BACK IN 1994, breast implant makers and women claiming injury from the devices almost signed on to a $4.25 billion settlement--a billion more than the settlement a federal judge is set to approve this week. That earlier settlement fell apart because no one could guarantee most women would join it; at the time, with juries granting gigantic damage awards to those who said silicone implants had harmed them, it looked as if women could do better taking their chances with individual lawsuits.
But the legal and scientific landscape looks far different now. The more modest $3.2 billion settlement about to be approved by Judge Arthur Spector as part of Dow Corning Corp.'s $4.5 billion bankruptcy plan is a signal that--against all odds and most public impressions--the messy legal-medical saga of silicone breast implants has ended up providing some light as well as heat. Scientific evidence, once it finally emerged, didn't go the way of the plaintiffs' gamble. Though ample evidence had been found that breast implant makers' behavior was culpable--that companies were reckless about safety studies and failed to warn women that the implants could rupture or cause pain, numbness and disfigurement--no conclusive evidence has turned up that the implants actually cause the more dramatic chronic and systemic diseases alleged. Two dozen studies from such prestigious institutions as the Mayo Clinic failed to find clear links between implants and lupus, scleroderma or autoimmune disease, all the focus of huge damage awards in court cases.
The settlement's shape reflects this two-tiered judgment. Those with implants who join the settlement will receive payments on a sliding scale, from $30,000 for some lumping, scarring or other local damage to as much as $300,000 for certain types of immune disorders. Under the deal, women may still "opt out" and sue Dow Corning separately, but the company cannot be assessed punitive damages, and plaintiffs are barred from suing Dow Corning's richer parent company, Dow Chemical. The company can also demand a separate "scientific trial" to establish connections that till now have been asserted in court without scientific backing.
The message conveyed by this approach is a balanced one: Plaintiffs and their lawyers recklessly overshot provable science in the claims they made on autoimmune disease, but they did focus attention on implant makers' misconduct in failing to test their products adequately.