Social justice and scientific proof

November 22, 1995|By Ann G. Sjoerdsma

NORFOLK, Va. -- Once again, the ''people's law'' and science have collided in a courtroom. Science and reason are the worse for it. Last month, a jury in Reno, Nevada, ordered Dow Chemical Co. to pay $13.9 million to a woman who claimed her chronic physical maladies -- unspecified fatigue, muscle pain, nerve disorders -- were caused by silicone-gel breast implants that had ruptured.

Current medical opinion, based in part on studies by the Mayo Clinic and the Harvard Nurses' Health Study, does not support an association between silicone implants and connective-tissue diseases (lupus, rheumatoid arthritis, scleroderma) or any of a number of other health complaints. Studies have been overwhelmingly negative: Women with silicone implants have no greater incidence of connective-tissue disease than women without them.

Medical science ignored

But the Washoe District Court jury of five men and three women cared not a whit about medical science. Instructed to disregard unsupported plaintiff's evidence suggesting that Dow Chemical had withheld information about silicone health hazards, the jury nevertheless chose to punish a big corporation with deep pockets, exacting ''social justice.''

In favoring Charlotte Mahlum, 46, who had breast implants installed in 1985 after a double mastectomy, the jury was emphatically, and emotionally, anti-science, anti-physician, anti-drug company, and, to my mind, anti-women. The verdict denies millions of women, for ''their own protection,'' a product that has not been shown to be unsafe.

It also links Dow Chemical, part-owner of now-bankrupt silicone implant manufacturer Dow Corning Corp., to health problems arising from silicone implants. The Food and Drug Administration banned these implants in 1992, except in limited cases and pending further studies.

By the time the FDA's studies are completed no sane company will be in the silicone-implant business. Such devices will go the way of contraceptive research, chilled by litigation costs.

Dow Corning and other silicone-implant manufacturers have already agreed to a $4.2 billion settlement fund. If the Nevada verdict is not set aside, Dow Chemical may follow suit, even declare bankruptcy. (Dow has appealed.)

Juries in big product-liability cases often reject medical-science (read: statistical) analyses that confuse them and respond instead to a plaintiff's plight, regardless of its cause, and as enhanced by dramatic plaintiff's lawyers.

A glut of such lawyers, representing thousands of women nationwide, now waits eagerly at Dow Chemical's opened door. I do not mean to suggest that Dow Chemical is an ethical paragon; that Dow Corning, during its 30 years of marketing implants, was conscientious in testing their safety and effects on women's long-term health; that silicone implants are without risks; or even that Ms. Mahlum's ill health was not caused by the implants.

Nor do I do advocate implants as therapy for a great many women who get them.

What I do say is that current medical knowledge does not support the Mahlum claim. Until it does, the jury's verdict is wrong.

In the 1980s, when mass personal-injury lawsuits (asbestos, Dalkon Shield) became the rage, I reported on the exorbitant and seemingly endless litigation over Bendectin, an effective morning-sickness drug that allegedly caused birth defects.

Nearly 30 epidemiological studies proved the drug's safety -- unexplained birth defects occur in 5 percent of all births -- but sympathetic juries continued to award millions to plaintiffs. The sight of physically deformed children, and the heartfelt sway of their lawyers, won them over. Repeatedly, judges overturned the verdicts.

The manufacturer eventually removed Bendectin from the market and agreed to a $120 million settlement fund. It didn't end there, though. Litigation stopped only after the U.S. Supreme Court refused to review a lower-court decision favoring the drug company.

Pregnant women, many of whom are debilitated by morning sickness, lost a safe medication.

Though breast augmentation by silicone implants is an elective cosmetic surgery, a therapeutic argument can be made for many women who seek it, especially the 21 percent who have had mastectomies. Millions of women have been happy with the results. No surgery is risk-free.

Consumers need protection, of course, but not at the expense of informed choice. Medical science deserves some respect, too. Until the data are more conclusive, the jury should remain out.

Ann G. Sjoerdsma is a lawyer and book editor of the Virginian-Pilot.

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