would be subject to the challenged practices in the future. In
Guardians, through splintered opinions, the U.S. Supreme Court Court
awarded certain relief to minority plaintiffs who contended that written
police examinations had a discriminatory effect on their seniority.

Manning found, however, that Guardians dealt primarily with the type of
proof necessary to establish a private cause of action under Title VI,
not with the personal stake necessary to provide standing to support a
grant of prospective relief.

The plaintiffs also contended that Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992), interprets Title VI to confer a procedural right to
seek prospective relief even though they may not be subject to a
concrete risk of future harm. Manning again disagreed with the
plaintiffs' interpretation and determined that, even if Title VI created
such a procedural right, the standing requirement of Article III of the
Constitution still remained. As such, the judge said, the plaintiffs
would have to establish that prospective relief would remove the future
harm that would otherwise affect them personally.

The plaintiffs then offered two circumstances that they claimed had
changed since Manning's initial ruling and that supposedly supported a
different outcome. One circumstance was new statistical evidence
purportedly showing a high likelihood that Hispanic motorists would be
the subject of discriminatory highway stops and that the named Hispanic
plaintiffs therefore were in imminent danger of being stopped.

Manning, however, invoked substantial Supreme Court and other
authorities for the proposition that the imminent harm required by Lyons
is qualitative -- not quantitative. Thus, a plaintiff must establish
that he is personally subject to a sufficient risk of future harm to be
eligible for prospective relief, not that someone else might be subject
to such a risk. The plaintiffs' statistical evidence here was not
directed at any of the named plaintiffs' chances of being wrongfully
stopped. The use of statistical evidence to establish standing for
prospective relief thus was unavailing.

The other changed circumstance the plaintiffs asserted was new
affidavits of three named plaintiffs. One of them contended that even
though he lived in New Mexico, he felt confident" that he would travel
in Illinois in the future. Manning found that an expression of such
confidence was speculative and did not give rise to the kind of
immediacy required by Lyons.

Another named plaintiff's affidavit indicated that while he also lived
out of state, he traveled in Illinois frequently. The last time he was
stopped by the Illinois State Police, however, was in 1993. In light of
the fact that he had not been stopped in six years, Manning found that
any continuing present adverse affect from the defendants' alleged
practices was not genuinely imminent.

A third plaintiff was incarcerated on state and federal drug charges,
and he therefore could not satisfy the imminent harm requirement of
Lyons for that reason.

As a further argument, the plaintiffs contended that if they lacked
standing to pursue their claim for equitable relief, they will have
suffered an injury for which there is no redress. Manning disagreed. She
noted that just because the plaintiffs may not have a remedy for
prospective relief under Title VI, that does not mean that they lack any
action for damages for allegedly illegal stops on other legal theories.
She also observed that her position on equitable relief was nothing new,
but that the plaintiffs chose to pursue their equitable relief claim as
a litigation strategy for years with substantially the same evidence
despite the thousands of minority motorists supposedly stopped on the
basis of their race.

Manning therefore denied the plaintiffs' motion to reinstate. She also
denied the plaintiffs' motion to certify a class of Hispanic motorists
in connection with the Title VI claims. Because the named plaintiffs
lacked standing to seek prospective relief, they could not front a
putative class of Hispanic motorists seeking prospective relief. For the
State By Don R. Sampen Sampen, an assistant Illinois attorney general,
is an experienced Chicago litigator. A graduate of Northwestern
University School of Law, Sampen has written extensively and taught
trial practice and other courses at area law schools. His column appears
semimonthly. (Chicago Daily Law Bulletin 9-7-1999)

LIVENT INC: NY Investment Funds Sue In Man., Joining Rank Of plaintiffs
Two New York investment funds Wednesday added their names to the list of
plaintiffs suing former officers and auditors of bankrupt entertainment
company Livent Inc.

Cerberus Capital Management LP and Tri-Links Investment Trust filed a
purported class action suit in U.S. District Court in Manhattan, piling
more trouble on the once high-flying producer of Broadway mega-hits
"Ragtime," "Showboat" and "Fosse."

