dissenting:
I would reverse.
In product liability cases involving the health and well being of Americans, such as exposure to carcinogens, or, as here, rebanee on possibly defective heart valves, a primary settlement difficulty is the inability to predict whether any given claimant will, in the future, suffer cancer or heart failure or similar harm. In the mean*1155time, however, all victims may suffer anxiety over fear of catastrophe. Such cases, therefore, are typically settled by compensating immediately for all emotional distress (as well as any hard economic losses incurred to date) and leaving for the future any claim for cancer or heart failure or a similar such event should it actually occur. This model is a practical means of closing thousands of individual claims, for very few claimants ever really need to call on the second half of the settlement formula. If they do, then a future remedy is available.
The present case and settlement at issue were based on that model. Regrettably, however, the panel opinion denies the No-dines the benefit of the second half of the settlement formula. Parting company with the panel, I would construe the agreement as clearly carrying out the conventional model described. Here is why.
The key paragraph in the settlement agreement stated:
B. Subject to the remainder of this Paragraph, the term “BSCC Claims” shall mean any and all claims of injury, loss, or compensatory or punitive damage deriving from or related to any alleged defect in or alleged representation, misrepresentation, or omission concerning any Bjork-Shiley Convexo-Concave prosthetic heart valve (“BSCC Valve”), including, without limitation, all such claims deriving from or related to implantation, use, replacement or removal prior to the execution hereof, including any alleged loss of consortium related thereto. BSCC Claims do not include any future claims for compensatory or punitive damages injury, loss or damage deriving from or related to personal injuries or death, whatever the legal theory upon which such future claim is based, caused by (a) future mechanical failure (which includes but is not limited to strut fracture, disc fracture, or other valve malfunction) of a BSCC Plaintiffs implanted BSCC Valve, or (b) future removal of a BSCC Plaintiffs implanted BSCC Valve (whether due to a previously existing defect or otherwise), other than alleged emotional distress (or claims similar thereto or arising therefrom under any legal theory) relating to fear of fracture of a working valve prior to such failure or removal. “Future” as used in this Paragraph means after the date of execution of this Confidential Master Settlement Agreement.
(App.60-61) (emphasis added). Significantly, as shown, this provision stated that the released claims did not include “any future claims for compensatory or punitive damages injury, loss or damage deriving from or related to personal injuries or death, whatever the legal theory upon which such future claim is based” caused by future mechanical failure or future explantation of the device (other than claims for alleged emotional distress prior to such failure or removal).
Very explicitly, then, the agreement contemplated that “future” claims of the types described could be later brought. Any reasonable claimant would have so understood it. Since the whole point of such a reservation was to deal later with feared problems if and when they ever arose, it would not have occurred to the reasonable reader that the contemplated “future” event and lawsuit all had to occur within a limitations period that had already started to tick— and indeed might already have expired— by the time of the settlement itself.
The most graphic illustration of this is in the case of death. “Future” claims for “death” from “future mechanical failure” were preserved. Did this mean that the victim of mechanical failure had to die within any remainder of the limitations period in order to assert a fraud lawsuit? No one would reasonably have so understood the language. Rather, all reasonable readers would have understood it to mean that if a consumer of the valve in question died as a result of a future mechanical failure, then the claim was preserved re*1156gardless of how long after the release the failure occurred.
So too with explantation, Ms. Nodine’s case. The express language allowed her to sue for “personal injuries” due to “future removal” and to do so “whatever the legal theory.” At the time of the settlement, Ms. Nodine could not have reasonably understood the words to mean that she had to undergo the explantation and to sue all before expiration of the short balance, if any, remaining on an earlier limitations period. Rather, any reasonable and objective reader would have understood it to mean that she could wait and see, monitor the valve’s performance, and with the ongoing advice of her doctor, decide whether and if so when to undergo the pain and risk of any explantation.
A sleeves-from-your-vest quality permeates the defendants’ argument. Defendants admitted at oral argument that, under their views of the law and agreement, the limitations period could well have already run by the time of the settlement itself. This is because Ms. Nodine’s fraud claim would have been based on the original misrepresentation that persuaded her to implant their product in her chest in the first place. But since the specified contingencies in the “future” had not yet occurred (and might never occur), Ms. No-dine could not have reasonably thought, when she made the release, that the time for assenting her “future” cause of action, “whatever the legal theory,” had already come and gone.
Another paragraph of the settlement agreement (App. 69 ¶ 21) provided additional protection to residents of Canada and provided that if they later experienced “a strut fracture,” they would have a standing offer from Pfizer to settle for $200,000 U.S. without prejudice to their right “to file an action on such claim in lieu of accepting the above offer.” Has this standing offer also been eclipsed by an unreferenced statute of limitations? Has the right to “file an action” also been superseded? No one would have reasonably thought so when they signed the release in question.
In light of the foregoing, I would hold that the agreement itself expressly recognized the availability of “future” specified claims and that at least as to those future claims implicitly recognized that no limitations period would begin to run until the “future mechanical failure” or “future removal.”
How many extant agreements or product claims will be eviscerated by today’s panel decision is unclear but it will be many. Victims in these cases (and other BSCC plaintiffs) had better consult with their counsel as to whether to file protective actions to toll whatever time remains, if any, on the limitations period. Future agreements, counsel will now see, will have to provide even more explicit protection from the statute of limitations in order to make the conventional settlement model viable.
I respectfully dissent.