The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. I'm Robert MacNeil in New York.

MS. WOODRUFF: And I'm Judy Woodruff in Washington. After the News Summary we focus on today's disclosure that Dow Corning knew over 20 years ago that breast implants could be risky. We tie that to the Bush administration proposal aimed at making it harder to file civil lawsuits. Next, the first in a series of conversations with doctors about what's wrong with the nation's health care system, and finally a look back at writer and historian Alex Haley. NEWS SUMMARY

MR. MacNeil: The nation's leading manufacturer of silicone breast implants released documents today showing it knew of problems with them for more than 20 years. Today's disclosures by Dow Corning Corporation came under pressure from the Food & Drug Administration. Problems revealed in the internal memos and other documents included leakage of the silicone gel and rupture of the implants. They also showed the company's scientists had raised questions about their safety. The implants were voluntarily withdrawn from the market and are the subject of a number of lawsuits. Hours after this afternoon's disclosure, Dow Corning announced it had named a new chairman. A company spokesman today talked about the documents released at a Washington news conference.

ROBERT RYLEE, Dow Corning: They reflect only one person's opinion at that time. They are not scientific, but they do reflect the kind of dialogue that often takes place within a company and that in reality should take place because it helps focus you in the direction for further research and development. In our estimation, the science supports the safety and the effectiveness of silicone breast implants. This is not to suggest that there are not risks. There are risks for any implantable device and for any surgical procedure.

MR. MacNeil: Dr. Sidney Wolfe of Ralph Nader's Public Citizen Group said the memo showed safety questions were inadequately addressed and the breast implants should not have been used in humans. He also spoke at a Washington news conference.

DR. SIDNEY WOLFE, Consumer Advocate: I think that the company is really talking out of four sides of its mouth. Yes, all companies have internal memos that are the "normal dialogue." But the memos that least worry me are that the dialogue is one of employee after employee saying we haven't done enough safety studies at a time when millions of women have had these implants put in. That's a very worrisome kind of dialogue.

MR. MacNeil: We'll have more on this story right after the News Summary. Judy.

MS. WOODRUFF: U.S. military pilots trained to fight the former Soviet Union today began flying humanitarian aid to its people. We have a report narrated by Vera Frankel of Worldwide Television News.

MS. FRANKEL: Ready for takeoff, tons of relief for former cold war enemies. Operation Provide Hope could just as well be called Operation Prevent Hunger as the new commonwealth state wrestles with nothing less than a food crisis. These boxes were once destined for U.S. troops fighting in the Gulf. Some critics say American aid is too little, too late, coming months after similar efforts by the Europeans, particularly Germany. As the airlift to Moscow got underway, more goods were flown in from Turkey to the Eastern states of the commonwealth. Hours later, the first planeload taxied in Moscow's Sheramevyo Airport. The American ambassador to Russia, Bob Strauss, acknowledged its cargo was just a drop in the bucket compared to the country's needs, but as he inspected tons of apple pie filling, he said so far the relief operation had got off to a good start. What Operation Provide Hope will provide in the long-term is questionable. In the next two weeks, 54 flights like this one will land in cities around the commonwealth, but there are some voices in Moscow saying it's humiliating that a former super power is now reliant on Western charity.

MS. WOODRUFF: Sec. of State Baker went to the former Soviet Republic of Moldova today, the first of seven republics he will visit this week. Baker will be holding talks on controlling nuclear weapons and formalizing relations withthe U.S. Britain today ordered 600 extra troops in Northern Ireland in a bid to stop a surge of political violence. There are already 18,000 British troops in the province, the highest number since the 1970s. Twenty- six people have been killed so far this year in attacks by the Irish Republican Army or by pro British Protestant loyalists. Britain's prime minister, John Major, will hold talks on the violence tomorrow with political leaders from Northern Ireland.

