Subject: FAIR article from Jan/Feb 1996 ~ Excellent Date: Sat, 20 Mar 1999 15:33:41 -0700
By Laura Flanders
In 1985, Charlotte Mahlum received silicone breast implants manufactured by
Dow Corning. One ruptured, leaking silicone into her breast, body and skin.
Ten years later, the 46-year-old former coffee-shop waitress wears diapers.
She has been diagnosed with incontinence, hand tremors, atrophy in one foot
and brain lesions. She can no longer work; her husband has to clean up after
her. And on October 28, eight men and women voted unanimously in a Reno
courtroom that Dow Chemical was at least partly responsible for her rapidly
For five weeks, the Nevada jurors listened to testimony showing that Dow
Corning's colleagues at Dow Chemical had hidden what they knew about the
hazards of liquid silicone. Dow Chemical didn't sell the implants, but they
controlled a subsidiary that marketed Dow Corning's worldwide. Dow Chemical
didn't test the implants, but they'd tested the fluid inside them. The
plaintiff's lawyers produced documents showing that Dow Chemical had known
since the 1950s that the silicone that makes up 85 percent of the liquid
inside Dow Corning's implants could migrate to the liver, the lung, the
brain. They knew the gel could affect the immune system and damage the
nerves--but they didn't tell.
Dow produced medical studies in its defense, but under cross-examination it
emerged that some had devastating flaws. Others had been abandoned or
destroyed. A rheumatologist who recommended "aerobic conditioning" for
Mahlum admitted receiving three-quarters of a million dollars from implant
manufacturers during two and half years. He testified as he had in five
other cases--that breast implants were not making the plaintiff sick.
The jury believed otherwise, and ordered Dow Chemical to pay out $14.2
million in punitive damages. Mahlum said she hoped her victory would "send a
message" to others about corporate responsibility. But the message that the
media sent about the trial was very different.
When women implanted with silicone began to come forward with their health
problems, manufacturers like Dow Corning faced a serious legal and financial
threat. Although media reporting stressed the corporation's "woes" over the
women's (see EXTRA!, 4-5/92), when the FDA declared a moratorium on most
implants in 1992, the word got out that powerful companies had made profits
from products that posed a risk to women's lives.
In the three years since, Dow Corning and the others pumped millions into
research and public relations--and they've turned all that around.
A massive advertising campaign and media effort promoted several myths. One
was that rising numbers of breast implant cases were evidence--not of
damaging products--but of greedy plaintiffs and their lawyers. "Implant
Lawsuits Create a Medical Rush to Cash In," headlined a New York Times story
by Gina Kolata (9/18/95). Kolata ignored the fact that, when nervous
manufacturers agreed to a global settlement with implanted women in 1994,
they set the shortest registration deadline they could get away with--hence
the "rush" of women who wanted to join.
Another notion promoted by reporters was that corporations, not women, were
in trouble. Dow Corning, the biggest corporation in the class-action
implants case, filed for bankruptcy in May 1995--and in no time at all the
manufacturers enjoyed "most favored victim" status in the press.
"A company has, I think, been driven out of business," Linda Chavez
announced somberly on CNN & Company on the day of the filing (5/15/95). "All
that's twisted about America's tort system was capsulized in a single
moment...when Michigan's hugely successful Dow Corning Corp. filed for
Chapter 11 bankruptcy protection," the Detroit News, Dow Corning's local
paper, editorialized ("The Triumph of Greed," 7/9/95).
On the verge of an effort to bust the paper's own unions, the News postured
as the friend of the working family: The editorial featured a Dow Corning
worker's son "who's taken to asking, 'Dad, are you gonna lose your job?'"
Actually, Dow Corning's profits were soaring. Shortly after the News
editorial stories appeared, the company's CEO reassured investors (Chemical
Week, 7/19/95): "Dow Corning recently completed the best quarter in the
company's history and the demand for our silicone technology remains strong
worldwide.... The Chapter 11 process is specifically designed to allow a
company to conduct its normal business operations while it resolves its
By far the biggest myth sold by the corporations to the media was the notion
that scientific studies had disproved suffering women's claims.
