ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Tuesday, January 28, 1997 TAG: 9701280116
SECTION: EDITORIAL PAGE: A-5 EDITION: METRO
SOURCE: DAVID E. BERNSTEIN
FOR MORE than a decade, a handful of industrious trial lawyers has pocketed millions of dollars in contingency fees by persuading juries that silicone leaking from breast implants causes a wide spectrum of mysterious immune system diseases in women.
The onslaught of litigation has continued despite new studies by Harvard, Johns Hopkins, the Mayo Clinic and other prestigious institutions that show no such link.
But two weeks ago, Robert E. Jones, a federal judge in Portland, Ore, brought the realities of modern science and American jurisprudence a little closer.
Relying on the advice of four court-appointed scientific experts, Jones barred from his courtroom ``expert'' witnesses who continue to claim a link between silicone breast-implants and serious systemic diseases. He did this by boldly ruling that evidence supporting the linkage theory does not meet the threshold of scientific proof necessary to merit being presented to juries.
While the ruling affects only 70 women in Oregon, it eventually could earn the designation ``landmark'' by establishing a sound-science precedent for thousands of other cases around the country. If that happens, it could well be the beginning of the end of the breast-implant controversy's courtroom saga. And, more importantly, it could have a salutary effect on other dubious personal-injury cases well beyond the breast-implant arena.
Litigation over silicone breast-implants has dragged on for years. In the process, it has tied up courtrooms, cost defendants billions of dollars, and created shortages and high prices for companies that produce 8,000 medical devices that stave off death and make life better for millions of Americans.
Unfortunately, the claims by plaintiffs' lawyers and their ``payroll'' doctors have been classic ``junk science'' - a combination of speculation and unproved hypotheses, often topped off by a dollop of wishful thinking and fraud.
Initially, plaintiffs' attorneys focused their claims on the alleged risk of breast cancer from silicone implants. After several studies appeared refuting that risk, the lawyers shifted their focus to claims that silicone implants caused recognized immune diseases, such as lupus and scleroderma.
When scientists published a new round of studies showing that the risk of acquiring immune system disease was at worst negligible, and probably did not exist at all, the plaintiffs' bar went off on another tack - attempting to impugn the studies by questioning the motives and the integrity of nationally and internationally respected scientists and researchers.
When that argument foundered on the shoals of credibility, the plaintiffs' lawyers simply invented a new ailment, which they dubbed ``atypical connective disease.'' The beauty of a new atypical disease from the plaintiff lawyers' perspective was there was no clear definition of it beyond the fact that it occurred only in women with breast implants. Without a clear definition, of course, it is nearly impossible to prove any disease does not exist.
Throughout the breast-implant controversy, most judges have been willing to sidestep a technical legal requirement that plaintiffs actually provide scientific evidence to support their claims. Instead, judges were willing to accept the often-bizarre claims of plaintiffs' experts at face value and allow lay juries to determine whether the claims went beyond the bounds of accepted science.
The problem, of course, was that most juries were unschooled in the complexities of science and simply unable to render an informed opinion. When people with sound scientific backgrounds turned up in jury pools, they often were quickly dismissed through preemptory challenge by plaintiffs' attorneys who preferred uneducated jurors more easily swayed by emotional appeals.
Judge Jones' ruling should begin to shrink the number of huge jury awards determined solely by sympathy without regard to the merits of the case. In fact, it likely will prove to be the tip of the proverbial iceberg.
Most breast-implant cases, for instance, have now been consolidated in the Alabama court of U.S. District Judge Sam Pointer, who has appointed a panel of neutral scientific experts to weigh the scientific evidence on the plaintiffs' side. The panel is scheduled to announce its findings next year.
Given the state of the scientific evidence, most experts believe Judge Pointer then will have little choice but to disqualify the plaintiffs' experts. Similar results are expected in scores of individual cases pending in state courts nationwide, and in the Dow Corning bankruptcy litigation moving forward in a federal court in Michigan.
Judge Jones should be hailed as a hero for bringing much-needed scientific sophistication to bear on the critical issue of whether silicone implants cause debilitating immune-system disease. Other judges are sure to follow his lead, and we can expect scientific advisory panels to become increasingly common in American courtrooms.
That is good news for everyone - except the purveyors of junk science.
David E. Bernstein is professor of evidence at George Mason University's School of Law, and a consultant to the Center for Civil Justice Studies.
- Knight-Ridder/Tribune
LENGTH: Medium: 93 lines ILLUSTRATION: GRAPHIC: KEVIN KRENECK/Los Angeles Times Syndicateby CNB