When a tropical storm devastates an island or a troubled teenager goes on a killing spree, cries go up demanding something be done to make sure it never happens again. When a deranged tort system destroys an industry--driving people out of jobs, panicking customers--and does so based on junk science admitted to the courtroom by injudicious judges-- there really is the possibility of making sure it doesn't happen again.
It would come too late to save Dow Corning, once the country's biggest maker of silicone-gel breast implants, from bankruptcy. The company filed in 1995, snowed under by thousands of lawsuits ginned up by the likes of Houston lawyer John O'Quinn in such numbers as to make a defense on the merits impractical. The long-running fiasco got up its head of steam after FDA Commissioner David Kessler grandiosely ordered the implants off the market in 1992, claiming the company hadn't proven them absolutely, positively, irrefutably safe. He has since accepted Yale's invitation to run its medical school.
Let us understand that this effort was a deliberate strategy devised by tort sharks like Mr. O'Quinn, who in theory have a duty as "officers of the court," yet strive to make it impossible for the courts to do their proper work as finders of facts and dispensers of rational justice. All along Dow Corning and other implant makers have maintained they have no liability because there is no scientific evidence to support the scattershot claims that implants cause auto-immune disease and other "systemic" ailments. Study after study has vindicated the industry's belief in its own innocence.
Last week, after spending two years and $800,000, a team of independent researchers appointed by Federal District Judge Sam Pointer Jr. of Alabama came to the same conclusion: There is "no evidence" linking implants to patterns of elevated risk of these and other diseases. The plaintiffs lawyers say they look forward to deposing the researchers--three female and one male academic specialists--and we hope Judge Pointer's court is prepared to protect them. When the New England Journal of Medicine's editor published a Mayo Clinic researcher's negative conclusions on silicone implant diseases, the lawyers bombed both women with subpoenas and sought to troll through their work files and associations. Junk lawyering is as abusive as junk science.
Some, like lawyer and advocacy group organizer Sybil Goldrich, now urge that science be ignored in favor of the stories of individual women--superstition, in other words, since causation cannot be observed in individual cases; it can be divined only from statistical patterns. Once, when a chief died and the rains didn't come, primitive man assumed a link. The achievement of the big-money trial lawyers has been to make such primitivism play in the courts. When the Dow Corning case is finally settled, legal fees could top $1 billion.
How did we get here? The failure is a failure of judges, and maybe even a wider failure of republican (small "r") responsibility. An astonishing number of Congressmen and Senators seem content to give Bill Clinton a pass on lying in the courtroom. But the polls aren't telling Congressmen not to impeach the President; the polls are telling them that voters want them to decide. They're saying, don't kick the difficult, professional judgments back to us. As we've seen in the later round of breast implant trials, when judges permit only legitimate scientific evidence to be presented as "science," jurors will do their duty, whatever sympathy they may feel for the women involved.
Reason and evidence have gradually won out, not least because judges like Mr. Pointer have used their own authority to reach beyond the theatrics of the trial lawyers and bring genuine scientific expertise to bear. But a change of incentives is also needed to stop people like Mr. O'Quinn from gaming our legal system and cowing companies into unmerited surrender.
To this end, it would not be the worst thing if the U.S. Bankruptcy Court in Michigan rejected the $4.5 billion reorganization plan filed by Dow Corning last week. Dow Corning won't be pleased, but the court's duty is to protect legitimate shareholders and creditors, and the settlement would make $10,000 to $250,000 available to anyone who claims auto-immune disease, which science has consistently failed to pin on breast implants. The company once demanded a separate trial on causation, but seeing a light at the end of the tunnel has moved to close the books by paying up.
Women are already offered $20,000 for a ruptured implant, and $5,000 for anyone who wants hers removed for any reason. These seem appropriate responses to a controversy that, for whatever reasons, has caused customers a great deal of distress. But to reward plaintiffs, and more especially their lawyers, for claims repudiated by science would send the wrong message to all the aspiring tort sharks out there. The breast implant boondoggle was a wholly man-made disaster. It needn't happen again.
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