In May 1995, Dow Corning took out full-page ads in a dozen national papers.
Two years after discontinuing the product but just as several implant
trials--including the Mahlum trial--were due to start, Dow Corning's ad
promised: "Here's what some people don't want you to know about breast
implants." Studies at "prestigious medical institutions" like Harvard
Medical School, the Mayo Clinic, the University of Michigan and Emory
University showed "no link between breast implants and disease."
What Dow Corning failed to mention was that implant manufacturers had funded
several of the studies. In fact, Dow Corning's general counsel testified in
the company's bankruptcy case that Dow Corning bankrolled implant research
solely "to provide the epidemiological data necessary to defend against
allegations of breast implant plaintiffs." As the counsel put it, "These
studies were intended to be a centerpiece of Dow Corning's generic defense."
Some studies, like the ones at Emory University and at Michigan, were
directly funded by Dow Corning. Others, like the Mayo Clinic study, were
made possible by grants from a foundation whose chair has admitted that it
acted as a "facilitator" delivering the manufacturers' funds (Legal
As of 1995, Dow Corning had donated $5 million to $7 million to Brigham and
Women's Hospital (Harvard's partner in its research), and three of the
Harvard study's six authors were either paid by implant manufacturers for
other research or had agreed to act as experts in litigation on the
The manufacturers' influence over the research was not so subtle--Dow
Corning was given a chance to "review" at least some of Harvard's study
questionaires before they were mailed to participants. And according to Dow
Corning's General Counsel, "Each external scientific study that Dow Corning
funded was only after consulting with legal counsel to determine its impact
on the breast implant litigation."
The Harvard and Mayo studies didn't assess whether women with silicone
implants were healthy. Instead, they looked at groups of women with and
without implants, and compared the incidence of certain connective tissue
diseases, like rheumatoid arthritis and lupus, because connective
tissue-type symptoms kept cropping up in court.
In her story (6/13/95), Gina Kolata quoted a consumer advocate, Dr. Sydney
Wolfe of Public Citizen's Health Action Group: "Wolfe says these studies are
tainted by the money of their corporate sponsors and are too small in scope
to be definitive." But she didn't tell her readers about the specifics of
the funding. And she didn't mention that the studies' authors themselves
shared Wolfe's concerns.
The Mayo and the Harvard study authors write clearly about the limitations
of their research. The "classic" connective tissue diseases they were
looking for usually occur in only 2 to 4 people per 100,000. Of the 87,501
registered nurses studied by Harvard, only 1 percent had silicone breast
implants. In the Mahlum trial it emerged that only 11 of those had been sent
the one set of questions that permitted them to register an array of
undiagnosed symptoms and signs.
The bally-hooed Mayo results amounted to no more than that, of 749 women
with breast implants and 1,498 without, a "specified connective tissue
disease was diagnosed" in five implanted women and ten controls--an
identical rate. During the research period, Mayo changed their
"specifications" to include an extremely rare inherited disease that had
shown up in the control group only. Without those three cases, women with
implants would have had a 43 percent higher rate of the specified diseases.
The National Institute of Health finds that it takes seven to fifteen years
or more for silicone-related diseases to show up. Since Mayo's subject
sample had implants for a mean of seven years, at least half of them were
well within this latency period. Harvard claimed, impossibly, to have
included women with 40-year-old implants (silicone implants were not
marketed before 1962) and the statistics were skewed by the inclusion of
women whose implants had been in place for as little as 30 days.
The researchers at Mayo concluded (New England Journal of Medicine,
6/16/94), "We had limited power to detect an increased risk of rare
connective tissue diseases.... Our results cannot be considered definitive
proof of the absence of an association between breast implants and
connective tissue disease."
"In all epidemiological studies of rheumatic diseases, diagnosis is a major
problem," the Harvard team pointed out (New England Journal of Medicine,
6/22/95). "Our study cannot be considered definitively negative," they
But just as the research had been designed to boost the manufacturers' case,
only the results that served their agenda were promoted to the press.