MR. MacNeil: Muslim fundamentalists in Algeria killed eight police officers today. The killings came a day after the country's military imposed a state of emergency and banned the fundamentalist party. It's part of a crackdown on Muslim fundamentalists begun to prevent them from coming to power in an election. In Venezuela, a crackdown on the media continued today when police confiscated all copies of a leading newspaper. They also surrounded the newspaper's building and searched people leaving it. Restrictions on the press began after a failed coup last week. Since then, several newspapers have been confiscated or censored. The International Federation of Journalists today condemned the crackdown and called for the restoration of press freedoms in the country.

MS. WOODRUFF: Tonight the people of Iowa will be the first in the nation to make their choice known for the Democratic Presidential nomination. The winner of the Iowa caucuses is likely to be Iowa's own Senator, Tom Harkin. He is virtually unchallenged in the state by the other Democratic candidates. On the Republican side, President Bush will make his second campaign trip to New Hampshire on Wednesday, the day that he formally announces his candidacy for reelection. He is being challenged in New Hampshire by political commentator Patrick Buchanan.

MR. MacNeil: Author Alex Haley, who wrote "Roots" and the "Autobiography of Malcolm X," died today of a heart attack at a Seattle hospital. He was 70. "Roots," which traced Haley's own family's ancestry back to Africa, won him the Pulitzer Prize in 1977. It was adapted for television and seen by hundreds of millions of people around the world. We'll have an excerpt from an interview with Alex Haley later in the program, but first, the case that produced the facts on breast implants and doctors on health care solutions. FOCUS - LEGAL LIMITS

MS. WOODRUFF: We do lead tonight with the latest news in the debate over breast implants. Today's release of new data by the Dow Corning Company, the largest manufacturer of breast implants, brings to light documents that the company had for over 20 years. Critics claimed they proved the company knew that its implants could be harmful. An expert panel from the Food & Drug Administration will meet next week to evaluate the content of the document and decide whether or not implants should remain on the market. Company documents came to light largely as a result of the lawsuit against Dow and we will have more about that later. But first, we hear more from Dow Company officials who today said the company had nothing to hide.

ROBERT RYLEE, Dow Corning: These are internal memos. They do raise issues. They're the kinds of things that you want your people to do, you want them to raise issues. This is how you learn. This is how you go through the evolutionary development of a product. I think it is highly unusual, if not unprecedented, for a company to put all of its internal memos like this in the public domain. Remember, each of those by itself is really one part of a multifaceted dialogue with communication and discussion that goes on. They have to be put in context if they're going to be reviewed by the public. And that's what we've been attempting to do. The important point is we have not and we are not attempting to hide or conceal anything. We have been willing to put it all out here. Obviously, no one likes to do that at times. You would not to put all of your own private family discussions out for the public to view, but this is what we're doing because we think that the charge that we're trying to hide something is totally false.

MS. WOODRUFF: We explore what today's revelations mean for the future of silicone breast implants and the Dow Corning Company. Gordon Crovitz is a columnist and assistant editorial page editor for the Wall Street Journal. Mr. Crovitz is also a lawyer and his columns, as well as the paper's editorials, have supported Dow Corning. Alan Morrison is a lawyer and director of the Public Citizen litigation group which has been advocating that breast implants be banned. We invited Dow Corning to send a representative this evening but they declined. Mr. Morrison, to you first. What do today's disclosures tell us that we didn't already know about the background of these breast implants?

MR. MORRISON: They confirm what most of us have known for some time, which is that Dow has been much less than forthcoming and what it's told the public about what it knew a long time ago. There are two particular aspects, these are worth noting. First, there was a lawsuit in 1984 in which many of these documents were turned over to the plaintiff, but at the conclusion of that lawsuit, Dow as a price of settling the case sealed the lips of a lawyer so that he could not even tell the Food & Drug Administration what he had discovered.

MS. WOODRUFF: So how does that relate to what came out today?

MR. MORRISON: Well, this is confirmatory of what we knew a long time ago, at least what that lawyer knew what was prevented by Dow from telling even the FDA about what was going on.

MS. WOODRUFF: So it's only because of subsequent events and the FDA saying you've got to come forward with more documents.

