Court Expands Definition of Breast Implants

Women who received Dow Corning "tissue expanders" to stretch their skin before breast implant surgery are entitled to part of the company's $2 billion faulty breast implant settlement, a federal appeals court has ruled.

A three-judge panel on the Sixth District Court of Appeals agreed last week with a lower-court judge that tissue expanders are indeed breast implants. Three Dow Corning tissue expanders, designed for implantation in the breast, "are filled with saline in order to stretch the patient's skin before (typically) being removed after several weeks," the court explained in its ruling.

A Federal District Court judge in Detroit previously held that "all silicone gel and saline-filled breast implants with elastomer envelopes," which include tissue expanders, share "these qualities," appeals court Judge Jeffrey S. Sutton wrote in the July 31 ruling.

"Based on our review of the record, that is a reasonable assessment of the extrinsic evidence," Sutton concluded.

Dow Corning began selling breast implants in the 1960s. By 1995, the court said, thousands of breast-implant patients had filed suit against the company stemming from their use of the company's devices. In a Chapter 11 bankruptcy petition, Dow Corning agreed to establish the $2 billion fund for patients willing to settle their claims.

This is the federal appeals court's second round of considering whether tissue extenders constitute breast implants. The first time, it remanded the case to U.S. District Judge Denise Page Hoodin Detroit to reconsider the question. Hood, whom the Detroit News said has been overseeing the fund for 15 years, affirmed her earlier decision, and the appeals court agreed.

A report in the Detroit News said Dow Corning had no comment on the ruling.

The committee advising people with claims praised the ruling, the newspaper story said. "This means that a woman who had a Dow Corning tissue expander can proceed with her claim. ... This is a significant victory since Dow Corning had urged the courts to find that these claimants should receive no benefits at all. This should conclude all appeals over this issue and allow claimants whose claims have been on hold for the past 10 years to finally receive payment."

The fund has made payments of nearly $1.3 billion to 126,000 people through March, the newspaper reported.

Nancy Crotti is a contributor to Qmed and MPMN.

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