The most recent suit, brought on behalf of bondholders of Livent 9-3/8
percent senior notes due 2004, comes on top of several related suits by
shareholders, other bondholders and various defendants suing each other
in the turbulent aftermath of Livent's bankruptcy filing in November

Livent's assets were sold to SFX Entertainment Inc. last month for $96

The Cerberus and Tri-Links suit names Michael Ovitz, the entertainment
executive who invested in Livent and brought to light what was later
described by the U.S. Securities and Exchange Commission as "a pervasive
eight-year fraudulent accounting scheme by the former senior management
of Livent."

The former senior management, including Canadian impresarios Garth
Drabinsky and Myron Gottlieb who are targets of a 16-count criminal
fraud indictment by the U.S. Attorney's office, were also named in the
new bondholder suit.

In addition, the filing names Roy Furman, co-founder of investment bank
Furman Selz, who Ovitz brought in as chief executive of Livent, and
Deloitte & Touche LLP, Livent's independent auditors both before and
after it declared bankruptcy.

The 92-page complaint charges the auditors with issuing unqualified
opinions of Livent's financial statements that were materially false and
misleading seeks unspecified compensatory damages, interest and attorney
costs. (Reuters)

LOCKHEED MARTIN: Johnnie Cochran Joins Workers' Cause For Equality
Heavyweight trial lawyer Johnnie Cochran Jr. has weighed in on a legal
battle involving workers at Lockheed Martin Aeronautical Systems who say
a good ol' boy culture of discrimination and intimidation pervades the
Marietta plant.

Cochran, who represented O.J. Simpson in his murder trial, has joined
the workers' legal team, said Audrey Tolson, a lawyer with Cochran's
Atlanta firm, Cochran Cherry Givens & Smith.

The workers have filed a discrimination complaint with the Equal
Employment Opportunity Commission, the first step in bringing a lawsuit,
said Josie Alexander, the attorney who filed the complaint. She said the
legal team also has signed on Hezekiah Sistrunk Jr. of Sistrunk &
Associates because of his experience with class action lawsuits. "We're
adding depth and experience to our legal team," she said. "Both are
experienced trial lawyers." She said the EEOC complaints allege
discrimination for reasons of race, gender and disability.

LMAS President Tom Burbage has said the plant is investigating the

The plant has 9,000 employees, about 16 percent of them minorities.
Plant officials said they won't discuss how many black people are in
supervisory posts or how many complaints of racism have been handled
internally within the plant.

"I would love to be able to tell you, but under the threat of class
action lawsuit . . . we don't feel comfortable breaking it down
further," said Peter Simmons, Lockheed spokesman. "We are not prepared
to discuss this matter in a public forum."

Several workers and about 30 supporters held a news conference --- in
the mode of a prayer meeting --- in front of the plant Wednesday to
pressure the management to acknowledge the validity of their complaints.

"They'll walk right past you and give their friend a promotion, and he
came in as a bartender," said Ferris Yarbrough. "The supervisor starts
going hunting with this young man and soon he's your manager."

The Rev. E.W. Moore, a spokesman for the group claiming discrimination,
said he believed Burbage would try to remedy the situation but pushed
him to take action.

One white female was harassed by her supervisor and a subcontractor
tried to intimidate her by urinating around her desk and spilling
tobacco juice on her papers, Alexander said. "It gets stranger all the
time," she said.

In August, Joe Banks of Decatur, a 20-year union mechanic for Lockheed,
said someone draped a noose over his work area. Banks, who is described
by co- workers as outspoken, said he has repeatedly run into racism at
the plant over the years and claimed the Ku Klux Klan recruits members

Yarbrough said someone left him a noose in the early 1990s, and he said
white workers who buck the good ol' boy system face intimidation, too.
"There is no real pattern to it," he said. "It's when you don't fit the
mold or are outspoken." (The Atlanta Journal and Constitution 9-9-1999)

PLANTIER: Diabetic Inmates’ Suit On Remand For Individualized Analysis
Rouse v. Plantier et al, No. 98-5139; Third Circuit; opinion by Alito,
U. S.C.J.; filed June 29, 1999. Before Judges Nygaard, Alito and Lewis.
On appeal from the District of New Jersey. Sat below: Judge Orlofsky.
DDS No. 13-8-0737; (157 N.J.L.J. 482)

Plaintiffs, a class of insulin-dependent diabetic inmates, have diverse
medical needs and, in light of the different levels of care owed to each
group of plaintiffs, the district court erred in holding that all
members of the plaintiff class alleged a violation of their Eighth
Amendment rights; on remand the district court should address the
situation of each relevant category of plaintiffs, and also analyze
separately the situation of each of the defendants who is being sued for
damages in an individual capacity; the summary judgment in favor of
plaintiffs is reversed.