MR. MORRISON: We also were trying for several years under the Freedom of Information Act to get the few documents that Dow submitted to the FDA which they claimed the drug was safe, the material was safe and effective, and Dow insisted that we could not get that. A court ruled in our favor, but the case has been stayed pending appeal. So all of these suggest to us that there has been a concerted effort on the part of Dow not to tell the public what's been going on about the product.

MS. WOODRUFF: On the specifics though what is it that we know now that Dow knew 20 years ago or more or whatever about whether or not these breast implants were safe?

MR. MORRISON: Well, we know both there were internal memoranda from people at Dow saying we aren't checking these out, we don't know whether they're safe, we have rupture problems that we're not doing anything about. There are documents released from plastic surgeons who were writing Dow saying, I'm trying to help and cooperate, but you're not cooperating, you're not doing anything about it. Now, it's true. These are not all the documents, but the ones that we have here are terribly damning as far as what Dow knew not yesterday or the day before, but we're talking 1976, 1978, 1985.

MS. WOODRUFF: But you're saying we don't have all the documents yet?

MR. MORRISON: Well, I don't know whether we have all the documents. I have a number here that we got when Dow released them today. I've had a brief chance to look at some of them. Dr. Wolfe, who you heard earlier, has had a chance to look at more of them than I, but they are very alarming and they're consistently a general problem, which is that in product liability litigation of this kind, the manufacturer is not only insisting that the public doesn't find out about it, but they don't want the regulators to find out about either.

MS. WOODRUFF: Mr. Crovitz, we don't expect you to serve as a spokesperson for Dow Corning. As we said earlier, we asked them to send a representative, they chose not to, but have you been able to read, been able to get hold of the documents today? Have you been able to get familiar with them in any way?

MR. CROVITZ: I haven't read the 800 pages of documents, but I think that we can tell from the line-up of your guests tonight what the real story is. We're talking about the dangers of breast implants. All of your guests are selected because they're trained in the law, not in medicine, not in immunology, not in any health science at all. What we know here is that some contingency fee of lawyers over time were able to win some cases against this product as they have won cases against other products, that eventually when science was able to take control again, science was able to prove it is not nearly so dangerous as the lawyers claimed. It's an "only in America" spectacle that we have here where products that are later proven to be perfectly safe are driven off the market by lawyers where firms decide that the cost of defending these lawsuits, even if they aren't dangerous products, totally outweigh any profits they might make. And I might say, this is not some hard-to-decipher process. Public Citizen, Ralph Nader's group, in 1988 wrote a letter to the FDA saying that these breast implants ought to be banned. In 1989, the Trial Lawyers Association formed something called the Breast Implant Litigation Group. The Ralph Nader group started to sell litigation kids to these plaintiffs' lawyers.

MS. WOODRUFF: So what is your point?

MR. CROVITZ: The point is that when science abdicates to the courts, it is not surprising that women across America do not know what the dangers are. Juries and judges and lawyers and Ralph Nader groups are not about science. They're about law, and these lawyers, in particular, are about contingency fees, getting 1/3 of a judgment of every one of these cases, and we've seen product after product disappear from the U.S. market.

MS. WOODRUFF: Let me just turn back to the other side because Sidney Wolfe does represent a public health interest group and you do represent a legal --

MR. MORRISON: He and I work together.

MS. WOODRUFF: You do work together. Let me ask you then about Mr. Crovitz's point, that what we've got, in essence, I think he's saying is a snapshot of information that was available at that time but that over time it's since been proven the implants are safe and that lawyers are just trying to make something big out of something that wasn't as alarming and as disturbing as you all are making it out to be.

MR. MORRISON: We would have been glad to have had the Food & Drug Administration have all of this information, not the little dribs and drabs that they got, many years ago. Dow Corning chose not to submit this information to the FDA until very recently and we are perfectly willing to have the FDA decide these issues. But when the FDA doesn't do its job and when women are being injured, we are perfectly content to let juries of Americans decide this question, not the editorial page of the Wall Street Journal, which is, after all, not composed of doctors and scientists either.

