Fw: Deconstructing Angell ~ Medical Editor/Civil Justice Critic Doubles as Expert Witness in Breast Implant Cases

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From: " ilena rose " <ilena@...>

Sent: Friday, August 03, 2001 10:13 PM

Subject: Deconstructing Angell ~ Medical Editor/Civil Justice Critic Doubles

as Expert Witness in Breast Implant Cases

> Wed, 29 Apr 1998

>

> Subject: Deconstructing Angell

>

> CIVIL JUSTICE SYSTEM Opinion

>

> Medical Editor/Civil Justice Critic Doubles as Expert Witness in Breast

> Implant Cases

>

> After writing a book and two articles that are highly critical of the U.S.

> civil justice system's handling of the breast implant controversy, Dr.

> Marcia Angell, Executive Editor of the New England Journal of Medicine,

> has been identified as an expert defense witness for several implant

> manufacturers without disclosing to her readers her partisan affiliations.

> She has also been criticized for not taking a " scientific " approach to her

> topic.

>

> In a book entitled Science on Trial: The Clash of Medical Evidence and the

> Law in the Breast Implant Case (Norton, 1996); in a " special article "

> entitled " 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 in a second article, " What's Really Behind the Attack on

> Silicone Breast Implants, " 73 Medical Economics 131 (September 9, 1996),

> Dr. Angell essentially takes on all players in the implant litigation

> other than those held responsible to date by judges and jurors: the

> implant manufacturers and the plastic surgeons who have implanted one to

> two million women. She faults plaintiff lawyers for their greed;

> physicians cooperating with the litigation for unethically subordinating

> their professional responsibilities to the business opportunities provided

> by the ongoing litigation; the news media for promoting sensational

> stories rather than encouraging public understanding of science and health

> issues; and the civil justice system as a whole for failing to follow

> scientific standards of evidence.

>

> The book has been cited favorably in articles and editorials echoing

> Angell's concerns about the news media. See Amy E. Schwartz, " Thousands of

> Lawsuits Later: How Scientific Evidence Got Blurred in the Breast Implant

> Saga, " Washington Post, July 25, 1996, at A29; Harwood, " Eating

> Our Words, " Washington Post, July 17, 1996, at A19). It has also been

> commended in general terms by tort polemicist Max Boot. See " The Tort Case

> That Killed the Truth, " Wall Street Journal, June 26, 1996.

>

> In the journal article, which is based on the honorary Shattuck Lecture

> she delivered at the May 4, 1996, annual meeting of the Massachusetts

> Medical Society, Angell calls civil justice " antiscientific and

> irrational, " which produces " judgments based on anecdote and speculation. "

>

> Yet unlike the justice system she scorns, with its requirement that

> fact-finders consider all relevant evidence, Angell's Science on Trial, in

> its 200-plus pages of criticism, is almost 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 one of

> the criticisms--of the Manhattan Institute's campaigns against the civil

> justice system over the last decade. Angell voices concern about a

> mythical " litigation explosion " ( " people sue each other instead of

> voting " ) and the elusive " tort tax, " in addition to deriding class action

> suits, juries, and the contingent fee system. Science on Trial at 71-75.

> 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 breast implant problems:

> contractures caused by buildup of scar tissue; gradual leakage of

> silicone; rupture; and difficulties with performing mammography. Science

> on Trial at 40. She concedes that silicone implants " are capable of doing

> a lot of local damage when they rupture or contractures form. " Science on

> Trial at 191. Otherwise, the book focuses on the paucity of clinical

> causation evidence regarding connective tissue and other systemic

> diseases.

>

> A scientifically trained editor who voices frequent disdain for lawyers,

> judges, juries, and even doctors who base conclusions on anecdotal

> evidence, 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. " Science

> on Trial at 39. Elsewhere she refers to a 1990 survey commissioned by the

> American Association of Plastic and Reconstructive Surgeons (whose members

> have implanted one to two million American women) that " found that over 90

> percent of women with breast implants were well pleased with the results. "

> If a million women have them, she explains, the survey means that " less

> than 100,000 are displeased. " If two million, then " less than 200,000 are

> displeased. " Science on Trial at 19. In contrast, she dismisses a 1991

> survey finding 60 percent of implant patients satisfied and 40 percent

> with complications as a " very small " survey.