Plaintiffs are a class of past, present, and future insulin-dependent
diabetic inmates at the Adult Diagnostic and Treatment Center  .D.T.C.),
who filed suit claiming that various corrections officials and employees
were deliberately indifferent to plaintiffs' serious medical needs, in
violation of the Eighth Amendment. In this appeal, defendants challenge
the District Court's refusal to grant summary judgment in their favor on
the grounds of qualified immunity.

Defendants moved for summary judgment on the merits of plaintiffs' claim
and, alternatively, on the grounds of qualified immunity. In support of
their respective arguments, both parties submitted the reports of
medical experts. None of the experts disputed that plaintiffs suffer
from insulin-dependent diabetes mellitus, which all agree is a serious

Considering the experts' reports, the District Court granted summary
judgment to Commissioner Fauver on the merits of the Eighth Amendment
claim and dismissed as moot the summary judgment motion on the grounds
of qualified immunity, concluding that plaintiffs had failed to
demonstrate Fauver's culpability. See Rouse v. Plantier, 987 F. Supp.
302, 312, 315 n.13 (D.N.J. 1997) (Rouse I).

With respect to the remaining defendants, however, the District Court
denied summary judgment on both grounds. Rouse v. Plantier, 997 F. Supp.
575, 580 (D.N.J. 1998) (Rouse II).

Held: The District Court erred in concluding on a wholesale basis that
the plaintiffs alleged a violation of their Eighth Amendment rights. The
experts' reports make clear that not all insulin-dependent diabetics
require the same level of medical care.

The reports show that there are at least two groups of insulin-dependent
diabetic plaintiffs in this case. The first group
consists of those insulin-dependent diabetics whose blood-sugar
levels consistently fluctuate to abnormal levels (i.e., the "unstable"
plaintiffs). These diabetics require intensive medical treatment in
order to regulate their blood-sugar levels to normal or near-normal
physiological levels, which, as the experts' reports demonstrate, is the
primary goal of diabetes management. The other group is comprised of
those insulin-dependent diabetics whose blood-sugar levels remain at or
near normal physiological levels over time (i.e., the "stable"
plaintiffs). These individuals have already achieved the primary goal of
diabetes management and therefore do not require the same level of
intensive medical treatment as their unstable counterparts.
Consequently, it is possible that conduct that violates the Eighth
Amendment rights of the unstable plaintiffs may not violate the
constitutional rights of the stable plaintiffs.

In light of the diverse medical needs of, and the different level of
care owed to, each group of plaintiffs, the District Court erred in
holding that all members of the plaintiff class alleged a violation of
their Eighth Amendment rights. Based on the evidence in the summary
judgment record, there may be one or more subgroups of plaintiffs as to
whom particular aspects of the care allegedly provided was not
consistent with Eighth Amendment requirements and other subgroups as to
whom particular aspects of the care was constitutionally adequate. On
remand, therefore, the court should address the specific needs of each
such group, considering, for instance, the appropriate amount of glucose
testing, the need for a special diet, and the plaintiffs' general
compliance with their medical appointments and prescribed dietary plans.
Then, the District Court should consider the appropriate level of care
due under the Eighth Amendment. Only after the latter determinations are
made should the District Court determine whether defendants' actions
with respect to each of these matters and with respect to each relevant
subgroup of plaintiffs were consistent with the requisite level of care
owed under the Eighth Amendment at the
times in question.