MS. WOODRUFF: But let me just get back to the original point that I was trying to pose to Mr. Crovitz. Is it alarming, should we be disturbed that Dow Corning in 1971 or any period of time, any period back that long ago, was receiving information from doctors that patients were having problems with leakage and so on, that, as you've heard, critics are saying they should have acted on and should have alerted the general public to?

MR. CROVITZ: I don't think that Dow Corning has ever denied that there are risks to this implant procedure. There are risks to every surgical procedure. The question is: Was there full disclosure so that women knew what the risks were when they chose to have the operation? We are not in a situation where the law through the FDA has decided that women do not have that choice. There are risks, but if the product is banned, women will not be able to decide that --

MR. MORRISON: Congress has decided that.

MR. CROVITZ: Pardon me.

MR. MORRISON: Congress has decided that products must be safe and effective, not the FDA. FDA makes the choice as to which particular products are safe and effective. And Congress has made the choice. And just ask yourself, do the women you love, would you recommend that they put a silicone gel breast implant in them?

MR. CROVITZ: When David Kessler, who is a doctor and is also a lawyer, and who runs the FDA announced that he wanted a moratorium on this product, he did not cite science articles, peer review journals. He cited a jury in California. This is a process that the lawyers have hijacked, that the scientists have allowed to be hijacked, and I don't think that it serves anyone, especially the women of America, who now do not know what the risks are, to pretend otherwise. Testicular implants made of silicone, penile implants made of silicone, they're still on the market. What we're talking about here is one particular silicone-based product. The science is very much unknown, but like other products, Bendectin, for example, which had been available to American women to treat morning sickness --

MS. WOODRUFF: During pregnancy.

MR. CROVITZ: -- pregnancy, that's right -- was taken off the market when Merrill Dow realized that the price it was paying to its lawyers to defend all the lawsuits totally swamped the profits it had made from the product. It's since been shown I think to most scientists' satisfaction the product is safe, but for an American woman to get this product she has to go to Canada or to the Caribbean. She can't get in this market. We may find 20 years from now that silicone breast implants are not available in the U.S., but they're available elsewhere.

MS. WOODRUFF: Do you think that may happen?

MR. MORRISON: Anything is possible, but I don't think it's very likely. And I would also say that while there are, of course, risks in every procedure, if you read what Dow Corning is saying for years there is no suggestion at the kind of horrible things that have happened to women would have been known from reading Dow Corning's literature.

MS. WOODRUFF: You're saying they were not disclosing everything that they should have disclosed?

MR. MORRISON: They certainly not, certainly not to the FDA or to the public.

MR. CROVITZ: Let's about --

MS. WOODRUFF: You disagree with that?

MR. CROVITZ: Well, let's about disclosure.

MS. WOODRUFF: I mean, what about that specific point about whether Dow Corning was making available to patients and doctors all the benefit of all the research information they had?

MR. CROVITZ: My understanding is that they've turned over 11,000 documents, 800 pages worth today.

MR. MORRISON: Today. I'm talking about for the last 15 years. It doesn't do any good to a woman or 2 million women who have breast implants today to tell them, oh, we're turning the information over now. They want to know why wasn't that available a long time ago.

MR. CROVITZ: Well, we have an FDA, which is supposed to be a scientific body, not a body that only watches jury verdicts. I would like a scientific answer. I think most consumers would like a scientific answer, and if we're talking about disclosure, I'd like the Nader groups that pretend to be in neutral to disclose what kind of contributions they get from the plaintiff contingency fee trial lawyers. They refused to disclose this piece of information --

MR. MORRISON: That is not true.

MR. CROVITZ: -- excuse me -- all the time complaining about corporations, in this case Dow Corning, not disclosing every internal document. I'd like to see a disclosure list.

