The Culture of Fear (28 page)

The ban on implants and the scares about them may have created a greater cancer risk than the implants themselves, some doctors told Brecher, because some women who would have come forward for early diagnosis and treatment delayed doing so—because they feared, wrongly, that there would be no possibility of reconstruction. Marcia Angell goes even further: the implant scare harmed Americans seeking treatment for a variety of illnesses, she contends. Manufacturers of silicone-containing devices such as artificial joints, heart valves, and jaw implants, and companies such as Dow and DuPont that supply raw materials for such devices, scaled back production or got out of the business entirely rather than fight lawsuits.
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While some industries were cashing out of the implant business, others were cashing in—most notably, TV talk shows and law firms.

Never in the wretched history of talk TV was there a juicier story, from the ratings-ravenous perspective of producers, than that of Laura
Thorpe, the woman who took a razor and cut out her own breast implants. After an article about her appeared in a newspaper in 1992 producers of talk shows scrambled to book the unemployed woman on their programs. So eager were staffers at the “Sally Jesse Raphael” show when they discovered that Thorpe had no telephone, they rushed to the trailer park in New Mexico where she lived and flew her, her husband, and three of her five children to New York. Producers of “Maury Povich,” not to be outdone, smoked out where Thorpe was staying and convinced her to appear on their show. They whisked her away to a studio and taped a program before Sally’s people even knew she had been nabbed.

