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As a board member of Dow Corning, I vote in favor of the proposed class action settlement. If you consider the benefits associated with this option they far outweigh the costs of declining the settlement. By late 1, 10,000 suits were filed against manufacturers of breast implants. When you consider the amount of time that would be forfeited in dealing with all the cases individually it is an absolute waste. We as a firm need to bite the bullet and pay for our negligence, regardless if we believe that we were at fault or not. The individual law suits that would undoubtedly last for what would seem like an eternity will promote negative publicity for our entire company and slander our company name. In reality we have more to lose if we don’t accept this settlement. There is also a considerable outside risk associated with prolonged litigation and you have to ask yourself how long you would want the aftermath to linger. The possibility of women opting out should not be given much attention. Past instances show that it is more difficult to enter into a lawsuit on your own rather than being part of a class action suit. The jury could possibly view these individuals as being greedy and possessing thoughts that our generous settlement was not good enough for them. As a member of the board, I strongly recommend the acceptance of this proposed settlement.
Financially it is in our best interest to go ahead with the settlement. The cost of litigations more than doubled from 11 to 1 and in 1 it drastically increased by $571 million. By means of careful planning we have set aside an implant reserve that totals $1.1 billion. The proposed settlement calls for a total fund of $4.5 billion where our contribution would total around $ billion. In hopes that our insurance company will pay for half of our payment we can be expected to pay around $1 billion. Financially the best option for us is to accept the settlement because we already have the necessary funds on reserve. If you add up the costs of each separate lawsuit they would greatly exceed the $ billion settlement. We must also ask ourselves how important this product is to our company. In 170 medical implants accounted for only 1% of our total sales. In 1 we announced we were dropping out of the breast implant business altogether which proves that this product is not worth the risk.
Bearing in mind that the scientific evidence that would be brought to the juror’s attention during trial would not work to our advantage, it gives us even more reason to accept the settlement. The internal memos that have surfaced will show the jury that we were aware of the diminished quality of our products, “When will we learn at Dow Corning that making a product just good enough always leads to products that are not quite good enough?” Although at times we made valiant attempts to correct the defected products, the evidence will work against us.
Everyone at DCC follows the Corporate Code of Conduct that was first introduced in 176 and we have prided ourselves on our high level of ethical behavior. Though some individuals may disagree, DCC acted in the most ethical way possible. We sought ways to reduce potentially harmful products by strengthening the outer walls of the implant to decrease the occurrence of ruptures and actively worked to correct gel bleed in our products. “Safe does not mean risk free”, DCC and the public were aware of the potential risks but their decisions were guided by the benefits. We have an obligation to our customers and the medical community as a whole. It is our responsibility to inform customers and distributors of potential hazards.
The situation that DCC is facing has become all too common over the years. The media continues to do what they do so well; exasperate the public while creating generalized anxiety among the two million women with breast implants. Newspaper headlines and television news reports formed a false picture of our company. The media led the public to believe we were unethical and undaunted by the well-being of our customers. Thus, the media helped create the spark that fueled the flame of thousands of individual lawsuits.
The onslaught of lawsuits against the breast implant community turned the heads of the legal community. Billboards advertised legal services that were aimed directly at women with breast implants. In general attorneys filed suits on a contingency basis in which they would receive anywhere between 5%-40% of their clients compensatory and punitive damages. We could not depend on the jury to rule in our favor because they tend to base their decisions on the sympathy they would possess for the numerous women. On the other hand, the judge presiding over the cases would be more inclined to rule more objectively.
Interest groups had mixed emotions regarding their stance on the DCC controversy. The Public Citizen group fought hard against our company. They obtained internal company studies that suggested that silicone was in fact cancerous. Public Citizen created a “How to Sue” kit which contained potentially incriminating evidence to aid women in their legal battle with DCC. Odd as it sounds several breast cancer support groups backed DCC. They presented evidence that .5% of women with breast implants were in fact satisfied with the product. Some women argued that it was a violation of women’s rights to choose what was best for her body. It is quite difficult to hold doctors accountable for the complications associated with breast implants. Because memories pertaining to specific patient consolations fade over time, the cases against the physicians rarely hold up in court. Driven by the power of money plaintiffs soon realize that doctors lack the financial prowess to fund numerous claims therefore the plaintiffs set their sights on the deeper pockets of large corporations.
Economically the product liability system should function similar to that of an insurance policy like our class action settlement. The established funds will serve to compensate those individuals that were injured. This system provides the manufacturer with an incentive to produce a safer product but unfortunately, some firms are forced to drop out of the industry because of either possible risks or lack of resources.
Politically the product liability system takes on the role of a lottery, which clearly demonstrates the “big gains to few, small costs to many” concept. Many cases show signs of opposing factions but in the end an equitable solution is rarely achieved. Society overall will not benefit from the politically based product liability system and productivity and innovation will be impacted negatively. Prices will ultimately increase and the potential for new and innovative products will drop considerably. In order to protect the overall benefits of society an apposite balance must occur between cooperation and competition.
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