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 over two and a 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 appeared, the company’s CEO reassured investors (Chemical Week, 7/19/95):
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 there of the Harvard study’s six author were either paid by implant manufacturers for other research or had agreed to act as experts in litigation on the company’s behalf.
The manufacturer’s 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.”
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 87,5401 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 ballyhooed 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 Institutes of Health finds that it takes seven to 15 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.
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 spawn ed 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 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” 85,501 nurses. (Neither Harvard’s nor Mayo’s researchers examined anyone. The research was retrospective, based on questionnaires.)
“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 cosponsoring 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.” 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 at 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 the 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 corporations’ handouts 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 or a consumer boycott of products made from the implant-makers, the New York Times (9/19/95) ran a picture of one of the women–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 Dow Chemical and future litigation.
Soon, editorials began to condemn the jury, the plaintiffs’ 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 evidence, 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 at the plaintiff’s lawyers.” The breast implant litigation, he argued, “has always been about the ability of hundreds of plaintiff’s 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 plaintiff’s trial lawyers’ political contributions were keeping “plaintiff-friendly” judges in place. (Nevada’s state counsel wrote as scathing response, but no letter to the editor has so far 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 Geoff 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 who’s 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. They 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, but 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 no the first instance of a wealthy company seeking 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 silicone-based Norplant contraceptive will join this list.)
The FDA took silicone implants off the market in 1992 because the manufacturers could not establish 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 post no threat. That’s not “science,” that’s junk journalism.