David E. Bernstein

George Mason University 
School of Law
3401 North Fairfax Drive
Arlington, VA 22201
(703) 993-8089 (voice)
(703) 993-8202 (fax)

dbernste at gmu.edu


Breast Implant Litigation Home Page

This Page  is No Longer Being Updated

The breast implant litigation has not been 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.  I regret that I cannot dispense legal advice.

Silicone-Gel Breast Implants: Health and Regulatory Update 2000

The most comprehensive review of the literature on implants to date, by the Institute of Medicine, has found no connection between implants and systemic disease of any kind.  Click here for the report.

The Science Panel appointed by Judge Pointer has found that the plaintiffs' claims that breast implants cause systemic disease are not supported by the available scientific evidence! Click here for the report.

Are you a woman who has questions about the status of the litigation and settlement that your attorney cannot or will not answer? The Multi-District Litigation Home Page, which has the answer to many questions, can be found here.  

Click here for the United Kingdom government's Independent Review Group's Report on Breast Implants  Like the Pointer panel, this report exonerates implants.

For the landmark ruling by Federal District Judge Robert Jones throwing out the plaintiffs' scientific evidence because it did not meet appropriate evidentiary standards, see Hall v. Baxter Healthcare, 947 F. Supp. 1387 (D. Ore. 1996).

I have been researching and writing about the breast implant litigation for more than six years.  Here are some of my writings on implants:

"The Breast Implant Fiasco," 87 California Law Review 457 (1999) (a comprehensive review of the entire mess; the link above is to a draft of this article; e-mail me and I will send you copy of the final version).

A Breast Bone of Contention,” Los Angeles Daily J., Aug. 26, 1998 (op-ed on the Boxer breast implant research bill)

"Review of Science on Trial," Litigation News, Spring 1997, at 4 [Here's an Excerpt from Science on Trial]
"Good Science Wins a Victory in the Courtroom," Charlotte Observer, Jan. 24, 1997, at 13A (also published in Seattle Times, Los Angeles Daily News, TulsaWorld, and Journal of Commerce)

"Breast Implants: A Study in Phantom Risks," Manhattan Institute Research Memorandum No. 5 (April 1995)

Here are some media articles on breast implants:

Melissa Preddy, "Silicone Implants Spawn Big Business," Detroit News, Oct. 19, 1997, at C1

Madeline Nash, "Ruling Out Junk Science," Time, Dec. 30, 1996, at 102
Joseph Nocera, "Fatal Litigation," Fortune, Oct. 16, 1995

Virginia Postrel, "Abreast of History," Reason, January 1996
An excellent, but outdated website on breast implants: Breast implants on trial (Frontline T.V. show site)


A few of my articles on Tort Reform and Junk Science:

Improving the Qualifications of Experts in Medical Malpractice Cases, 1 Law, Probability & Risk (2002) 

Frye, Frye, Again: The Past, Present, and Future of the General Acceptance Test, 41 Jurimetrics 385 (Spring 2001) 

The Abuse of Opening Statements and Closing Arguments in Civil Litigation, Manhattan Institute Civil Justice Memo No. 38 (Aug. 1999)

“‘Non-Scientific’ Expert Witnesses: What Degree of Judicial Scrutiny Should They Face?, ” Washington Legal Foundation Working Paper, Oct. 1998 (discusses Kumho Tire v. Carmichael)

"Loser-Pays: Where Next?" 55 Md. L. Rev. 1161 (1996) (co-author) (full version available from the Manhattan Institute)

"Procedural Tort Reform: Lessons from Other Nations," Regulation, No. 1, 1996, at 67

"Junk Science in the United States and the Commonwealth," 21 Yale J. Int'l L. 123 (1996)

"Scientific Evidence in the Courtroom: Admissibility and Statistical Significance After Daubert," Washington Legal Foundation (1993) (co-author)

If you are interested in a broader perspective on science and tort law, consider purchasing Phantom Risk: Scientific Inference and the Law (MIT Press 1993), which I co-edited with Peter Huber and Kenneth Foster, and which has just come out in paperback.  A Table of Contents and the first two chapters are available here for free.

I can be reached at:
George Mason University School of Law
3401 North Fairfax Drive,
Arlington, VA 22201
dbernste at gmu.edu

Click here for my home page, which has a link to my new book, Only One Place of Redress, and click here for my c.v., which has links to additional articles, reviews, and speeches I have written

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