In American product liability cases, the law doesn't wait for fact or truth. When the blue-ribbon Institute of Medicine panel investigating breast implants had its first public meeting in July 1998, among the witnesses was a parade of "victims." They had received breast implants and were now suffering from the most heart-rending diseases ranging from debilitating arthritis to lupus.
Today, their cases remain incurable and their stories heart-rending. But it turns out that their illnesses had nothing to do with the implants. After a year and a half of study, the IOM (the medical branch of the National Academy of Sciences) concluded that while breast implants can obviously cause local problems in the breast if they rupture or leak, they do not, contrary to the claim of hundreds of women -- and their lawyers -- cause systemic illness.
The IOM conclusion is based on 3,400 scientific studies and reaffirms the findings of three other impartial panels (one from Britain and two appointed by judges in breast implant cases). And yet the story comes with one of these only-in-America twists: Despite the findings, the mountain of litigation against breast implant manufacturers persists, and with crushing effect.
Dow Corning, a Fortune 500 company driven into bankruptcy by breast implant lawsuits, will still pay $3.2 billion to settle them. Baxter International, Bristol-Myers Squibb and 3M will still fork over another $3 billion. Said law professor David Bernstein, "It would have been nice to have had this [study] seven billion dollars ago."
But in America, the law doesn't wait for fact or truth. Breast implants are the most egregious case of the triumph of bogus science, but the problem is endemic.
Former surgeon general C. Everett Koop has just chaired a commission looking into the recent scare about chemicals (known as DINP and DEHP) that soften plastic. Recent charges by activists and TV newsmagazines led manufacturers of toys made with DINP to pull their products off the shelf lest they go the way of Dow Corning. Yet Koop's commission found no health risk whatever associated with these chemicals.
But the toy issue is trivial compared with the problem of medical products using DEHP. Such extremely important and irreplaceable devices as catheters and IV bags are now under attack by activists of the exquisitely named consumer group "Health Care Without Harm." They ought to merge with the trial lawyers' association and call themselves "Life Without Harm (except for the contingency fees)."
Koop, writing in the Wall Street Journal, urges the manufacturers to hang tough. But he is worried: "Whether the medical community can withstand the same degree of attack that overwhelmed toy makers is still to be determined."
As in the notorious Alar scare, another panic that nearly wiped out many apple producers because of a chemical whose risk remains to this day unproved, manufacturers have learned their lesson. The lesson? Confess, and cave. Immediately.
Ironically, the business model for the saving cave is Tylenol. When tampered-with Tylenol capsules killed seven people in Chicago in 1982, Johnson & Johnson issued an immediate acknowledgment and warning, ordered a recall, set up a hot line and changed packaging. There was initial speculation about whether the brand name Tylenol would survive. It thrived.
The reason this model is ironic is that the Tylenol had indeed been tainted. And the product was vulnerable to taint in a way that needed to be addressed. The problem was real. With DINP and DEHP, it is not.
But unreality hardly fazes class-action litigants. Faced with massive evidence that breast implants do not cause systemic disease, Janice Ferriell, president of the National Breast Implant Task Force, counters that of course the scientists found nothing -- they were looking for known diseases, while breast implants cause a brand-new, yet unknown disease. "It's a man-made problem," she said.
This kind of medical know-nothingism, which would render any study invalid because one can always postulate a still undiscovered disease that wasn't looked for, is what helped create Gulf War syndrome. This classic "new disease" is but a political and legal entity. It has occasioned all kinds of genuflection from politicians, including expenditures amounting to millions of dollars, despite the fact that its very existence remains highly in doubt.
The only way to put a stop to this is to resist the Tylenol model if the science is bogus. Don't cave. Do as Koop is urging the manufacturers of IV bags. Stand on real science, and hope -- against hope -- that the American legal system will vindicate you. Given the state of American law, alas, it is a call for courage over prudence.