The Jury System Works
By: Victoria C. Swanson
Two Colorado women sought justice from fellow citizens in their cases for damages arising out of silicone breast implants. Although neither woman won her case, both women received justice from our jury system.
The personal stories of each woman, one in Denver and one in Colorado Springs, are sad and tragic. For those who empathize with these women, the results of justice are hard to accept and even harder to understand. But as trial lawyers, we honor the jury system as the best system of civilized justice in the world - even when that system turns our clients away from the damages they seek.
Conceived by our ancient ancestors, trial by jury became our fundamental birthright on the great meadow of Runnymede in 1215 A.D. Baptized in the blood of British tyranny, trial by jury survived the Star Chamber, crossed the Atlantic and landed at Jamestown and Plymouth Rock. Trial by jury was married to America by the charters of her colonies. To save it from destruction we declared our independence from Great Britain and sanctified it in the Seventh Amendment to the Constitution of the United States.
Yet in recent years commercial and business interests have described the jury as "outmoded" and incompetent to consider the important issues of our day. Product manufacturers have snickered that the American jury is too, well, ignorant to pass justice on controversies of modern science. Yet our civil juries are no more than a representative fraction of the public-at-large, chosen at random. If our civil jury system is irrational, then the entire American public must be irrational. If representatives of the American people, chosen at random, are not properly qualified to serve on American juries, then how can they be qualified to participate in the electoral process? If it makes good sense to substitute panels of "educated experts" for impartial American juries, then why does it not also make good sense to entrust the election of our representatives in our state and national legislatures to the same process?
As demonstrated by the recent verdicts in favor of breast implant manufacturers and two physicians who used them, the American jury is still capable of sorting out scientific evidence and applying the law to the facts as they are presented in court.
The breast implant verdicts do not mean that breast implants are safe. What the juries did find in each of those cases is that the breast implants did not cause the serious and tragic problems experienced by each of the women whose case was presented to them.
The science says that silicone traveling in the human body is toxic. Since the 1950's medical researchers have known that injecting silicone into women made them very sick. That is why the FDA (Food and Drug Administration) banned silicone injections into humans. In 1962 Dow Corning began clinical tests on a silicone gel implant. The newly designed breast implant contained the silicone inside a silicone sack. Implants were first marketed in 1963.
The implant manufacturers relied on short-term studies of their implants to convince physicians that the implants were safe for their patients. When the FDA assumed regulatory power over medical devices in 1976, breast implants were "grandfathered" into the regulatory scheme and without a showing by the manufacturers of even the short-term research studies they had done. No independent doctors or government agency did any research on the safety of breast implants until fairly recently.
It is the millions of women who received breast implants over the ensuing years who comprised the real "research study." Over the years, their doctors began to notice they became sick in unusual and unexpected ways. Dr. Saul Pushkin, Professor of Pathology of Mount Sinai School of Medicine in New York City recently wrote: "The silicone implants most apparent failure is that they do not maintain their structural integrity. They rupture, leak, and act as a reservoir for silicone gel infiltration into human tissues......This foreign body reaction is conducive to the development of an autoimmune reaction that clinically presents a complex picture of autoimmune disease symptoms."
Women who have been poisoned by silicone experience rheumatoid arthritis and neurological disorders. Medical researchers are focusing on the statistical relationship between women with silicone implants and these unusual disorders; other researchers are trying to find out what it is that the human body does to react to silicone in such a disastrous way. "Preliminary" finds of a University of Colorado research study (funded primarily by Dow Corning) show a statistically significant percentage of women who have silicone implants also have immunological changes.
This evidence—and more—was presented to the Denver and Colorado Springs juries. Why did those juries turn the women away? The explanation likely lies in the sophisticated study of jury decision-making. Corporations such as Dow Corning employ experts in opinion research to help them decide which cases to take to trial and which cases to settle. These opinion experts conduct surveys of local opinion which is likely to be held by a typical jury in that community. These experts work much like the political pollsters who constantly take the temperature of the electorate during a political campaign.
As compared to the national spectrum, Denver juries are conservative; Colorado Springs juries are even more conservative than Denver juries. Large corporations whose products are on the line in a lawsuit will determine long before a jury is empaneled how a jury will likely react to such evidence as the fact that the woman plaintiff was a topless dancer, or that the medical evidence of a convincing autoimmune disease is muddied by other health problems.
Thus these corporations will pick and choose which cases to try to a jury, being reasonably sure of the result beforehand. Where the plaintiff is an exemplary and sympathetic citizen with medical problems that are clearly related to silicone toxicity, the case will not be chanced to a jury - those cases settle out of court, and many such cases have settled in Colorado and throughout the country.
Does this mean the jury system has become perverted? To the contrary, this means the jury system really works. It shows that a typical American jury equipped with the intuitive horse sense that comes from being born in the freest nation on the face of the earth can turn away a sick injured fellow citizen when not convinced that the injuries were caused by a defective product.
This is "Government by the People"; let it not perish from this earth.