The constitutional right asserted by the plaintiff class -- the Eighth
Amendment right of a prisoner to be free from deliberate indifference to
his or her serious medical needs -- is one that obviously varies
depending on the medical needs of the particular prisoner. Yet here, the
plaintiff class is a medically diverse group. Moreover, the violations
for which damages are sought allegedly occurred over a span of years,
during which the relevant medical standards may have changed. And
defendants also vary, including both a lay supervisor and medical
professionals. If this case ultimately goes forward as a class action
for purposes of damages, the scope of the qualified immunity afforded
each individual defendant should not be any different than it would be
if that defendant were instead faced with separate damage actions filed
on behalf of each member of the plaintiff class. Thus, if an individual
damages action by plaintiff P1 against defendant D1 would not survive a
motion for summary judgment based on qualified immunity, either because
D1's alleged conduct did not constitute an Eighth Amendment violation as
to P1 or because the illegality of D1's conduct was not clearly
established at the time in question, then in the class-action context D1
should likewise be free from the burden of going to trial on the claims
of P1 and all other similarly situated members of the plaintiff class.
For these reasons, the case is remanded to the District Court for it to
consider the individual needs of each relevant subgroup of

The District Court on remand should not only address the situation of
each relevant category of plaintiffs, but it should also analyze
separately the situation of each defendants who is sued for damages in
an individual capacity.

When a defendant asserts the defense of qualified immunity, it is
necessary to determine whether a reasonable official in the position of
that defendant would have known that his or her actions were
constitutional in light of the clearly established law and the
information the official possessed. In making this determination in this
case, the District Court went astray in two respects.

First, the District Court should have addressed the specific conduct of
each of the individual defendants in determining whether that
particular defendant acted in an "objectively unreasonable" manner. The
District Court determined, without an individualized explanation, that
all of the defendants (except Commissioner of Inland Revenue of Hong
Kong of Revenue Tower, 5 Gloucester Road, Wanchai, Hong Kong Fauver) had
acted in an objectively unreasonable manner. The District Court simply
stated that " defendants knew what the appropriate level of care for a
diabetic was and knew that the level of care provided was far short of
it." Rouse I, 987 F. Supp. at 315. Nowhere in the District Court's
opinion did it analyze the specific actions of each of the individual
defendants. Nor is there any evidence in the record that allows one to
make this determination on appeal.

The need for an individualized analysis is apparent in this case because
one of the individual defendants, the acting superintendent, is a lay
administrative official. It is well-settled that liability under 42
U.S.C. 1983 may not be based on the doctrine of respondeat superior, and
there is nothing in the record or the District Court's opinion setting
forth the basis for the conclusion that the acting superintendent should
have known that his conduct constituted an Eighth Amendment violation.

Second, the District Court should have considered the reasonableness of
each defendants' actions with respect to each of the relevant categories
of plaintiffs. The District Court recognized that not all plaintiffs are
similarly situated but proceeded nevertheless to consider plaintiffs'
claim on a classwide basis. This analysis may have subjected some
defendants to the possibility of personal liability even though the care
they provided may have been constitutionally sufficient.

Therefore, the District Court's determination that all defendants failed
to act in an objectively reasonable manner in the care that they
provided to all plaintiffs cannot stand. Accordingly, the case is
remanded to the District Court for it to determine whether each
individual defendant acted in an objectively reasonable manner with
respect to the particular needs of each relevant group of plaintiffs.

For appellants -- Peter Verniero, Attorney General (Joseph L. Yannotti,
Assistant Attorney General, Mary C. Jacobsen, Assistant Attorney
General, Jayroe Wurst, Deputy Attorney General, and William P. Flahive,
Deputy Attorney General). For appellees -- Lawrence S. Lustberg and Mark
A. Berman (Gibbons, Del Deo, Dolan, Griffinger & Vecchione).
(New Jersey Law Journal 8-2-1999)

SCHOLASTIC CORP: Will Defend Vigorously Securities Suit In NY
As previously reported, three purported class action complaints were
filed in the United States District Court for the Southern District of
New York against the Company and certain officers seeking, among other
remedies, damages resulting from defendants' alleged violations of
federal securities laws. The complaints were consolidated. The
Consolidated Amended Class Action Complaint was served and filed on
August 13, 1997. The Complaint was styled as a class action, In re
Scholastic Securities Litigation, 97 Civ. 2447 (JFK), on behalf of all
persons who purchased Company Common Stock from December 10, 1996
through February 20, 1997.

