Headquartered in Midland, Michigan, Dow Corning is owned jointly by Dow Chemical and glass manufacturer Corning. A producer of over 10, 000 silicone-based products, Dow Corning had worldwide sales of over $2.5 billion (US) in 1998 (7). The company is currently under bankruptcy protection as a result of claims levied against it by women who allege to have developed autoimmune diseases from breast implants it manufactured beginning in the 1960s.
Despite numerous successful lawsuits which have been levied against the company over the past three decades, it is difficult to conclude that Dow Corning is entirely deserving of every claim made against it. There exist studies (both independent and company-sponsored) which indicate there is no link between silicone-gel implants and the incidence of autoimmune diseases (5,11,12,13). At the same time, there is a seemingly endless flow of first-hand testimony from women which suggests otherwise. Although nothing has been proven conclusively either way, the courts have, until recently, generally ruled in favor of the plaintiffs: the breast implant recipients.
While many women doubtlessly are victims of faulty implants, there exists evidence to suggest that Dow Corning is also a victim: a victim of opportunistic lawyers. When news stories surfaced in the early 1990s suggesting a link between silicone breast implants and autoimmune disease, thousands of women became overnight victims. To lawyers, this represented a golden opportunity, because in order to win, it was not necessary to scientifically prove that Dow Corning implants caused health problems (10). This made it easy for lawyers to secure enormous settlements for their clients and themselves. For this reason lawyers had a personal financial stake in winning as many breast implant lawsuits as possible. As litigation quickly clogged America’s courts in the 1990s, it became apparent that the behavior of lawyers was almost as questionable as the safety of Dow Corning’s implants. This examination will focus on the latter however, and references to the (in)credibility of lawyers will be reserved for future analyses.
Although Dow Corning sold its first silicone-gel breast implants in the 1960s, it wasn’t until 1977 that the company faced the first of many lawsuits related to implant leakage. In this first case, a Cleveland woman claimed that her ruptured implants caused her pain and suffering; she received $170, 000 from Dow Corning in an out-of-court settlement. As noted on the PBS website, this case "receive(d) little publicity" (15). In a 1995 Fortune Magazine article, the woman’s lawyer—Richard Mithoff—reminisced about the case. "Back in 1977," he said, laughing, "we thought $170, 000 was a lot of money" (10). Despite the sizable settlement involved, this case was relatively insignificant because no specific health problems—other than pain and suffering—were proven to be linked to implant leakage. It was seven years before a case was brought forward linking leaky implants with a specific disease.
Using internal Dow Corning documents as evidence, attorney Dan Bolton was able to convince a San Francisco jury in 1984 that his client’s silicone breast implants caused her "systemic autoimmune disease" (10). After the case was tried, the documents were sealed by a court order, making it difficult for others to attack Dow again in the same way.
As Dr. Angela Powers points out in her study entitled "Newspaper Coverage of the Breast Implant Controversy," Dow Corning was long aware of the potential harm caused by silicone implants (9). A 1993 grand jury investigation into the company’s internal files revealed what had been hidden in 1984: that Dow Corning executives recognized silicone to be a strong irritant to the immune system as early as 1974 (9). This, the company was forced to acknowledge. But despite the 12, 359 lawsuits filed against it by 1993, Dow Corning maintained that there was no scientific proof to substantiate the link between silicone-gel breast implants and immune system diseases. To prove the point, the company funded a study into the matter, conducted by the Mayo Clinic in 1994. Published in The New England Journal of Medicine, the study "found no association between breast implants and the connective-tissue diseases and other disorders" (12). One year later, the Mayo Clinic’s findings were duplicated in separate studies conducted by The American College of Rheumatology (17) and Harvard University (13). Like the Mayo study, these 1995 studies were funded in part by Dow Corning. This is a detail which current Dow Chemical CEO Gary Anderson later recognized as a conflict of interest. In an article which appeared in the San Francisco Examiner (Dec. 6, 1999), Anderson said he regretted this shortcoming because "we didn’t have independent academics or government folks or medical people who could stand up and defend us" (19).
As manufacturers and legislators grappled to understand the possible physiological sideffects of breast implants in the early 1990s, the number of lawsuits against Dow Corning grew almost exponentially. In December of 1991, the company faced 137 individual lawsuits (15); within 12 months, that number jumped to 3, 558 (15). By December of 1993, that figure had more than tripled to 12, 359 (15). Breast implant litigation quickly began to clog both State and Federal courts, worrying not only Dow Corning, but lawmakers as well; with so many cases flooding the court system, it was feared that other more pressing cases would not have a fair chance at being heard. The gold rush had begun.