A second, larger study funded by Dow Corning found a 45 percent to 59
percent increased risk of rheumatoid arthritis, but the research apppears to
have been abandoned in the preliminary stage and the results--marked
"strictly confidential"--emerged only in court.
The science notwithstanding, in the wake of their ad and outreach campaign,
a slew of stories echoed Dow Corning's claims. Alongside their "no link"
claims about the studies, Dow Corning's advertisements said that "plaintiffs
attorneys have spawned a whole new industry from suing implant
manufacturers," and the development of "lifesaving devices" like "heart
pacemakers...and hydrocephalus shunts" was being "slowed down" by lawsuits.
The corporations also charged that "plaintiffs' attorneys" were funding
"state and local candidates, including judges." The ads announced a
toll-free number for readers to call for corroborating material. Sure
enough, within weeks, their claims were being reprinted--for free this
time--by a willing press.
The New York Times' Gina Kolata (6/13/95) penned "A Case Of Justice Or a
Total Travesty? Researchers Say Bad Science Won the Day in Breast Implant
Battle," in which she gave pride of place to sources who charged that "a
legal juggernaut can take on a life of its own, independent of hard evidence
and bring a large and thriving company to its knees."
Two weeks later, the L.A. Times editorialized (6/28/95): "Tort lawyers have
managed to use anecdotal evidence...to persuade juries that there is a
causative link." The Times claimed (wrongly) that the Harvard and Brigham
and Women's Hospital study "monitored" 87,501 nurses. (Neither Harvard's nor
Mayo's researchers examined anyone. The research was retrospective, based on
"Judges and juries have often overlooked rational evidence," claimed the
L.A. Times editors. Avaricious lawyers, like bees swarming over a honey
pot," were threatening to destroy the women's chances for compensation from
the manufacturers global fund. The price of "crucial medical devices" was
being inflated by the lawsuits.
"Lawsuits Feed Implant Hysteria," headlined the Detroit News over a
Kolata-citing op-ed by Cathy Young (6/27/95): "Every week it seems there's
more news about studies that find no link between the breast implants and
any of the ailments." Young wrote that Harvard "did not get one penny from
implant manufacturers"--not mentioning the millions that went to Harvard's
co-sponsoring institution, or the money paid to individual researchers.
Two Texas judges called mistrials in pending implant cases when the ads
appeared, because they were concerned that Dow Corning's accusations had
unfairly prejudiced their juries. Some reporters appeared not only to be
prejudiced by the ads and the materials that accompanied them--but willing
to quote almost directly from the text.
Dow Corning's package of corroborating documents includes a Manhattan
Institute "Research Memorandum" in which writer David E. Bernstein cites a
Supreme Court ruling calling on judges to serve as "gatekeepers" forbidding
plaintiffs from presenting certain scientific evidence. In breast implant
cases, "some judges have been loath to exercise their gatekeeper role,"
The phrase echoes through the pages of the press. "It is incumbent...on
judges to take a more active role as gatekeepers," editorialized the L.A.
Times (6/28/95). "The presumption of innocence simply doesn't apply to
corporate America," wrote the Detroit News (7/9/95): Jurors "tend to act on
emotion," and "many judges remain reluctant to exercise their gatekeeping
authority." (7/10/95) Writing about the Mahlum trial in November, the Wall
Street Journal editorialists concluded (11/8/95): "The judge refused to act
as a gatekeeper against pseudo-scientific testimony."
In The New Republic ("Tempest in a C-Cup: Are Breast Implants Actually OK?"
9/11/95), New England Journal of Medicine executive editor Marcia Angell
restoked fears that an embargo on silicone implants posed a "threat to all
medical devices." The Journal, which published the Harvard and Mayo studies,
is cram-packed with advertisements by medical suppliers (including Dow
Corning). The litigation surrounding implants, wrote Angell, "will probably
affect a wide variety of silicone-containing devices," such as pacemakers
and hydrocephalus shunts.