The Complaint alleged, among other things, violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
thereunder, resulting from purportedly materially false and misleading
statements to the investing public concerning the financial condition of
the Company. Specifically, the Complaint alleged misstatements and
omissions by the Company pertaining to adverse sales and returns of its
popular Goosebumps book series prior to the Company's interim earnings
announcement on February 20, 1997.

In an order dated December 14, 1998, the United States District Court
for the Southern District of New York granted the Company's motion to
dismiss the Complaint. In dismissing the Complaint, the Court held that
the plaintiffs had failed to state a claim upon which relief could be
granted and granted plaintiffs leave to amend and refile the Complaint.

Pursuant to that order, plaintiffs filed a second Consolidated Amended
Class Action Complaint, on or about February 16, 1999, alleging
substantially similar claims against the Company and one of its
officers. The Company continues to believe that the litigation is
without merit and will continue to vigorously defend against it.

TOBACCO LITIGATION: GIO Directors Quit Over Irreconcilable Differences
The two directors of GIO Australia Holdings Ltd who resigned have
confirmed they quit as a result "irreconcilable differences" with other
board members.

"Mr Bruce Hogan and Mrs Marina Darling said that irreconcilable
differences had arisen among some members of the Board which had placed
them in an untenable position," the statement, issued at the direction
of Mr Hogan, said. "As a result, they have tendered their resignations,
albeit with the greatest reluctance."

Mr Hogan, who was deputy chairman of the GIO board, told AAP that he was
unable to add to the statement for legal reasons. However he stressed
that his resignation had nothing to do with the class action launched
against GIO by Melbourne law firm Maurice Blackburn Cashman.

Andrew Kaspen, a lawyer working on the action, told AAP the resignations
are a significant development, but will not greatly affect the action's

The class action is on behalf of GIO shareholders who did not accept AMP
Ltd's $5.35 per share offer because GIO directors advised shareholders
that it was inadequate.

Mrs Darling confirmed separately that the action played no part in her
decision to resign.

Neither would elaborate on the issues which caused the "irreconcilable
differences", but the Australian Shareholders Association said it
believed the differences related to the transfer of certain businesses
between GIO and its major shareholder and insurance rival AMP. AMP won
control over GIO in January after an acrimonious takeover battle.

ASA chairman Ted Rofe told AAP that the association was concerned by
reports of tension on the GIO board about strategy and proposed business
arrangements. "Obviously it is a very difficult situation, any
arrangement between GIO and AMP, because they are competitors," Mr Rofe
said. "As you know, there've been suggestions of transferring GIO's
funds management business to AMP and transferring AMP general insurance
business to GIO. "And obviously there are likely to be difficult
questions about a fair price and a fair deal and that sort of thing," Mr
Rofe said.

Mr Hogan and Mrs Darling separately told AAP that they were unable to
comment on Mr Rofe's statements. For its part, AMP said the resignations
were a matter for GIO.

Mr Rofe also expressed concerns about the whether the interests of GIO's
minority shareholders would be guaranteed, now that the last directors
to have been appointed before the AMP takeover have resigned.
"All directors of GIO now are in effect there at the whim of AMP," he
said. "Now, when there are commercial transactions between AMP and GIO,
there's an important question of perception from the 68,000 non-AMP
shareholders in GIO. "In the circumstances, it is essential that the
board of GIO is seen to be acting in the interests of all shareholders,
particularly the 68,000 individuals, and not exclusively in the
interests of its major shareholder," Mr Rofe said.

An AMP spokeswoman said it was "satisfied the GIO board is in good hands
and well equipped to represent all shareholders going forward."

Shares in GIO closed two cents firmer at $2.54 while AMP shares ended 15
cents lower at $15.40.

A lawyer working on the class action against insurer GIO Australia
Holdings Ltd said the resignation of two GIO board members is a
significant development, but will not greatly affect the action's

GIO's deputy chairman Bruce Hogan and director Marina Darling both
handed in their resignations today. The pair were the only directors not
to have been replaced after AMP Ltd won control of GIO in a hostile
takeover bid. "The resignations don't impact on the claim that has been
brought against the 11 respondents in the civil court," said Andrew
Kaspen, of Melbourne law firm Maurice Blackburn Cashman. "A number of
respondents have resigned previously and they have been named."

