Now They Tell Us

The Food and Drug Administration recently lifted its 14-year ban on the use of silicone breast implants for cosmetic purposes, saying that even though the devices are unlikely to last a lifetime — surgeons will need to warn patients of the likelihood of future surgeries — there is no scientific evidence that leaking silicone implants cause cancer or other serious illnesses. So where does Dow Corning go to get its $3.2 billion back?

That's the amount the erstwhile silicone implant manufacturer paid out from the jaws of bankruptcy court in 1998 to settle 170,000 lawsuits filed over its supposedly faulty implants. The implants were alleged to cause various cancers, not to mention rheumatoid arthritis and other autoimmune conditions. That settlement came nearly seven years after the FDA had first removed silicone implants from the market and just before a slew of independent studies, including one commissioned by a federal district court and another by the National Academy of Science's Institute of Medicine, found no evidence that the implants caused any disease.

Indeed, silicone implants join asbestos and Vioxx in the pantheon of products that have been the subject of some of the most irrational litigation in history. Women whose silicone implants had ruptured and leaked couldn't actually prove that their implants had caused the illnesses they were suffering. The majority of today's asbestos plaintiffs can't prove they're suffering any illness at all. And Vioxx's alleged victims can't point to any actual proof that the arthritis drug's cardiac risk is greater than that posed by over-the-counter painkillers. Yet overeager lawyers were happy to sue, and the courts have been only too happy to oblige. Trial lawyers are currently trying to eviscerate Merck, Vioxx's manufacturer.

Merck has elected to fight each Vioxx suit individually, and that strategy seems to be working, but it's hard to fault Dow Corning or asbestos manufacturers for settling the suits against them instead of taking them to trial. The FDA's latest announcement does, however, highlight the broader dangers of leaving the out-of-control liability system unreformed. With the benefit of hindsight it is even clearer than it was before that the only crime Dow Corning committed was selling what was then a perfectly legal product that turns out to be safe. For that transgression, the company was allowed to be eaten alive by the trial bar. Dow Corning managed to survive. Others haven't been so lucky. Congress needs to decide how many more companies will suffer Dow Corning's fate before lawmakers deliver much needed legal reforms.