In some ways the crunch on courtroom space was remedied when the first class action suit against Dow Corning was filed on behalf of breast implant recipients in February 1992. While this move likely freed up some courtrooms, it likely weighed heavily in Dow Corning’s decision to file for Chapter 11 bankruptcy protection in May of 1995. At that time there were approximately 20, 000 lawsuits against the company (15); this figure include class action lawsuits, so the number of potential claimants was much higher. One such lawsuit involved 410, 000 potential claimants (15). Although Dow Corning was able to halt these cases by filing for bankruptcy protection, it had already lost a number of expensive single-claimant lawsuits in the preceding years.
To understand how the breast implant controversy ‘broke’ onto the forefront of public concern in the early nineties, one need look no further than decisions passed by the US Food and Drug Administration a few years earlier. In July 1988, the FDA categorized breast implants as Class III products; this classification required all manufacturers of breast implants to scientifically prove that their products were safe for internal use (20). This legislation legitimized the concerns of a growing number of women, bringing the issue of breast implant safety to a new level of prominence in the US.
Although Dow Corning submitted 329 studies to the FDA by November 1991 (as per the 1988 FDA ruling), the agency said that was insufficient evidence to rule for or against the safety of implants (20). By January of the following year, all American manufacturers of silicone-gel breast implants agreed to a moratorium on the sale and implantation of their products. Two months later, Dow Corning announced it would make the moratorium permanent.
As the number of lawsuits against Dow Corning began to grow in the early 1990s, the American news media began to take notice. ‘Magazine’ style television shows picked up the issue and aired exposés on the potential harm caused by breast implants. An episode of NBC’s Face to Face, which aired in December of 1990, has been accused by some conservative sources of fearmongering. Host Connie Chung, they say, made unsubstantiated and inflammatory allegations about the safety of breast implants (10,18). It is widely recognized that this particular episode was instrumental in thrusting the issue into the public spotlight (1).
In December 1992, Texas lawyer John O’Quinn successfully fought a $25 million case against implant-maker Bristol-Myers Squibb. As noted by Fortune Magazine, the remarkable thing about the case was not necessarily the enormous award, but the fact it was broadcast to the nation on Court TV (10). Tremors from this decision were felt by all American manufacturers of breast implants; thousands of claimants flocked to O’Quinn’s offices during the months to follow, hoping to achieve similar results (10). His strategy was simple: maintain a constant lineup of breast implant cases in the courts to maintain a consistent cash flow. If a case was lost, lawyers could quickly move on to the next. Those who pursued mass torts, on the other hand, had to wait years before decisions were made on their cases. If such a case were to fall through, the lawyers involved could lose years of productivity.
Public condemnation of breast implant manufacturers was not limited to America’s many television screens. In her study of media coverage of the breast implant controversy, Dr. Angela Powers notes that breast implant manufacturers were vilified by some of America’s most respected newspapers during the early 1990s (9). Powers arrived at this conclusion by analyzing coverage given to the controversy by the New York Times, the Wall Street Journal and the Chicago Tribune for the period beginning March 1994 until December 1996. Interestingly enough, she also found that the majority of stories were based almost entirely on information provided by official Dow Corning sources (9). "The implant recipients’ viewpoint," she notes, "was noticeably absent" from most newspaper coverage (9). This does not bode well for the objectivity of America’s most respected newspapers.
Almost immediately after Dow Corning filed for bankruptcy protection in 1995, lawsuits were leveled against its parent company, Dow Chemical (25). From this point onward, however, American judges seemed to have changed their attitudes toward the legitimacy of claims against the company. Helping to inspire this change were studies published by the American Academy of Neurology in 1997 (14) and 1998 (16). The studies found no evidence linking silicone-gel breast implants to the incidence of autoimmune disorders, cancer, and neurological disease. This added to the growing amount of literature supporting the cases of implant manufacturers. Also working in Dow’s favor was the fact that most plaintiffs were unable to prove that Dow Corning or its parent company knew about any ill effects of silicone-gel breast implants (2). Obviously the plaintiffs did not have the benefit of Dow Corning’s 1974 internal studies which were sealed after the Dan Bolton case in 1984.
As the tides of litigation shifted to favor Dow, hundreds of cases filed against the company in Michigan and Oregon were overturned in 1996 and 1997; judges said that anecdotal evidence provided by the plaintiffs was unscientific, and therefore impermissible in court (15). In a June 1998 ruling, the California Supreme Court threw out 1,800 cases against Dow Chemical, saying that the ill effects of Dow Corning silicone-gel breast implants were "unforeseeable" (3).
In July of 1998, Dow Corning offered a $3.2 billion settlement to resolve all litigation against it, and to allow the company to emerge from bankruptcy protection; 94% of the 112, 000 plaintiffs who voted, accepted the offer (21). Built into the settlement terms was a payment scale based on the severity of each particular claim. Between $5,000 and $200,000 was made available to all claimants, and up to $30,000 extra was allotted each claimant for the removal of ruptured implants (4, 24). In January 2000, a US bankruptcy judge ruled that plaintiffs who voted against the settlement plan in 1998 may still be able to sue parent companies Dow Chemical and Corning Inc. (21). It remains to be seen whether or not such lawsuits will be successful.
