For Now, an Answer

Some women were relieved to know there might at last be closure to their long legal saga. Others were disgusted, furious that the amount of compensation will be grossly inadequate to answer the suffering they have endured. The broad range of immediate reaction to Wednesday’s news of the tentative $3.2-billion settlement between Dow Corning Corp. and lawyers for women with silicone breast implants illustrates the potential as well as the inadequacies of the legal system in resolving agonizing, complex injury claims.

The tentative agreement would resolve claims from more than 170,000 women who insist that the cosmetic implants Dow Corning manufactured, as far back as the 1970s, harmed their health, causing debilitating and painful autoimmune diseases like lupus and scleroderma. Many of the details have not been finalized, and a judge’s gag order prevents the release of more than the broad outlines. But it’s known that compensation will be based on the seriousness of the injury a woman claims, providing up to $300,000 for those who have a severely debilitating illness. Funds will also be available for women who wish to have implants removed.

No less significant, the agreement, which must still be approved by a judge and those who sued, would enable Dow Corning to emerge from Chapter 11 bankruptcy, which the company entered in 1995, seeking refuge from tens of thousands of implant damage suits.

It is between these two imperatives--the need for a healthy corporate bottom line on the one hand and the need to fairly and promptly compensate people who suffer medical and emotional harm from dangerous products on the other--that judges and juries have found themselves caught over and over again in recent decades. Asbestos, the Dalkon Shield intrauterine device, Agent Orange, cigarettes: In cases involving each of these products lawyers and judges have wrestled with the same vexing questions. When is compensation due alleged victims and what sort of injuries or exposure merits compensation? How should compensation be distributed across a group of people with a wide range of injuries?

In many of the so-called mass torts--lawsuits involving thousands of people who claim similar injuries from the same product--scientific research has sometimes helped answer the first question. We now know, for example, that exposure to asbestos fibers can cause mesolthelioma, an otherwise rare cancer, and that the Dalkon Shield caused uterine infections in some women that resulted in infertility. But what about when scientific research is inconclusive or, as with silicone breast implants, still does not convincingly support a link to systemic disease?

Where science leaves off, other forces take over: the visibility and political clout of those who file the lawsuits--women with implants, Vietnam veterans, shipyard workers who handled asbestos insulation--and the desire of corporations like Dow Corning to end years of litigation with its attendant costs and uncertainties.

Thursday, in a related development, the California Supreme Court held that implant victims cannot sue the parent corporation, Dow Chemical Co.; this decision is likely to cause another push toward final settlement.

Settlements like Wednesday’s tentative agreement, reached in the shadow of both politics and scientific uncertainty, are necessarily imperfect resolutions to mass personal traumas. But in this realm, imperfection may be all that is possible.