The day doesn't pass that some representative of the United States isn't lecturing a foreign official somewhere--Russia, China, Serbia--that to join the civilized world they must establish a "rule of law." It's a wonder the rest of the world doesn't laugh in the American's face. Any nation whose political, legal and media establishment could allow something like the breast-implant litigation fraud to run for more than 10 years, with similar legal travesties following the same path, has just about forfeited its right to lecture anyone about the law's majesty.
This week the National Academy of Science's Institute of Medicine, at the behest of Congress, issued its two-year investigation into the possible link between silicone-gel breast implants and various systemic or connective-tissue diseases, such as lupus, cancer and scleroderma. They found none.
This finding of no systemic risk from silicone breast implants repeats the results of similar investigations performed or published the past decade by the following institutions: the Mayo Clinic, the American Medical Association, the New England Journal of Medicine, the United Kingdom's Health Special Advisory Group, FDA advisory panels, Harvard, Johns Hopkins, the University of Michigan, the Karolinska Institute, the Danish Cancer Society, the UK again in 1998, the European Committee on Medical Devices in Plastic Surgery and on and on. This week's findings were based on a review of 2,264 peer-reviewed studies.
The Institute of Medicine concluded that the real problems associated with implants are localized, such as tissue contraction, infections or implant rupture. Those can be painful problems, but won't fly as million-dollar torts. Yet under the American system of politics, law and media, none of this mattered.
Beginning early in the 1990s, thousands of plaintiffs claiming disease from implants were swept into the U.S. legal system, recruited by the real beneficiaries of the actions, tort lawyers and their allies. The manufacturers of silicone-gel implants ultimately proposed to pay lawyers and litigants some $7 billion to settle claims whose scientific basis is zero. The primary manufacturer, Dow Corning, declared bankruptcy.
Along the way these false claims--more appropriate to medieval superstition than an advanced society--were abetted by the Commissioner of the Food and Drug Administration, the House of Representatives, such prominent media organizations as NBC News, Ralph Nader's litigation factory and state and federal judges.
Until 1988 there'd been sporadic breast-implant litigation. Then, in November of that year, Sidney Wolfe of the Naderite Center for Science in the Public Interest demanded that the FDA ban the implants. He waved some Dow Corning documents showing that its scientists had raised carcinomas in rats with gel injections, a result known to be irrelevant to humans.
No matter. The breast-implant horror show was underway.
In December 1990, NBC's Connie Chung put on a famous segment featuring the disfigured chest of a woman who'd had her implants surgically removed and the testimony of two doctors, whose employment by plaintiffs attorneys was not conveyed to predictably aghast viewers. A week later Rep. Ted Weiss, an impresario of hyperbolic congressional hearings, put his committee's imprimatur on the tort lawyers' strategy. Given the reality of no scientific basis for all this grandstanding, none of this might have mattered save for the contribution of one person--David Kessler, the lawyer-doctor who was Senator Orrin Hatch's gift to the Clinton administration as head of the FDA.
In January 1992, Dr. Kessler, who made a name for himself seizing orange juice, grandiosely banned the sale of silicone-gel implants.
Three months later, studies finding no disease link were released by the UK advisory group, the New England Journal of Medicine and the Journal of Plastic and Reconstructive Surgery.
Two months later still, a federal judicial panel certified a class action against the major implant makers. Sidney Wolfe's outfit was selling how-to-sue kits for $750. By the end of the year, Dow Corning was the subject of more than 3,500 lawsuits. In September 1993, Dow and several other manufacturers proposed settling for $4.75 billion.
It wasn't enough. As plaintiffs lawyers such as John O'Quinn enlisted ever-greater numbers of women to chase down the corporate stagecoach, the settlement collapsed. By December there were more than 12,000 lawsuits filed against Dow Corning. The company declared bankruptcy.
Throughout this period, study after study--many of them good-faith efforts to discover if women indeed were being damaged--found no causation. But because U.S. courts won't restrain the plaintiff gangs, they were able to pistol-whip scientists who got in their way--filing massive document-search demands and subpoenas against a Mayo Clinic researcher and Dr. Marcia Angell of the New England Journal of Medicine (Dr. Angell reviewed the implant litigation's entire shameful history in her 1996 book, "Science on Trial").
An amusing footnote: Faced with overwhelming rebuke from the scientific establishment all over the world, the tort lawyers came up with a ploy good enough to keep them afloat in American courtrooms. They now called the women's problems "atypical disease."
Once liability class-actions reach the scale of the breast-implant litigation, it seems nothing can kill them. Just yesterday, for instance, the Supreme Court itself disallowed a $1.5 billion asbestos settlement on the grounds that it excludes "myriad claimants with causes of action, or foreseeable causes of action."
So-called "toxic-tort" cases, however, do face a higher hurdle today. In 1993 the Supreme Court's Daubert decision said federal judges couldn't act like potted plants in science-based disputes. And indeed last December a neutral panel of scientists appointed by federal implant-judge Sam Pointer came to essentially the same conclusions as the medical institute did this week. But state judges, many receiving trial-lawyers campaign funds, are still free to let the kangaroos set evidentiary standards in their courts.
A few years ago when the O.J. Simpson acquittal came in, we wrote that all the people outraged at the jury's act of nullification might think about their own cynical opinions of the U.S. legal system. At all levels of American society, especially business, the idea that American courtrooms strive toward justice is no longer taken seriously. The courts are greatly feared for their ability to ruin, but they aren't much respected anymore by the American people.
We know individuals who have sold their business in exhaustion from trying to keep themselves out of this maw. Once inside, unless they've got Microsoft-depth pockets, they think they're dead. The breast-implant history proves they're right.
Now we have the recent spectacle of state attorneys general pigging out on the tobacco industry (allegedly responsible for rising health-care expenditures) and now the gun-manufacturers (allegedly responsible for the costs of urban crime). Even our highest public officials, it seems, regard the courts as mainly a slot machine where the right luck can hit a revenue jackpot. We'd think this would bother judges, lawyers, legislators and maybe even the press. But media crusaders and the like probably regard such outcomes as a form of rough justice--like what's going on in Kosovo right now.
The nonsense could be cured by eliminating the 40% contingency-fee perversion and adopting a loser-pays rule, as prevails in other jurisdictions around the world that can lay claim to a rule of law. But that requires legislation. Legislative relief seems unlikely, insofar as the trial-lawyers' campaign contributions, such as received by the President himself, are now a foundation of the Democratic party.
For now, this means the burden of respect lies with the judges.
We now know, because we were informed repeatedly by science the past eight years, that the plaintiff lawyers' breast-implant injury claims were based on nothing. If the American judiciary continues to allow these charlatans to perform in their courts, the day may soon arrive when foreign officials visit to instruct the U.S. on the need to join the civilized world by creating a rule of law.
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