MS. WOODRUFF: I think we're getting a little far afield from the primary subject we're discussing. Let's expand this debate now to talk about new efforts that are underway to curb lawsuits against manufacturers. It's related not to the content of the day's news but the process by which it was discovered. The Dow Corning documents we've been talking about came to light, as we said, largely as a result of a California lawsuit against Dow. In that case, a jury awarded $7.3 million to a woman who claimed that her breast implants leaked and caused immune disorders. The plaintiff's lawyer was Dan Bolton, who joins us tonight from San Francisco. Ted Olson heads a group called Citizens For Civil Justice Reform, which supports Bush administration proposals to cap federal jury awards and to limit lawsuits, among other things. Mr. Olson was an assistant attorney general in the Reagan Justice Department. I want to turn to you first, Mr. Bolton. If you had had the information that Dow Corning made available today, how would it affect, have affected your lawsuit, or did you have it available?

MR. BOLTON: I, in fact, did have this information available and I obtained it for the first time in a lawsuit back in 1983, went to the FDA, and at that time encouraged Dow Corning to release the information publicly to the FDA. In 1988, they refused to do so and I'm frankly surprised to see Mr. Rylee saying today that he's always been willing to release information. That's just not true. We did use this information in the Mary Ann Hopkins case, which was recently tried in San Francisco, and it was the basis for the jury's finding in that case that Dow Corning was guilty of fraud, as well as malice.

MS. WOODRUFF: So it was a substantive part of the grounds on which the case was decided?

MR. BOLTON: Correct. There were a number of internal memos, as well as a collection of studies conducted by Dow Corning over about 30 years which showed, simply put, a disgraceful record on product safety and an appalling lack of concern for the health and safety of women.

MS. WOODRUFF: All right. We may be able to get a response to that in just a moment, but I want to move on to this legislation that we do want to discuss tonight. If this legislation being proposed by the Bush administration -- well, maybe what I want to do then is turn to you, Mr. Olson -- I was going to ask him to respond, but let me just ask you now, what would the legislation do? We've said that the attempt would be to limit lawsuits, to limit damages. What exactly would the legislation accomplish?

MR. OLSON: Well, first of all, it's a red herring to suggest that this proposed legislation is designed to curb lawsuits against manufacturers. That is not the purpose for the proposed legislation. The purpose for the proposed legislation is to make justice more efficient, more effective, and less costly. Right now we have a civil justice system in this country that takes 2.5 percent of our Gross National Product, that's five to seven times more than in the United Kingdom or in Japan. We need to have a civil justice system that is more efficient and there's nothing in any of the administration proposals that I've seen that would have any effect on the lawsuit out in California. It is not intended to prevent or preclude the discovery of relevant information.

MS. WOODRUFF: What exactly would it do, just in a nutshell?

MR. OLSON: Well, it has many proposals to it, one of which is to encourage alternative dispute resolution, which would mean that cases wouldn't have to take five years -- and I don't know how long this case took to bring to trial -- but it's the disgrace that some of these cases take so long.

MS. WOODRUFF: So it would put a limit on the number of years the case could be --

MR. OLSON: Well, it would encourage resolution of disputes that wouldn't have to go through the grinding five, six, seven year process in court.

MS. WOODRUFF: But no limit?

MR. OLSON: In some cases. Not a limit -- it is intended to allocate resources more efficiently.

MS. WOODRUFF: All right.

MR. OLSON: It's intended to require parties to produce documents more efficiently without a lot of lawyer costs.

MS. WOODRUFF: Now what about limits on damage awards?

MR. OLSON: Well, there's a proposal that the limits on punitive damages would be imposed and there's been --

MS. WOODRUFF: As opposed to compensatory?

MR. OLSON: As opposed to compensatory damage. I want to make that point clear, that there's no proposal that I'm aware of right now that would limit in any way the amount of compensation that a victim would receive in a tort case, just the amount of fine that would be imposed.

MS. WOODRUFF: And there's also a provision, as I understand it, that the loser would pay the court.

MR. OLSON: Under some, the administration's proposal says that under some circumstances, in some cases, as an experimental basis, the loser pay system which prevails in many parts of the world would be something that would be tried out.

