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 declining health.
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.
Corporate Woes
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 financial
disputes."
A Defense Centerpiece
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 declared: "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 specifically "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 Intelligencer, 10/30/95).
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 company's behalf.
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 questionnaires 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."
Limited Research
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 wrote.
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 Harvard study funded by Dow Corning found a 45
percent to 59 percent increased risk of rheumatoid arthritis, but
the research appears to have been abandoned in the preliminary
stage and the results--marked "strictly confidential"--emerged only
in court.
P.R. Echoes
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 questionaires.)
"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," concludes Bernstein.
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.
Changed Landscape
"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 so far has appeared in print.)
Milking the Press
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. 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."
And the press is the cow.
"The press have bought hook, line and sinker the notion that
there's no evidence," said Wes Wagnon, an attorney whose been
prosecuting medical product liability cases including implants
since 1977. "In fact, every time they go into court there's plenty
of evidence."
By failing to examine the court records, and the evidence they
reveal, journalists have become captives of corporate P.R. The
accept the corporate-funded research as the only "real" science,
and adopt the implant manufacturers' preferred
framing of the story: The question for most journalists covering
the story is not whether women's health is at risk whether a
corporation is being treated unfairly. Businesses like Dow benefit
from a "presumption of innocence"; there is no media presumption
that a product ought to be proven safe before it is put into a
woman's body.
Dow Corning is not the first instance of a wealthy company that
sought refuge from litigation in bankruptcy court; the strategy
emerged in the 1980s, when Johns Manville evaded asbestos claims
and A.H. Robins escaped responsibility for damage caused by the
Dalkon Shield intrauterine device. And products like the Dalkon
Shield, the drug DES and toxic shock-inducing tampons show that
there is also a history of corporations profiting from products
that damage women. (It remains to be seen whether the silicon-based
Norplant contraceptive will join this list.)
The FDA took silicone implants off the market in 1992 because the
manufacturers could not establish that they were safe. Now
journalists, spoon-fed corporate "fake facts," have tried to
vindicate the "victim" corporations--possibly convincing millions
of women in the process that silicone implants pose no threat.
That's no "science," that's junk journalism.
FRONTLINE / WGBH Educational Foundation / www.wgbh.org
