The Breast Implant Fiasco

54 Pages Posted: 15 Jul 1998

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School


This article, a review essay of Marcia Angell's Science on Trial, begins by discussing the history of breast implant litigation. The implant litigation was not driven by scientific evidence, but by political posturing by self-proclaimed consumer activist Sidney Wolfe, FDA Commissioner David Kessler, and others, sensationalistic media coverage, public opinion inflamed by revelations that implant manufacturers had not followed up on concerns about the potential health effects of silicone, and a contingency fee system that encourages speculative litigation. Once plaintiffs' attorneys won a few big, early victories through superior lawyering, reliance on junk science, and emotional appeals to juries, this attracted investment by other attorneys and created an irrepressible flood of litigation. Next, this article discusses reforms of the American tort system that would reduce attorneys' financial incentives to bring scientifically-dubious claims. First, courts should establish and enforce strict standards for the admissibility of scientific evidence. Second, the contingency fee system should be replaced with the British conditional fee system. Finally, trial procedures should be reformed to increase the probability that fact-finders will arrive at scientifically-correct judgments. Finally, this article considers and rejects recent proposals to allow plaintiffs in toxic tort cases to recover damages for their illnesses without proof of causation if there is proof of defendant's negligence. Instead, the article proposes a legislative solution, akin to whistle-blower statutes and qui tam provisions, that would permit individuals to bring an action in a federal tribunal against a company that is negligently putting the health of the public at risk.

Suggested Citation

Bernstein, David Eliot, The Breast Implant Fiasco. California Law Review, Vol. 87, No. 2, pp. 457-510, March 1999, Available at SSRN: or

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)


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