Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case.

Marcia Angell W. W. Norton & Company, Inc., 500 Fifth Ave., New York, NY 10110. 256 pp., $27.50.

Reviewed by James E. Rooks Jr.

Dr. Marcia Angell, executive editor of the New England Journal of Medicine, wrote this book and two articles highly critical of the U.S. civil justice system's handling of the breast implant controversy without disclosing to her readers her affiliations as an expert defense witness for several implant manufacturers. She has also been criticized for not taking a "scientific" approach to her topic.

In her book and in two articles published this year (Evaluating the Health Risks of Breast Implants: The Interplay of Medical Science, the Law, and Public Opinion, 334 New Eng. J. Med. 1513 (1996) and What's Really Behind the Attack on Silicone Breast Implants, 73 Med. Econ. 131 (1996)), Angell essentially takes on all players in the litigation other than those held responsible by judges and jurors: implant manufacturers and plastic surgeons. Angell faults plaintiffs' lawyers for greed; physicians cooperating with the litigation for unethically subordinating professional responsibilities to business opportunities provided by the litigation; the news media for promoting sensational stories rather than encouraging public understanding of science and health issues; and the civil justice system for failing to follow scientific standards of evidence.

Science on Trial has been cited favorably in articles and editorials echoing Angell's concerns about the news media. (See, e.g., Amy E. Schwartz, Thousands of Lawsuits Later: How Scientific Evidence Got Blurred in the Breast Implant Saga, Wash. Post, July 25, 1996, at A29.)

Unlike the justice system Angell scorns, with its requirement that fact-finders consider all relevant evidence, Science on Trial is nearly totally one-sided. Many of the sources cited by Angell are from within the implant industry, and they even include an article by a Dow Corning public relations official.

The book covers the same subject matter--and essentially adopts every criticism--of the Manhattan Institute's campaigns against the civil justice system, which Angell calls "antiscientific and irrational," producing "judgments based on anecdote and speculation." Angell voices concern about a mythical "litigation explosion" and the elusive "tort tax." She derides class action suits, juries, and the contingent fee system. Her most elaborate criticism is reserved for the courts' treatment of scientific evidence and expert witnesses who testify for breast implant plaintiffs--a major topic of the Manhattan Institute's attacks.

Angell does acknowledge four well-documented problems with breast implants: contractures caused by buildup of scar tissue, gradual leakage of silicone, rupture, and difficulties with performing mammography. She concedes that silicone implants "are capable of doing a lot of local damage when they rupture or contractures form." Otherwise, the book focuses on the paucity of clinical causation evidence regarding connective tissue and other systemic diseases.

Angell is a scientifically trained editor who often voices disdain for lawyers, judges, juries, and even doctors who base conclusions on anecdotal evidence. Nevertheless, Angell, herself, employs anecdotes liberally. She claims, for example, that the first recipient of modern breast implants is now a 63-year-old grandmother who "professes to be content with them." Elsewhere she refers to a 1990 survey commissioned by the American Association of Plastic and Reconstructive Surgeons (whose members have implanted the devices into 1 million to 2 million U.S. women) that "found that over 90 percent of women with breast implants were well pleased with the results."

It a million women have them, she explains, the survey means that "less than 100,000 are displeased." If 2 million, then "less than 200,000 are displeased." In contrast, she dismisses a 1991 survey finding 60 percent of implant patients satisfied and 40 percent with complications as a "very small" survey.

In engaging in this polemic, Angell has studiously ignored much of the evidence, basing many observations on "tort reform" jeremiads and media reports--a point picked up even by civil justice critic Max Boot. He observed that Angell "often relies on press accounts to describe developments." ( The Tort Case That Killed the Truth, Wall St. J., June 26, 1996.) And a medical writer for the Detroit Free Press has called it a "glaring omission" that Angell "spares her own profession for its sorry role in the [breast implant] controversy." (Patricia Anstett, Doctor, Don't Forget to Blame Yourself in Breast Implant Case, Detroit News, Aug. 18, 1996.)

Angell acknowledges that her "extraordinary research assistant... assembled a voluminous file of information on the breast implant controversy," served as "my eyes and ears, and often my brain" during the book-writing project, and "stayed in touch with many of the principals in the saga." The book's many end-notes make it clear that the "principals" her assistant consulted as sources were overwhelmingly affiliated with the implant industry. If Angell attempted to speak directly to any plaintiffs' lawyer to learn what evidence the other side had, she conceals it.

But Angell's actual involvement with the subject matter may be even closer than media commentators realize. Here the media may have failed to search out a critical fact that Angell never discloses to her readers: She has served as an expert witness for breast implant manufacturers in at least two cases.

Research by ATLA's Breast Implant Litigation Group has uncovered court filings in which Angell is designated as a defense expert witness. She was listed as one of several "general liability expert witnesses" for 3M in the Master Silicone Implant File (No.92-16650 (Tex., Harris County Dist. Ct.)) on August 1, 1994, nearly two years before either her New England Journal of Medicine article or book were published; and for 3M, McGhan, INAMED, and CUI Corps. in Highfill v. McGhan (No. CV 93-5861 (N.M., Bernalillo County Dist. Ct.)) on June 4, 1996, two days before publication of her Journal article.

In her new avocation as a tort "reform" polemicist, Angell supports neither science nor public health only the movement to immunize industry and the professions from accountability. She ignores the fact that there is no real contradiction between science and law on breast implants because science and law respond to different needs.

Science seeks to understand the effects of implants on the body--something industry ignored for 30 years. Uncovering the "scientific" truth could take another 30 years, and, of course, it could confirm the plaintiffs' allegations: a possibility Angell essentially ignores. Attorneys will recognize that the courts' narrower role is to decide disputes among lay citizens, and courts cannot constitutionally delay justice for 30 years.