Commentary

Clinton’s Attempt to Implant Justice

Only in early May did Americans stop working for the government, but Washington is not satisfied. It is now attempting to use the discredited silicone breast implant litigation to impose taxes by other means.

The 1990s was the decade of the lawyer. Liability lawsuits and damage awards exploded. Attorneys targeted deep-pocket defendants, and sympathetic juries responded with judgments irrespective of proof of fault.

Mass torts created a legal tidal wave: Bendectin, electromagnetic fields, multiple chemical sensitivity and silicone breast implants. In those cases, junk science was used to justify class-action l awsuits against entire industries.

Indeed, the implant litigation became a symbol of how not to operate a legal system. Lawyers used the media to fan the fears of women who had received silicone breast implants. The politically ambitious FDA administrator, David Kessler, pulled implants from the market even though he acknowledged there was no evidence they caused harm.

Thousands of lawsuits flooded the courts, forcing Dow Corning to file for bankruptcy protection in 1995. In desperation, implant makers eventually agreed to a $3.2 billion mass settlement.

Yet the more cases filed, the less evidence there was to back them. Peer-reviewed studies from a pack of independent institutions — Harvard University, Johns Hopkins University, the Mayo Clinic and the University of Michigan, for instance — found no or only a negligible link between implants and various diseases.

Professional review panels consistently reached the same conclusion. In mid-1998, the European Committee on Quality Assurance and Medical Devices in Plastic Surgery declared the evidence was “conclusive” that implants did not cause autoimmune or connective tissue diseases. About the same time, Britain’s Independent Review Group offered a similar finding.

Later that year an expert panel appointed by U.S. District Court Judge Samuel Pointer, who was coordinating numerous implant suits, found “no association between breast implants and any of the individual connective tissue diseases, all definite connective diseases combined or the other autoimmune/rheumatic conditions.” In mid-1999, the Institute of Medicine released a comprehensive report that concluded, “There is no evidence that silicone implants are responsible for any major diseases of the whole body.” Today no one not in the employ of trial lawyers believes implants cause disease. That doesn’t mean some plaintiffs aren’t hurting, but, as the Institute of Medicine explained, there is “no evidence that these women are sick because of their implants.”

But the lack of proof does not bother the Justice Department. The Clinton administration has sued the settlement fund and six implant producers for damages incurred in funding medical care (principally through Medicaid and Medicare) for women with implants. The department expressed its hope of collecting “millions” of dollars.

The initial implant litigation was bad. The federal suit is outrageous. Uncle Sam has been part of the implant litigation since 1994, doing nothing in six years. It did nothing to assert its “rights,” discover which women had received federally subsidized medical care or determine how much money it was “owed.” Now the government wants to hand plaintiffs and defendants a potentially unlimited bill.

Although $3.2 billion seems like a lot of money, the payments, as little as $3,000 to many women, are actually quite modest. Yet from these supposed victims Uncle Sam wants a cut — indeed, the government would withhold compensation to all women until it has identified the beneficiaries of federal assistance.

The federal claim is even more unfair to the companies. They have paid the plaintiffs; if anyone should reimburse the government, it is the plaintiffs. Uncle Sam is attempting to make the defendants pay twice, when they shouldn’t be paying even once. The federal government is engaging in legal extortion even though it helped spark the initial crisis by irresponsibly pulling implants off the market. Even though the industry goose has already been plucked clean. Even though there is no evidence that the industry is responsible for the alleged damages.

The trial bar has long had an incentive to file baseless liability lawsuits. That will change only if government rewrites negligence law, restricting the use of junk science, forcing losing litigants to pay winners’ attorney fees and enacting other reforms.

Uncle Sam’s willingness to file baseless liability lawsuits — an attempt to levy taxes without legislative or popular consent — is something new. The rule of law will mean nothing if the government is able to profit from claims it knows to be a lie.

Doug Bandow is a senior fellow at the Cato Institute. He is a graduate of Stanford Law School and is a member of the California and Washington, D.C., bars.