>

> Alternatives to Civil Justice?

>

> What Angell says of science itself in the journal article might well be

> said of civil justice: it " is not perfect, but it is the best method we

> have. " Courts let each side make its case, with rules of evidence and

> supervision by judges. This process may not be scientific, but

> " antiscientific and irrational " it is not. Angell's sweeping

> generalizations (courts " largely [ignore] the rules of science and [hand]

> down verdicts that fly in the face of evidence " ) are singularly unhelpful

> to anyone seeking to understand the implant controversy.

>

> More seriously, by engaging in this polemic Dr. Angell violates the same

> cardinal rule of science for which she inappositely calls the law to task:

> she has studiously ignored much of the evidence, basing many of her

> uncritical observations on tort " reform " jeremiads and media reports. The

> latter strains her approval rating even with arch-critic Max Boot, who

> complains that, " although Dr. Angell herself has been closely involved

> with the breast implant controversy, she often relies on press accounts to

> describe developments. " And a medical writer for the Detroit Free Press

> who has followed the implant controversy for several years is more to the

> point, calling Angell on a " glaring omission " when she " spares her own

> profession for its sorry role in the controversy. " Anstett,

> " Doctor, Don't Forget to Blame Yourself in Breast Implant Case, " Detroit

> News, August 18, 1996.

>

> Angell herself 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. " Science on Trial at 15. The book's many endnotes

> make it clear that the " principals " consulted by her assistant as sources

> of information were overwhelmingly affiliated with the implant industry.

> If Angell attempted to speak directly to any plaintiff lawyer to learn

> what evidence the other side had, she carefully conceals it.

>

> Failure to Disclose Defense Affiliation

>

> But Angell's actual involvement with the subject matter may be even closer

> than Boot and the other media commentators realize. Here the media may

> have failed, once again, to search out a critical fact that Angell never

> discloses to her readers: she has been designated as an expert witness for

> breast implant manufacturers in at least two cases.

>

> Research by the Breast Implant Litigation Group of the Association of

> Trial Lawyers of America 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, Dist. Ct. of County, Texas, 157th Judicial

> District, on August 1, 1994 (nearly two years before either her lecture or

> book were published); and by 3M, McGhan, INAMED, and CUI Corps. in

> Highfill v. McGhan et al., No. CV 93-5861, 2d Judicial Dist. Ct.,

> Bernalillo County, New Mexico, on June 4, 1996, two days before

> publication of her New England Journal of Medicine article.

>

> Ironically, the August 29, 1996 issue of the New England Journal of

> Medicine published an editorial supporting use of an anti-obesity drug

> signed by two researchers who had financial ties to the drug's

> manufacturer. Reporters following the story quoted Dr. Angell as saying

> that the matter arose from " a genuine misunderstanding, " but that it was

> nevertheless " very serious, " and that the authors' ties to the

> manufacturers would have excluded them from the pages of the New England

> Journal of Medicine. See Philip J. Hilts, " Mix-Up Seen in Backing Obesity

> Drug, " New York Times, August 29, 1996, at D18.

>

> 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 implants' effects on the body--something industry ignored for

> 30 years. Uncovering the " scientific " truth Angell professes to admire

> 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.

>

>

>

> Expert Designation Documents Available

>

> The Editor of the CIVIL JUSTICE DIGEST has available copies of the court

> filings cited above related to Dr. Marcia Angell's designation as a

> defense expert witness in breast implant litigation. Copies may be

> requested from Meghan Donohoe, The Roscoe Pound Foundation, 1050 31st

> Street, N.W., Washington, DC 20007. Fax requests may be directed to

> 202-965-0355.

>

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