“The audience is breathless, and so am I. I mean, we just want to clutch ourselves,” Povich gushed as he introduced Thorpe, a woman he portrayed as burdened with awful ailments caused by her implants but unable to afford surgery to have the implants removed. Her extreme action seemed almost rational in light of the maladies caused by the implants, including gangrene in her fingers and autoimmune diseases. “If you’re going to die if you don’t do something, you’ve got to do something,” Thorpe exclaimed.
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Neither Thorpe nor Povich offered proof that those physical ailments actually existed, of course, or that implants had caused them. Nor did they entertain the possibility that Thorpe was suffering from a psychotic break or severe depression, as psychologists Jeanne Heaton and Nona Wilson later concluded after they researched Thorpe for their book,
Tuning in Trouble: Talk TV’s Destructive Impact on Mental Health.
It took all of Povich’s interviewing skills, Heaton and Wilson show, to keep Thorpe from sounding deranged during the broadcast. In answer to questions about the implants, she rambled on about having grown up in orphanages and foster homes, her unemployed husband, and feeling sorry for men because they have to shave. Povich managed to redirect Thorpe back to the matter of the implants before she wandered too far afield, and his producers kept the TV audience focused by flashing across the screen, “BREAST IMPLANT HORROR,” the program’s title.
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The horrors of implants became commonplace topics throughout talk television during the early and mid-1990s. Ultimately, though, it was not people with names we recognize, such as Povich and Winfrey, who most benefited from translating women’s aches and pains into implant illnesses. That distinction belongs to attorneys whose names are not household words, but who persuaded juries to award women anywhere from a couple of thousand to $25 million each for illnesses purportedly caused by their implants. The lawyers took as much as 40 percent of these awards.
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If the FDA ban on implants had been a grand victory of anecdote over science, grander still were the victories in court. In 1994 a federal court granted $4.25 billion—that’s billion with a b, the largest product liability settlement to that date—in a global settlement to compensate women nationwide for maladies allegedly resulting from leaking implants. Because the main manufacturer, Dow Corning, subsequently declared bankruptcy, the money was not paid out and legal wrangling continued. By 1998, when Dow Corning reached an agreement to pay $3.2 billion to settle claims and emerge from bankruptcy, a rigorous review of more than one hundred studies, published in the
Journal of the National Cancer Institute,
had concluded that implants do not cause breast cancer—the most serious disease the lawsuits alleged. Little or no scientific evidence existed to connect implants to any other disease either. Large studies had found no association, for instance, between implants and connective tissue diseases, and research published in the
Journal of the American Medical Association
suggested that lifestyle choices, rather than implants, might be factors in some of the women’s ailments. Comparing women with implants to other women, the scientists discovered that those with implants tended to be heavier drinkers, have more sex partners, use hair dyes, and take birth control pills.
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Marcia Angell accurately observed in a commentary in the
New England Journal of Medicine,
“Despite the lack of published epidemiologic studies, the accumulated weight of anecdotes was taken by judges and juries as tantamount to proof of causation.” But anecdotes do not accumulate on their own. Enterprising attorneys aggressively solicited
them. A television commercial urging women to call a particular law firm at a toll-free number declared, “Joint pain, fatigue and autoimmune diseases are associated with breast implants.” A headline in a newspaper ad asked, “ARE DREAM BREASTS TO DIE FOR?”
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Some firms became litigation factories. One pair of attorneys in Houston, John O‘Quinn and Rick Laminack, mass-produced suits on behalf of more than 2,500 women. Described as “the lawyers from hell” in a cover story in
Fortune
magazine, O’Quinn and Laminack grossed around $100 million in implant settlements. In addition to hordes of paralegals and file clerks who worked exclusively on implant cases, they employed a full-time nurse and set up their own courtroom where they rehearsed witnesses.
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Recognizing the need to make their carefully molded anecdotes sound to judges and juries like medical facts, lawyers worked also with highly paid physicians. Some of these docs ran what Gina Kolata and Barry Meier of the
New York Times
described in an investigative story as “assembly-line practices” for certifying plaintiffs as legitimately ill. One physician in Houston, whose income in 1994 was $2 million, told the Times he had seen 4,700 women with implants, at least 90 percent of whom came from referrals from lawyers. Law firms typically paid the lion’s share of his fee, and in turn, he authenticated 93 percent of the women as ill, thus qualifying them to collect part of the multibillion-dollar settlement or to sue on their own.
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Not all medical professionals were treated so hospitably, however, by the implant-milking attorneys. Prominent medical researchers whose findings might hamper the litigation caught hell from plaintiffs’ firms. Following publication of the Mayo Clinic study, O’Quinn and Laminack subpoenaed huge numbers of documents from Marcia Angell and the
New England Journal of Medicine,
which published the study, while another Houston law firm, representing 3,000 women in implant suits, went directly after the scientists at Mayo. Sherine Gabriel, one of those researchers, told Kolata that responding to demands for thousands of research manuscripts, data bases, and the medical records of women in their studies was exceedingly stressful and compromised her ability to do research.
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The assaults had a chilling effect. Scientists at other research centers, concerned for their careers and the costs of lawsuits, vowed not to do implant studies.

To an observer not caught up in them, the breast implant debates have a
Through the Looking Glass
air. Consider the response from a feminist media commentator at Fairness and Accuracy in Reporting (FAIR), the liberal watchdog group, to Gina Kolata’s reports. For exposing the activities of a gang of doctors and lawyers who exploit women’s suffering, Kolata and her editors at the
New York Times
might reasonably have expected praise from Laura Flanders, who covers women’s issues for FAIR. Instead Flanders accused Kolata of practicing “junk journalism” by allowing herself to be “spoon-fed ... fake facts” by implant manufacturers. The Mayo Clinic study and others might be biased, Flanders suggested, because they were published in the
New England,journal,
a publication “cram-packed with advertisements by medical suppliers including Dow Corning,” which also provided partial funding for some of the research on implants.
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I am a fan of much of Flanders’s work—earlier I cited her perceptive analyses of how the media demonize impoverished mothers—but I was dumbfounded by her harangue against Kolata. Does
Flanders take prescription drugs when she’s ill?
I began to wonder as I read her critique. Presumably she does not—since drug advertisements provide much of the revenue for the medical journals that publish studies about drugs, and drug makers help pay for much of the research done on the safety and effectiveness of medications.
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Personally, these facts don’t particularly trouble me, for the same reason they fail to disturb most doctors and medical researchers. We know that the results of corporate-supported medical research can generally be trusted, particularly when it is conducted at academic research centers and published in eminent scientific journals. The scientific method itself, as well as the peer review process at the journals, have many safeguards built in. Besides, were biased or fraudulent studies
to find their way into print, subsequent studies would likely refute them.
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To be sure, corporate sponsors sometimes try to deter scientific research that might hurt their profits. But do they succeed in preventing truth from getting out? In one celebrated recent case a pharmaceutical company blocked publication for seven years of a study it paid for that found its brand-name thyroid drug no better than cheaper, generic versions. Yet the study ultimately did come out in the prestigious
Journal of the American Medical Association,
accompanied by an apology from the president of the drug company.
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Or consider an episode that anti-implant advocates have publicized to great advantage. While serving as a $300-an-hour consultant to lawyers defending Dow Corning, Peter Schur of Harvard served as an editor of the journal
Arthritis and Rheumatism.
In his role as gatekeeper he rejected several papers that implicate implants in autoimmune diseases such as rheumatoid arthritis, yet published a paper he himself co-authored that denies any connection between implants and the diseases.