The action names GIO, its independent expert Grant Samuel and the
nine-member board in place during the takeover bid.

Mr Kaspen told AAP that the resignations are a "significant
development", reinforcing what the firm believes to be "a very strong
claim." "This does not happen for no reason. "I think the fact that
these people have resigned is a direct function of the pressure that the
proceedings have put the respondents under."

An AMP spokeswoman said the financial services giant is not making any
comment at present. (AAP Newsfeed 9-10-1999)

TOBACCO LITIGATION: Saved Lump-Sum Damages But May Face Giant Pay-Outs
Thanks to the 3rd District Court of Appeals ruling, the tobacco industry
might have escaped a budget-busting punitive damage award in the ongoing
Miami tobacco trial. But that doesnt mean the industry can avoid some
large pay-outs in the near future.

Ruling by a three-judge appeals court panel reversed a decision by
Miami-Dade Circuit Judge Robert Kaye that would allow a jury during the
upcoming second phase of the trial to assess a single punitive damage
award against the industrys leading cigarette makers for their role in
hiding the dangers of smoking. Such an award could have run into the
billions of dollars.

Now, a separate punitive award will have to be made for each individual
case in the largest tobacco class action in history. In July, a jury
determined that the industry conspired to hide the dangers of smoking
from the public and knowingly sold unsafe products to consumers. The
jury, however, could not award damages at that time. That was left for
the second phase of the trial.

Two plaintiffs, selected as representatives of the class of all smokers
in the state of Florida, were to have their cases heard this week,
perhaps as soon as today.

The 3rd Districts ruling helped the industry avoid its biggest fear. Had
the jury returned in this next phase with a billion-dollar damage award,
the industry would have had to post a bond in order to appeal it. Such a
bond would have forced the industry to come up with hundreds of millions
in cash -- something that isnt easy for any company, no matter how

Now, that wont be necessary. But that doesnt make the ruling a major
turning point in the trial, says anti-smoking advocate Richard Daynard,
director of the Tobacco Control Resource Center in Boston.

The defendant companies -- Philip Morris, R.J. Reynolds, Brown &
Williamson Tobacco Corp., Lorillard Tobacco Co. and Liggett Group Inc.
-- could end up paying more in punitive damages in the long run, he

Juries may be willing to award cumulatively what may be a larger amount
of money, says Daynard. And judges may be willing to uphold them.
Moreover, in a decision late last month, the Florida Supreme Court has
given its blessing to titanic punitive awards. On Aug. 26, the court
upheld a $ 31 million punitive damages award against Owens-Corning
Fiberglas Corp. in an asbestos exposure case.

The case involved a single plaintiff who developed a rare form of cancer
from exposure to asbestos fibers. A Palm Beach Circuit Court jury in
1997 found that the mans compensatory damages totaled $ 1.8 million, but
awarded punitives of almost 18 times that amount.

Florida law presumes any punitive award that is more than three times
the amount of compensatory damages is excessive. But the high court said
that the presumption can be overridden when the defendants conduct is
particularly egregious. The court also noted that the $ 31 million award
was less than 2 percent of Owens-Cornings net worth. The tobacco company
defendants could find themselves in a similar situation. Worldwide,
cigarettes are a $ 400 billion industry. (Palm Beach Daily Business
Review 9-9-1999)

TOBACCO LITIGATION: Second Phase Of Landmark Suit Postponed To Oct 12
A federal judge postponed the second phase of a landmark law suit
against US tobacco companies to allow an appeal by the plaintiffs, a
court official said Friday.

Judge Robert Kaye postponed the hearing until October 12 so that lawyers
representing smokers in the class action suit could petition the Third
District Court of Appeals.

"That will give time for the Rosenblatts (plaintiff's lawyers) to
petition the Third District Court of Appeals for a rehearing on its
decision of last Friday ... so they can ask them to reconsider," Circuit
Courts spokesman Morton Lucoff said.

