Court orders search for neutral experts in breast implant litigation.

A court-appointed panel of scholars and physicians has begun its search for neutral scientific experts to evaluate whether there is significant medical evidence of a link between silicone gel breast implants and disease.

U.S. District Judge Sam Pointer Jr. of the Northern District of Alabama enlisted the search team in May, citing a need for impartial experts to guide judges and juries through the morass of medical literature on the alleged health risks of breast implants. Pointer, who is overseeing pre-trial proceedings in the federal multidistrict litigation, plans to appoint four or five experts whose videotaped testimony could be used in breast implant trials that will take place around the country. (In re Silicone Gel Breast Implant Products liability Litigation, MDL 926 (N.D. Ala. May 30,1996)

In his order, Pointer said the experts' primary function would be "to review, critique, and evaluate existing scientific literature, research, and publications," with particular attention to causation issues. The experts would not conduct their own studies or assess the validity of plaintiffs' claims.

Pointer asked for recommendations in four fields: epidemiology, immunology, rheumatology, and toxicology. According to the order, after the judge chooses the experts, videotaped depositions would be taken. The court would conduct direct examination, and lawyers for both sides would be permitted to cross-examine. The tapes could then be used, at local judges' discretion, when the cases return to their home districts for trial.

The court's action came in the wake of several studies suggesting no link between breast implants and the connective-tissue and immune-system diseases women claim are caused by the implants. Manufacturers have touted the studies as evidence that their products are safe, but lawyers representing the women contend that the studies are flawed or biased.

Plaintiffs' lawyers asked Pointer to name an expert panel after two judges in New York and one in Oregon began searching for their own experts to use in cases filed in their districts. Ralph Knowles, an Atlanta attorney and cochair of the plaintiffs' steering committee, said the plaintiffs preferred that one set of experts be used nationwide to avoid potential conflicts.

"We thought [court appointment of experts] ought to be done one time under a conservative judge, and it ought to be done right," said Knowles.

Implant manufacturers opposed the motion. Knowles said that "after the last year or so of the defendants running around to the media proclaiming that the science was on their side," their objection to the panel "shows some fear on their part" about what conclusions the experts might draw.

Mary Ouvin, a spokesperson for Minnesota Mining and Manufacturing, a major implant maker, said the company objects to some of the procedures Pointer put in place, not to the idea of a court-appointed panel. "We'd welcome an objective and impartial scientific review of the studies," she said.

Brooklyn Law School professor Margaret Berger, who was named chair of the search panel, said members have identified several candidates and begun reviewing their credentials. She said she couldn't predict when the panel would make its recommendations to the court.

Pointer ordered the search under Federal Rule of Evidence 706, which allows judges to appoint experts to testify. The rule does not bar the parties from calling their own experts as well.

In a separate development June 13, Pointer named a special master to advise the court about how to disburse legal fees to plaintiffs' attorneys. Under a revised settlement plan through which some women with implants have begun receiving initial payments, defendants are also making separate deposits into a fund to cover fees and expenses.

Pointer named Frank Andrews, a state court judge from Dallas, to the special master post. A seven-member advisory committee will assist him.