Lawyers for implanted women painted Schur’s actions as a clear instance of the partisan suppression of research findings. When a panel of medical experts subsequently reviewed the rejected papers, however, they ruled that Schur’s decisions had been scientifically sound. Moreover, in light of the controversy, Schur resigned from another Harvard study of breast implants to protect the research from accusations of bias.
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By comparison, advocates for metaphoric illnesses seldom apologize or back off, and they are proven effective at something more menacing than trying to suppress scientific results. Through intimidation they
prevent
research. Implant researchers are not the only scientists who have been hassled into submission. Just ask physicians Gregory Simon and Edward Wagner of the University of Washington, whose research showed that blood tests used to support liability and disability claims for people with multiple chemical sensitivities might be meaningless. Following publication of Simon’s and Wagner’s study an advocacy group for MCS patients tried to get the doctors’ medical licenses revoked
and filed complaints about them with the university and medical groups where they worked, as well as with a federal agency. All of the complaints were eventually dismissed, but only after much time, embarrassment, and stress on the part of Simon and Wagner, who swore never to study MCS again.
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In the breast implant melee, lawyers, by frightening off respected researchers, most likely did more to forestall the truth about implants than chemical companies did by placing advertisements in medical journals or helping to pay for studies. How, then, to explain why Flanders and others on the political left chose to side with a bunch of rapacious good-old-boys from Texas, over and against accomplished women journalists and scientists?
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At least part of the explanation lies in the age-old adage,
thy enemy’s enemy is thyfriend.
Those old boys from Texas functioned as mercenaries in a war that liberals and progressives were waging with conservatives over a separate but related issue called tort reform. In the mid-1990s a Republican Congress set out to enact legislation that would place caps on the damages plaintiffs can receive in product liability cases and medical malpractice lawsuits. To seduce public support they supplied the media with horror stories of what presidential candidate Bob Dole dubbed “lawsuit abuse.” Reporters and commentators took the bait and told again and again anecdotes about a woman who spilled McDonald’s coffee in her lap and got $3 million, and a tricycle manufacturer ordered to pay $7.5 million in a suit over the color of its bikes, which the plaintiffs said concealed a dangerous flaw in a wire handbasket on the handlebars.
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News organizations that bothered to check out the McDonald’s case discovered that a judge reduced the $3 million coffee award to $480,000, not an ungodly amount considering that the elderly woman had endured two hospitalizations and painful skin grafts, and McDonald’s had kept its coffee at a blistering 180°F to 190°F. And those that looked into the tricycle tale learned that color was a peripheral issue in a case brought by the family of a child who suffered permanent brain damage from riding a bike with numerous design flaws, only one of which had to do with the paint job. The family actually ended up receiving only a fraction of what the jury had initially recommended.
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