Assessing Causation in Breast Implant Litigation: The Role of Science Panels

Abstract

LAURAL L. HOOPER [*] JOE S. CECIL [**] THOMAS E. WILLGING [***] I INTRODUCTION While the idea of court-appointed experts has been supported by individuals concerned with the courts' ability to assess scientific and technical evidence, [1] it has often been resisted by attorneys and judges who confront such evidence. [2] An increasing number of recent cases, however, suggest that court-appointed experts are gaining acceptance, even though appointments remain rare. [3] Such growing acceptance may be due to the increasingly difficult nature of scientific and technical evidence, [4] or to Justice Stephen G. Breyer's recent endorsement of such experts in General Electric Co. v. Joiner. [5] Moreover, recent programs to aid judges in locating qualified experts who are willing to serve will likely encourage further appointments. [6] Nevertheless, the appointment of such experts remains sufficiently rare that problems are difficult to anticipate. In two recent cases--Hall v. Baxter Healthcare Corp. [7] and In re Silicone Gel Breast Implants Products Liability Litigation [8]--federal judges appointed panels of scientific experts to help assess conflicting scientific testimony regarding causation of systemic injuries by silicone gel breast implants. This article will describe the circumstances that gave rise to the appointments, the procedures followed in making the appointments and reporting to the courts, and the reactions of the participants in the proceedings. It will also offer specific suggestions for improving the use of such panels of appointed science experts. Expert panels may be developed and used in a variety of ways; these approaches illustrate only two forms that such panels may take. Part II offers a brief overview of the silicone gel breast implant product liability litigation and the two cases in which science panels were appointed. [9] Subsequent parts compare the procedures used to select the experts, the instruction of the expert panels in their tasks, the preparation of the panels' reports, the depositions and testimony of the panel members, and the costs of the two programs. Part VIII provides a preliminary assessment of the effect of each program based on the participants' impressions and citations to the reports in related litigation. Finally, Part IX summarizes participants' overall reactions to the two procedures and suggests issues for judges to consider when appointing future panels. II OVERVIEW OF SILCONE GEL BREAST IMPLANT LITIGATION Claims of systemic injuries arising from silicone gel breast implants have presented some of the most complex scientific evidence issues in the federal courts. [10] Following the removal of silicone gel breast implants from the market in 1992 by the Food and Drug Administration, more than 400,000 cases were filed in federal and state courts alleging injuries arising from leakage or rupture of the shell that encased the silicone gel. The most troublesome allegation concerned the extent to which the silicone gel caused or exacerbated connective tissue diseases or immune system dysfunction. [11] Research on these issues was being reported even as the cases were being litigated. [12] Moreover, an assessment of this research required an understanding of several areas of science, including epidemiology, toxicology, immunology, rheumatology, chemistry, and statistics. The emerging nature of this research and differing research methodologies have made such cases among the most difficult ever presented in federal c ourts. [13] The federal courts have responded to this wave of difficult cases by consolidating the cases for pretrial proceedings. In 1992; the Judicial Panel on Multidistrict Litigation transferred all silicone gel breast implant product liability cases filed in federal courts to the United States District Court for the Northern District of Alabama before Chief Judge Sam C. …