"The companies funded science to change the legal landscape," said plaintiff
attorney Geoff White. And it worked, thanks to the press. On one occasion
when it didn't, the flaks of Dow were outraged. "We are extremely
disappointed that Redbook decided against all our urging to the contrary to
run Amanda Spake's article, 'Do Breast Implants Harm Babies?'" the principal
of the manufacturer-funded Dilenschneider Group wrote, complaining that the
author had gone ahead despite receiving their materials.
"When presented with this same type of evidence and expressions of concern,
another news organization, 20/20, elected to abandon its story even though
it was well into production. You had ample time to do the same."
For the most part, reporters did prefer the corporation's hand-outs to the
reality of what was happening in courtrooms, or in the streets. When
hundreds of women who believe their silicone breast implants made them ill
gathered in Washington D.C. to call for a consumer boycott of products made
by the implant-makers, the New York Times ran a picture of one of the women
(9/19/95)--no story--and an 85-paragraph special report (9/18/95) on
fortune-hunting lawyers who've made millions of dollars egging on
not-very-sick women to bankrupt thriving companies.
And although Court TV considered Charlotte Mahlum's case in Nevada worthy of
live coverage, hardly an article appeared in the national print press until
the trial was at an end. Reporters shunned the documents dug up by Mahlum's
lawyers, and ignored the testimony that had convinced the jurors. Instead,
news wire stories focused on the money awarded and its likely impact on the
Dow Chemical and future litigation.
Soon, editorials began to condemn the jury, the plaintiff's lawyers, the
law--even the judge. Anyone but Dow.
Mahlum's lawyers "persuaded the jury to punish Dow Chemical," editorialized
the San Diego Union-Tribune (11/2/95.) The Washington Post bemoaned the
"Silicone Wars" (11/3/95): Ignoring the medical science, the Post wrote in
an editorial, the Nevada jury "is reported to have expressed distrust of
studies and to have relied more on its impressions of who was lying."
Dow's relationship to Corning was merely "that of a large stockholder,"
claimed Fortune editor Joseph Nocera in a widely distributed column ("What
Did Dow Chemical Do?" New York Times, 11/1/95). Nocera's lead was jocular:
"The first thing we do...let's kill all the plaintiff's lawyers." The breast
implant litigation, he argued, "has always been about the ability of
hundreds of plaintiffs' lawyers, acting in concert, to use the threat of
never-ending lawsuits to make the companies plead for mercy."
Nocera appeared on National Public Radio's Weekend Edition (11/4/95), where
Scott Simon suggested that Dow Corning might be suffering because of its
past "reputation." (Dow Corning is part of the conglomerate that
manufactured Napalm and Agent Orange, and spent years covering up evidence
of the latter's effects.) "That's right," agreed Nocera. "You have this
automatic assumption that's kind of cultural and it comes out of the '60s
and the anti-war movement that they do bad things."
To the editors of the Wall Street Journal (11/8/95), the fact that the jury
came to their decision after hearing weeks of evidence was irrelevant. In
"Junk Science and Judges," the Journal writers charged that trial judges
were "aiding and abetting the plaintiffs" to force companies to pay out
"billions in damages despite a mountain of evidence they didn't do anything
wrong." No Journal reporter attended the trial; Dow Chemical's attorney,
Mary Terzino, was the only individual quoted, and the plaintiff's
perspective was never mentioned in the piece.
The editorial went on to imply that plaintiffs' trial lawyers' political
contributions were keeping "plaintiff-friendly" judges in place. (Nevada's
state counsel wrote a scathing response, but no letter to the editor has so
far appeared in print.)
Instead of sparking public outrage at evidence of a 30-year corporate
coverup, media reports on Mahlum's victory used the case to fuel a political
drive for tort reform. (SIDEBAR??) Out of startling defeat, Dow Chemical was
able to snatch what could amount to an invaluable victory if liability law
is changed. As Geoffrey White, one of Mahlum's lawyers put it: "The verdict
is nothing in comparison to the positive publicity the companies are
getting. They're milking this for all it's worth."