Punishing the Innocent

  A cartoon shows a buxom woman sitting in the witness box in a courtroom. The judge declares, "There's zero evidence that silicone breast implants cause disease!" Then he orders, "Give the plaintiffs three billion [dollars] anyway!" The cartoon—and the entire implant controversy— illustrates our culture's growing disregard for simple justice. A federal panel recently convened by the National Academy of Sciences concluded that there is indeed some risk associated with silicone breast implants, like infections caused by leakage. But the panel said there is no evidence to substantiate claims that implants damage the immune system or cause diseases such as cancer, lupus, or rheumatoid arthritis. The report came too late to help Dow Corning, the maker of the breast implants. In 1995, facing thousands of lawsuits over alleged injuries caused by its product, the company filed for bankruptcy protection. Last year, the firm reached a $3.2 billion settlement with attorneys representing 176,000 women who claim they were injured by the implants. The National Academy of Sciences panel was only the latest in a series of panels all concluding that no link exists between silicone breast implants and serious illness. But if the implants are not causing disease, then why did Dow Corning have to pay billions to settle the case against them? It's because contemporary American law has, in some serious respects, lost sight of the classic meaning of justice. Not that long ago, the goal of tort law was to uphold justice by properly assigning blame for an alleged injury. The plaintiff was required to present evidence that clearly linked the alleged injury to the activities of the defendant. Expert opinion had to be consistent with scientific consensus on the issue. What's more, if victims somehow contributed to their plight, they were either barred from collecting damages or saw those damages reduced. Finally, the doctrine of informed consent meant that if, after being thoroughly informed of the possible risks associated with the procedure, patients went ahead with it anyway, they could not turn around then and collect damages. None of this happened in the Dow Corning case. Despite the lack of solid evidence that Dow Corning's product was at fault, the case was allowed to proceed. In the end, Dow Corning chose to settle rather than fight. The company knew that in today's cultural climate, it didn't stand a chance. No doubt Dow-Corning imagined the public relations nightmare if the media were to show a courtroom full of suffering women up against a multi-billion-dollar company. Emotionalism and the manipulative power of trial lawyers has redefined justice. And yet the entire episode ought to cause grave concern to all of us. If our legal system persists in punishing people despite the evidence, then why should we trust the courts? What good is the rule of law if the law itself is arbitrary and capricious? We need to help our neighbors understand the real issues involved in cases like these. The idea that judges can declare a company innocent and then punish it anyway ought not to happen in real-life courtrooms. Law and impartial justice MUST go hand in hand if citizens are to retain confidence in the rule of law.

11/4/99