Science Nudges Law
This is certainly not what plaintiffs in the huge lawsuits against breast implant makers expected when they asked for an independent review of the medical evidence linking silicone gel implants to disease. Surely they sought confirmation of ties to arthritis, lupus and other disorders. They got exactly the reverse.
A panel of respected and neutral scientists has concluded there is no credible evidence that silicone gel breast implants cause disease. The study, released Tuesday, was began two years ago at the request of the federal judge handling consolidated implant lawsuits. It is the most definitive analysis yet of the link, or more precisely lack of one, between implants and illness.
More than a million women have received silicone implants since the 1960s. Hundreds of thousands of them joined in class action suits against the manufacturers, alleging implants had made them sick.Yet the study panel, which reviewed hundreds of published studies, could find no causative link between intact implants and disease. The panel did not address the consequences of gel implants that ruptured.
So, after years of costly litigation brought by women claiming that their very real illnesses were linked to their implants, after agreement on mega-dollar settlements with some implant makers and after the bankruptcy of the biggest manufacturer, what happens now? It’s unlikely that the study will simply dispose of the issue, as the manufacturers surely hope. But these findings will undoubtedly alter the course of the continuing litigation. The new findings should make it easier for defendants to get pending cases dismissed, prompt judges to throw out evidence of a link between implants and disease, and greatly reduce the odds that women who pursue their claims separately will prevail.
Just last month, Dow Corning Co. agreed to pay $3.2 billion to settle claims from more than 170,000 women. That deal, which will go forward despite the study results, will permit Dow Corning to emerge from the bankruptcy protection it sought in 1995. Two smaller implant makers agreed to similar settlements. Ironically, then, women who accepted these deals will get paid while other women, claiming the same illnesses, might not.
These disparities are an inevitable part of the legal system. Auto accident victims with similar injuries often get compensated quite differently, depending on the juries that decide their cases, the skill of their lawyers and other factors. Asbestos workers with the same exposure and the same disease have historically recovered vastly different sums.
The judge who convened this study wanted a credible, scientific benchmark for use in a trial, something sorely lacking in other similar mass liability cases. His goal is laudable, and other judges undoubtedly will follow suit in difficult cases. Still, such studies are no magic solution that will assure either speed of resolution or equity in claims of this sort. The process for resolving them is cumbersome and imprecise, but no better option has been put forward.