MS. WOODRUFF: Now, Mr. Bolton, knowing what you know about this proposal, what effect would it have had on the case, if any, on the case that you were pursuing?

MR. BOLTON: Well, one of the reasons litigation frequently takes so long is because the companies fight so hard to prevent the disclosure of the documents, the internal studies and internal memos necessary to prepare a case for trial, so that's one reason for the delay. If the companies would be more candid and more forthright, we could cut down on the time period for litigation substantially. As far as the issue of punitive damages, it's important to recognize that punitive damages must take into consideration the egregious nature of the defendant's conduct as well as the net worth of the company's. So it's a relative test and I don't think it's appropriate to put a cap on punitive damages since when a jury is assessing an award, it must take into consideration the net worth of the company.

MS. WOODRUFF: All right. Let me come back to you, Mr. Olson, on both those points. The first one you said many of these lawsuits youneed additional time because the companies are not always forthcoming.

MR. OLSON: Yes. And that's a very good question. One of the proposals is designed to require both parties voluntarily to produce central information in a more efficient fashion. I would think that that's something the plaintiff's lawyers and defendant's lawyers, unless they're only concerned about their fees, should be interested in. It tends to focus on relevant core information. With respect --

MS. WOODRUFF: What about that? Mr. Bolton, you want to respond to that?

MR. BOLTON: Well, I think that's fine. The plaintiff's lawyers certainly have no obligation to producing documents, but I think it's incumbent upon companies to be much more forthright in their production of the materials necessary to prepare a case.

MR. OLSON: And nothing whatsoever in the proposed legislation has to do with allowing someone to conceal relevant information. The administration proposal has nothing to do with that.

MS. WOODRUFF: All right. What about his other point that you don't want to limit punitive damages because the defendant may have suffered great harm, and No. 2, that the net worth of the company has to be figured?

MR. OLSON: Well, the thing about punitive damages is they are paid in addition to compensation, so we're talking about tort victims, people who have been injured, receiving full compensation. Punitive damage award is a fine imposed by society for wrongful conduct. If there are going to be punitive damages, there should - - it is a violation of a public duty that occasions the payment of punitive damages. Those should be prosecuted by public officials. Mr. Morrison said a few moments ago that he'd be happy to have the FDA responsible for enforcement of these things. That's fine. If there's to be punitive damages, a government official with government supervision should enforce that process and then the fines should be paid into the government resource.

MS. WOODRUFF: You want to respond to that?

MR. BOLTON: Well, the problem with that --

MS. WOODRUFF: Well, let me go to Mr. Bolton first and then Mr. Morrison.

MR. BOLTON: Breast implants have been on the market for almost 30 years now and the government has never made any effort to prosecute the companies and in light of the information that was disclosed today, we understand what the problem is. The problem is the companies don't, aren't being honest. They're not being candid. They're not being forthright. Punitive damages play a very important role in civil litigation and they have a very important effect in causing companies to change their egregious conduct.

MS. WOODRUFF: Mr. Crovitz, do you want to weigh in on that point?

MR. CROVITZ: I would like to. I mean, what these documents that were released today show, as I understand it, is that there was an active discussion within the company over many year about what kinds of studies ought to be done. There were a lot of complaints from salesmen about products that doctors wanted to return, not necessarily for safety reasons, by the way. You know, this is an important point, but the civil justice reform is aimed at taking away some of the incentives that contingency fee plaintiff lawyers have to bring cases based on junk science. No smoking guns were released in these documents today. There was no document, as in the Pinto case, that showed that they knew at the time that --

MR. BOLTON: That's simply not true.

MR. CROVITZ: -- was very very dangerous. What we're talking about here, so far as I understand it, is arguments back and forth of the kind that we ought to have in every company in America. If we have lawsuits like this that drive a company like Dow Corning possibly into a very serious financial situation, the one thing you can be sure of is that corporations will stop keeping a paper trail of memoranda between various departments that some day or later can be taken and mischaracterized by plaintiff lawyers seeking punitive damages.

