by jon l. shebel
Breast Implant Revisionists
On June 22 the
prestigious Institute of Medicine released the latest in a string of scientific studies
declaring that no evidence exists to link silicone breast implants to serious disease.
In the June 21 story scooping the
findings, New York Times writer Gina Kolata identified the most immediate impact of the
study:
"It is expected to be
influential in ... encouraging women to accept settlements from implant makers rather than
take their cases to court." Thus, the best that implant makers can hope for is to pay
lower damages for injuries they did not cause.
Supporters of personal-injury
attorneys immediately activated the campaign to rewrite the history and legacy of this
sorry jurisprudential episode. They concluded that the breast implant litigation was an
unfortunate mistake attributable to an earlier dearth of scientific data, the inability of
juries to sort out complicated scientific testimony, and a need to accommodate the demands
of justice before all the evidence was in. These rationalizations would be hard to swallow
if they were true, but true they are not.
Yes, at the time the litigation
began, there was a lack of scientific research on the effects of silicone breast implants
on the health of women. Trial lawyers first made the claim that the devices caused cancer,
then switched their accusation to connective-tissue disease when studies showed the cancer
scare to be unfounded. It was on the claim of a link between connective-tissue diseases
and the implants that they based their litigation.
The effort turned into a serious
money maker in 1992 when the personal injury lawyers convinced Food and Drug
Administration Commissioner David Kessler to ban silicone breast implants. There was
little evidence to support or refute Kessler’s decision but it had the immediate
effect of stamping an official seal of approval on the claims of the plaintiffs.
Kessler’s decision was a
regulatory breakdown attributable to bureaucratic empire-building and the desire for
ego-boosting headlines. The judicial fracture occurred in the courtroom when the
plaintiffs’ lawyers were allowed to supplant science with anecdote and speculation
repeated by oft-used and well-reimbursed plaintiffs’ consultants masquerading as
disinterested experts.
Some of the breast implant
litigants were genuinely and desperately ill (the rest merely anticipated illness). The
jurors couldn’t help but sympathize with the sick women. But the fault for the
incorrect verdicts doesn’t rest with jurors. They were manipulated by junk science
that allowed them to assuage their sympathy by forcing large corporations to shell out $7
billion in damages and settlements.
In 1996 Dr. Marcia Angell,
executive editor of the New England Journal of Medicine and a self-described liberal
feminist, published Science on Trial, a critique of the breast implant litigation. Her
conclusion? "If it were not for the nearly total lack of scientific standards in the
breast implant cases, even a badly flawed legal system could not have worked such
mischief."
But the tort system is badly
flawed. The ability to introduce shaky scientific evidence is just part of the scheme to
use civil courtrooms to transfer money from those who have it to those who want it.
Questions of fault or liability become unimportant details.
The Institute of Medicine’s
breast implant report is the latest flashlight beam directed at the cracks in that
crackpot scheme. Protecting that scheme against the growing demand for reform is what
drives the revisionists of breast implant history, not any concern for accuracy or
justice.
Jon L. Shebel is president and CEO of Associated Industries of Florida and affiliated
companies (e-mail: jshebel@aif.com).
July/August 1999 -- Florida Business Insight, PO Box 784, Tallahassee, Fla.
32302
(850)224-7173, insight@aif.com
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