Implants on the Auction Block

Copyright 1998 The Washington Post Company
March 21, 1998

LEAVING BEHIND the stripped fields of science, medicine and liability law, the principal players in the breast implant controversy have now settled down to bargaining. In February Dow Corning Inc. offered to add $640 million to its previous settlement offer in Michigan bankruptcy court, bringing to around $3 billion the amount the onetime implant manufacturer would pay some 177,000 claimants over 16 years. Lawyers for a network of plaintiffs said the offer wasn't enough and would be paid out too slowly; they asked for an extra $800 million.

Why does Dow Corning have to satisfy any claimants at all, given continued absence of evidence that the implants caused the diseases originally alleged? A clue comes from the degree to which both offer and counteroffer have moved off the autoimmune disease claims that have proved so hazy. Women who can prove they have Dow Corning implants could, under the company's proposal, opt to accept a one-time payment of $1,000 without further proof of any ailment. Or they could submit evidence of a variety of implant-related maladies whose existence no one disputes, only their frequency -- such as leakage, rupture, numbness and disfigurement. Or they can put in for further medical claims up to 20 years later if they develop new symptoms. The company says it is "fully committed to satisfying the claims of all women with our implants who are ready to resolve their claims and move on."

Does this mean the plaintiffs have won, lock, stock and junk science? Actually, not quite. When the Supreme Court in July declined to overturn a lower court's move to consolidate all the claims against parent Dow Chemical into a single Michigan bankruptcy proceeding, it halted the wild proliferation of claims from deep pocket to deep pocket. The studies finally completed under government prodding have tended to suggest autoimmune disease was probably a gigantic red herring diverting attention from the more limited but still real physical damage some implants have caused. A settlement that puts the more far-fetched claims to rest will come closer to reflecting the actual misfortunes of some women and the carelessness of some companies.

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