At present, Dow Corning remains under bankruptcy protection and will continue to pay out money—as per its 1998 settlement—until 2014. Under CEO Gary Anderson, the company employs just over 9,000 with 14 operations across the United States (7,8). Despite ongoing litigation and settlement payments, Dow Corning reported a net income of $206.7 million for the fiscal year ending December, 1998 (7).
Dow Corning owes its continued existence mainly to the dozens of medical studies which found no evidence linking its implants with the incidence of autoimmune disease, neurological disorders or cancer. The validity of those studies, however, must be carefully considered because many of them were funded in part by Dow Corning. In fact, the validity of many aspects of the Dow Corning breast implant controversy should be taken with a healthy grain of salt. Along with the company itself, the lawyers and media organizations involved also had underlying agendas to fill. It is quite likely that at least some representatives of the latter two groups had less than noble intentions in the parts they played; after all, court victories and high ratings usually translate into higher earnings. Lost somewhere in the controversy are the women whose pain and suffering is supposed to have been the focus of attention. They shall be the true losers in the end; unlike Dow Corning which filed for bankruptcy protection, women cannot obtain instant protection from their ruptured implants.
Regular Access Sites
1. 21stC-Columbia
University Research Magazine issue 1.4
http://www.columbia.edu/cu/21stC/issue-1.4/metabreast.html
2. CNN-New Orleans Class Action.
http://www.cnn.com/US/9708/20/breast.implants/
3.* DOW Chemical-Corporate News Release
(California dismissal)-July 9, 1998.
wysiwyg://55/http://www.dow.com/dow_news/corporate/co8_7_9.html
Dow-Corning Chapter 11 Bankruptcy Page
4. February 17, 1998: Dow Corning Announces New $4.4 Billion Plan.
http://www.implantclaims.com/pr-newplan.html
5. February 17, 1998: Three New Studies.
http://www.implantclaims.com/pr-threestudies.html
6. April 2, 1998: Canadian Settlements.
http://www.implantclaims.com/pr-canada.html
Hoover's Online
7.* wysiwyg://11/http://www.hoovers.com/co/capsule/2/0,2163,40132,00.html
8. http://www.hoovers.com/cgi-bin/adoffsite?url=http://hoovers.infousa.com/cgi-
bin/abicgi/abicgi.pl^bas_type=hoovers,,bas_vendor=098,,bas_session={bas_session}
,,bas_page=1,,bas_action=Subsidiaries,,sch_abinumber=4587424
9. Dr. Angela Powers-Newspaper Coverage
of Breast Implant Controversy.
http://www.niu.edu/acad/powers/breast.html
10. Fortune Magazine-October 16, 1995.
http://www.fortune.com/fortune/magazine/1995/951016/cover.html
11. The Manhattan Institute-article by
Dr. Marcia Angell, executive editor of the New England Journal of Medicine
(1996)
http://www.manhattan-institute.org/html/cjm_28.htm
The New England Journal of Medicine
12. June 16, 1994 -- Vol. 330, No. 24.
http://www.nejm.org/content/1994/0330/0024/1697.asp
13. June 22, 1995 -- Vol. 332, No. 25.
http://www.nejm.org/content/1995/0332/0025/1666.asp
14. Neurology-(Search Keywords in Title:
The neuromythology of silicone breast implants)
http://www.neurology.org/
PBS.org
15. Chronology of Breast Implants on Trial.
wysiwyg://78/http://www.pbs.org/wgbh/pages/frontline/implants/cron.html
16. Scandinavian Study
http://www.pbs.org/wgbh/pages/frontline/implants/medical/cohort.html
17. Statement on Breast Implants, American
College of Rheumatology
http://www.pbs.org/wgbh/pages/frontline/implants/medical/positionstate.html
18. PR Central-Anatomy of a Crisis: The Breast Implant Imbroglio.
http://www.prcentral.com/repman96/rmmj96breast.htm
19. The San Francisco Examiner-Dow Corning
Still Reeling from Silicone Scare.
http://www.examiner.com/991206/1206silicone.html
* Please note, this server was down at time of printing-August 6, 2000.*
20. US Food and Drug Administration-Chronology
of FDA Activities Related to Breast Implants.
www.fda.gov/cdrh/breastimplants/bichron.html
Database Gateways
INFOTRAC
http://infotrac.galegroup.com/itweb/itsbtrial
Search under Business Intl & Company Profiles.
21. Type: Ruling Opens Door for Suits Against Dow Chemical
22. Type: Dow Chemical Waylaid by Implants
23. Type: Breast implant class decertified in La.
Proquest
http://proquest.umi.com/pqdweb?RQT=407&TS=964309171
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24. Type: Dow Corning Files A $3.2 Billion Plan For Implant Claims.
25. Type: Ruling opens door for suits against Dow Chemical.