In what was perceived as a setback for the 500,000 smokers represented
by the suit, the court ruled last week that damage claims against the
industry must be considered on a case-by-case basis.

Under the jury's verdict, which found the industry liable for selling
products it knew caused a host of fatal diseases, tobacco companies were
expected to be ordered to pay billions of dollars in damages, according
to experts. (Agence France Presse 9-10-1999)

TOTAL RENAL: Carboline Sued Over Worker Illness At Nuclear Plant, Texas
As previously reported, Carboline Company, a wholly-owned subsidiary of
Total Renal Care Holdings Inc. has been named as one of 30 corporate
defendants in Rufino O. Cavazos, et al., vs. Ceilcote Company, et
al.("ROC"), Cause No. 89-CI-12651, in the 73rd Judicial District Court
of Bexar County, Texas, filed in March 1990, and in similar suits
subsequently filed on behalf of individuals (and, where applicable,
their spouses and children) employed at the Comanche Peak Nuclear Plant
and the South Texas Nuclear Plant.

The workers contend they were exposed to various solvents during their
employment at the facilities, allegedly resulting in respiratory and
neurological ailments. ROC has been reduced through voluntary dismissals
and summary judgments to approximately 700 worker-Plaintiffs. A similar
suit, Bernice O. Pierce, et al. v. Southern Imperial Coatings Corp. et
al. ("Pierce"), Case no. 96-CI-12756, in the Judicial District Court of
Bexar County, Texas, involves approximately 200 worker-Plaintiffs.

Another case, Mary M. Gunn, et al. v. Carboline Company, et al.
("Gunn"), Case No. 93-470, in the 4th Judicial District Court of Rusk
County, Texas, involves approximately 200 Plaintiffs. All three (3)
cases are in the discovery phase. ROC and Pierce have been the subject
of several recent motions for summary judgment which have decreased
significantly the number of Plaintiffs involved. None of the cases are
set for trial at this time. Carboline has denied all liability in these
cases and is conducting a vigorous defense.

Several of Carboline's insurance carriers, and Carboline, are defending
the lawsuits under a cost-sharing agreement. The Company believes that
the ultimate resolution of ROC, Gunn and Pierce will not have a material
adverse effect on the Company's financial position or results of

TOTAL RENAL: Decries Merit Of Securities Suit In CA
Following the announcement on February 18, 1999 of our preliminary
results for the fourth quarter of fiscal 1998 and the full year then
ended, several class action lawsuits were filed against Total Renal Care
Holdings Inc. and certain of our officers in the U.S. District Court for
the Central District of California. The complaints are similar and
allege violations of federal securities laws arising from alleged false
and misleading statements primarily regarding our accounting for the
integration of RTC into TRCH and request unspecified monetary damages.

The Company believes that all of the claims are without merit and we
intend to defend ourselves vigorously. We anticipate that the attorneys'
fees and related costs of defending these lawsuits should be covered
primarily by our directors and officers insurance policies and we
believe that any additional costs will not have a material impact on our
financial condition, results of operations or cash flows.

TOTAL RENAL: Subs. Dryvit Sued By Owners Of Structures Clad With EIFS
Dryvit Systems, Inc., a wholly-owned subsidiary of Total Renal Care
Holdings Inc., is a defendant or co-defendant in numerous separate but
related lawsuits, some of which have sought to certify classes comprised
of owners of structures clad with exterior insulated finish systems
("EIFS") products manufactured by Dryvit and other EIFS manufacturers.

On September 18, 1996, the North Carolina Court presiding over one of
the state court cases, Ruff et al. v. Parex, Inc., et al., entered an
order certifying a class of North Carolina owners of single family or
multi-family residential dwellings which had EIFS installed during the
period of 1969 to the present. Subsequent to that ruling, Dryvit and
other manufacturers filed a motion to bring a third-party complaint
against the builders of those dwellings to establish that any alleged
damage was the result of poor construction. The trial court denied that
motion but acknowledged that the manufacturers were being denied
significant rights since claims against builders for indemnity and/or
contribution were possibly being extinguished by the running of the
statutes of repose and/or statute of limitations. Dryvit and several
other manufacturers appealed the trial court's decision.

