Lawsuit Reform: Justice Delayed : Litigation on breast implants shows simplistic fixes in the civil system won’t work
For all the talk of major reforms of the legal system, little that has been proposed in Washington or Sacramento would help alleviate the problems inherent in complicated massive lawsuits like the ones involving breast implants.
A partial settlement of tens of thousands of pending breast implant claims, stalled for months following the bankruptcy of Dow Corning Inc., the leading implant maker, may now be possible. But these mass-injury cases still raise vexing problems for the civil justice system, injured parties and corporations.
There have been mounting complaints in recent years from women with silicone breast implants that leakage or rupture of the devices caused a range of injuries including lupus and arthritis. The scientific link between these injuries and implants is inconclusive; so too is evidence that Dow Corning knew of the leakage problem before widespread sale of its implants.
Several large verdicts in favor of plaintiffs in trial courts and a temporary moratorium on the sale of implants imposed in 1992 by the U.S. Food and Drug Administration prompted Dow Corning and the other major implant makers to negotiate a legal settlement. But as 440,000 women--more than expected--registered claims for part of this proposed class-action settlement, the $4.25-billion fund became inadequate. Last May, the company filed for bankruptcy protection, and the settlement unraveled.
The new settlement agreement, announced late last month, involves Bristol-Myers Squibb Co., 3M and Baxter International Inc. The deal, which must still be ratified by the directors of the companies involved, may be the most the parties could reasonably expect given that all legal claims against Dow Corning are now stalled until it emerges from bankruptcy protection. But it’s still an unsatisfactory outcome for the parties involved.
Similarly unsatisfactory are the bills pending in Congress and the California Legislature to restrict the ability of individuals to bring suit, limit liability and arbitrarily cap economic recovery and punitive damages. These so-called reform bills originated amid fevered declarations of a “litigation explosion.” They offer simplistic, one-size-fits-all solutions to complex and individualistic legal problems.
Some changes under discussion do make sense, such as precluding injury claims by fleeing felons, those who have intentionally misused equipment or used it under the influence of alcohol. But the major proposed reforms would penalize individuals and do little to resolve legitimate questions of medical causation or corporate misconduct or to salve the very real injuries many plaintiffs suffer.
