SLEIGHTS OF SILICONE

By TAMALA M. EDWARDS

When a Texas surgeon put Dow Corning silicone implants in Uneeda Laitinen's breasts 25 years ago, he assured her they were not just safe but indestructible. "He said when I was dead in my grave, I'd have beautiful breasts," she recalls. But going from a 34B to a 36C seemed to bring on a plethora of problems: severe migraines, memory loss, aching joints and nerves so damaged that Laitinen was unaware that a hot skillet was searing her until she smelled burning flesh. Her cyst-riddled ovaries were removed, and she developed eight stomach tumors. "There's no history in my family, no reason for me to be ill," says Laitinen, 51. "There has to be something else."

She and thousands of other women believe the "something else" is silicone implants. Last week a class action against Dow Chemical, a parent company of Dow Corning, moved forward when a Louisiana jury found that Dow knowingly deceived the women by hiding negative information about silicone. The trial's second phase, which is to begin this month, will take up the most crucial question of all: Can silicone implants be scientifically proved in a court of law to be the cause of these ailments? At the same time, the case will test a more philosophical issue: How compatible in court are the ever questioning nature of science and the sword-sharp decisiveness required by justice?

Trials involving science often pit expert against expert, with lawyers on each side trying to expose the scientists on the other side as charlatans or proponents of "junk" theories. In 1993, however, the Supreme Court ruled in Daubert v. Merrell Dow that judges should act as gatekeepers, assessing the validity of the experts who take their stand. "Before Daubert, judges were unwilling to prevent testifying," says Joseph Sanders, a University of Houston law professor. "Now they're more willing to exclude experts." The results are dramatic, even pivotal, in cases involving breast implants. Last year Judge Robert Jones of Oregon used the findings of his own panel of scientists to exclude the plaintiffs' evidence in some 70 cases brought against implant makers. Federal Judge Sam Pointer of Alabama is evaluating pretrial evidence in 22,000 cases. To this end he has carefully assembled a four-member expert panel. Its conclusions and videotaped depositions are expected to influence not just Pointer but many other judges as well in determining what should be allowed in court. His report is expected early next year.

The issue of judges accrediting scientists is controversial enough. "It's very discretionary," says Sheila Jasanoff, head of science and technology studies at Cornell University. "As a result, you're getting court-driven findings as opposed to true science." But even "true" science may sometimes not be enough to sway a jury. Dow Chemical lawyers are armed with studies by Harvard and the Mayo Clinic, assessments from the Food and Drug Administration and the American Medical Association, and testimony from respected scientists, all saying there is no evidence of a significant link between silicone and systemic disease in women with implants. Yet twice before, in trials similar to the one that will unfold in Louisiana, juries have awarded plaintiffs millions of dollars. Why? Because scientists can never say anything is absolutely true or false. Who knows what future research may uncover? "That's where we stumble," admits John Musser, a Dow Chemical spokesman.

Plaintiffs' lawyers can contest the defense studies and ask the jury to weigh personal example against laboratory empiricism. For example, in the Louisiana trial plaintiffs intend to note that one of their claimants was rushed into emergency surgery after what her doctors said was silicone began leaking through her skin from a ruptured implant. Marcia Angell, executive editor of the New England Journal of Medicine, decries the "pseudo science" that links breast implants to illness: "It comes down to which side has the most personal experts and puts on the best show."

In the case decided by the Louisiana jury last week, plaintiffs' attorney Dawn Barrios presented her case in layman's terms while Dow's lawyers showed up with treatises and textbooks. "You could see the jury's eyes glaze over," she says. Moreover, internal Dow memos explicitly referring to "cover-ups" and calling the marketing of the implants "inexcusable" and "right up there with the Pinto gas tank" did nothing to win sympathy for the company.

Still, Dow claims to have not only the weight of scientific evidence but also a trend among juries: 14 out of 19 smaller cases were decided in favor of the company this year. Lawyers for the plaintiffs hope the Supreme Court will restore some of their power to call witnesses by reconsidering and reining in its Daubert ruling. As for the women in the case, their appeal is one that neither science nor law has answered so far. Says Laitinen: "We just want our health back."

--Reported by Barbara Maddux/New York and Bruce van Voorst/Washington

With reporting by BARBARA MADDUX/NEW YORK AND BRUCE VAN VOORST/WASHINGTON