On December 1, 1998, the Appellate Court reversed the Ruff trial court's
denial of the EIFS manufacturer's motion to bring a third-party
complaint against builders and others and remanded the case to the trial
court for further proceedings urging it to exercise its discretion and
decide whether or not to grant the manufacturer's motion to add third

On remand, the Ruff trial court ruled on numerous motions filed by both
plaintiffs and defendants. In its June 1999 Order and Opinion, the trial
court denied defendants' motion to decertify the class and denied
defendants' motion to add third-party defendants to the class action.
The trial court further ordered that each defendant EIFS manufacturer
will be afforded a separate trial on liability and damages; that
liability and damage issues will be bifurcated for trial; and scheduled
the first liability trial for October 4, 1999 against Dryvit. The trial
court held that plaintiffs should be permitted to proceed with their
class action with respect to only two liability issues: (a) whether
Dryvit's product was defectively designed; and (b) whether Dryvit
had and subsequently breached a duty to warn homeowners of the hazards
inherent in use of its product.

Similar attempted class actions have been filed in Alabama, Georgia, New
Jersey, Illinois and Texas. Dryvit has also been recently named in an
attempted class action in North Carolina comprised of owners of
structures clad with an EIFS type product manufactured by Dryvit known
as Fast Track 4000. Dryvit intends to vigorously contest class
certification and liability in all cases.

In addition, Dryvit and other parties (contractors, architects,
distributors, EIFS applicators, roofers, sealant suppliers, sealant
contractors and window manufacturers) have been named in approximately
350 pending homeowner and commercial building lawsuits, most of which
involve single family residential structures. The majority of these
suits have been filed in North Carolina, Alabama and South Carolina by
individual homeowners who either have opted out of the Ruff class action
or have filed complaints against their builder, which then brings a
third-party action against Dryvit.

Certain of Dryvit's insurers have paid or are currently paying a portion
of Dryvit's defense costs in the class actions, and individual
commercial building and homeowner lawsuits involving structures that
were built during or prior to their insurance coverage periods. In
addition, these insurance carriers have regularly funded settlement of
the individual homeowner and commercial building cases when appropriate.

Two of Dryvit's primary insurance carriers have reported that they have
exhausted their policy limits through the payment of settlements. In
addition, Dryvit has settled with and released two of its other primary
insurers. As a result, Dryvit has sought participation in the EIFS
litigation from First Colonial Insurance Company, the Company's
wholly-owned captive insurance company ("First Colonial") and certain
umbrella insurance companies. Dryvit, First Colonial and one of Dryvit's
umbrella carriers have recently entered into two defense cost sharing
agreements to cover both the individual and class action cases. Dryvit's
insurance carriers have raised a number of coverage issues in
reservation of rights letters, and coverage litigation could resume in
the event of a breach of the cost-sharing agreements.

Dryvit believes that the damages being sought by the plaintiffs in the
EIFS litigation are covered under existing insurance policies and that
it has adequate insurance coverage.

TOTAL RENAL: Subsidiary Bondex Decries Merit Of Asbestos Suit
As previously reported, Bondex International, Inc., a wholly-owned
subsidiary of Total Renal Care Holdings Inc. ("Bondex"), was one of
numerous corporate defendants in 395 then pending asbestos-related
bodily injury lawsuits filed on behalf of various individual in various
jurisdictions of the United States. Subsequently, an additional 208 such
cases have been filed and 132 such cases which had been filed were
dismissed with prejudice without payment pursuant to summary judgment or
stipulation of the parties, leaving a total of 471 such cases pending.

Bondex continues to deny liability in all asbestos-related lawsuits and
continues to vigorously defend them. Under a cost-sharing agreement
among Bondex and its insurers, the insurers are responsible for payment
of a substantial portion of defense costs and indemnity payments, if
any, with Bondex responsible for the balance.


S U B S C R I P T I O N  I N F O R M A T I O N

Class Action Reporter is a daily newsletter, co-published by Bankruptcy
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Washington, DC.  Theresa Cheuk and Peter A. Chapman, editors.

Copyright 1999.  All rights reserved.  ISSN 1525-2272.

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