MS. WOODRUFF: Let me get Mr. Bolton's response on your point about the contingency fees, that lawyers are enticed and encouraged to go in and seek great, enormous fees for pursuing these cases. Was that the case with you?

MR. BOLTON: No. I took these cases because after reviewing the documents, I was appalled by the misconduct of Dow Corning and the complete indifference to and disregard for the health and safety of women. The beauty of the contingency system is that it allows a single individual in our society to prosecute a lawsuit against a large company in a situation where he or she would not otherwise be able to do so. Dow Corning had dozens of lawyers on its side fighting this case and Mary Ann Hopkins would never have been able to afford lawyers to take on Dow Corning. The beauty of the contingency system is that we have that privilege in this society.

MS. WOODRUFF: What about that, Mr. Olson?

MR. OLSON: Well, the problem with the punitive damage system is that it's capricious, it's haphazard. It's like a library or like lightning striking. Last week, in Texas, a jury came in --

MS. WOODRUFF: But what about the specific point that you have the company with all of its resources arrayed against --

MR. OLSON: Well, that's fine, and Mr. Bolton did very well. He recovered on behalf of his client, as I understand it, an $840,000 judgment for compensatory damages. The jury decided that that was all the damage that was done. The rest of it, we're talking about punitive damages. There might be $6.5 million in punitive damages in Mr. Bolton's case and then 500 million in another case and then nothing in another case. Because we have civil justice system vigilantes and individual juries, we have a very ad hoc, haphazard system. If we're going to have fines and penalties, they should be imposed by the government and then the recovery should be paid to the citizens.

MS. WOODRUFF: All right. You want to respond, Mr. Morrison?

MR. MORRISON: Two points. First, there is nothing in the President's bills about capping punitive damages. That's obviously next on their agenda, but it's not in the present bill. Second, there's nothing in the present bill about giving the FDA authority to go out and seek punitive damages for manufacturing.

MS. WOODRUFF: Which is what Mr. Olson --

MR. MORRISON: They can't have it both ways. Somebody has got to be able to punish these wrongdoers, and it's not enough to simply say let the criminal law work. These crimes were committed many years ago. This cover-up has been going on for years. There has never been a drug company official who's gone to jail for not disclosing documents. And, by the way, this is safety data. This is not your ordinary product doesn't work data. Mr. Crovitz, of course, hasn't seen the documents, but that has not prevented him from offering opinion about them.

MS. WOODRUFF: Mr. Crovitz.

MR. CROVITZ: Well, as I say, and if you've read all 800 pages, Mr. Morrison, then more power to you.

MR. MORRISON: I've read enough.

MR. CROVITZ: Well, I've read enough too. None of us here are scientists. What I am saying here is let the science decide; do not let punitive damages driven, contingency fee lawyers who contribute to groups like yours decide for American consumers what they are allowed to use and not use.

MS. WOODRUFF: Let me ask all of you what effect this is going to have on companies. Mr. Crovitz said among other effects, companies would stop leaving a paper trail; they would figure other ways to have these sorts of discussions. Today Dow Corning announced that its chairman and both its chairman and its chief executive officer had been removed and they were bringing in someone else. I don't know much more about the details at that, but, Mr. Olson, what does all this say about what companies will do in the future and how they should be responding when these sorts of issues come up? What is their responsibility?

MR. OLSON: I'm not prepared to comment on the merits of Mr. Bolton's case or the breast implant controversy. I will say this, that the punitive damage syndrome, which as I said last week, led to a $500 million punitive damage judgment in a case, is causing companies in this country not to take risks, not to develop new products, to stay away from innovation, to build very, very safe products, and they have to build into the costs of those products the costs of paying for the $300 billion tort system, half of which goes to lawyers and insurance companies and makes us uncompetitive with our foreign competitors. And that is what is happening in this country today.

MS. WOODRUFF: Mr. Bolton, is that what's going to happen?

MR. BOLTON: Socially responsible companies have absolutely nothing to fear from a litigation or punitive damages. On the other hand, companies like Dow Corning, which misrepresent the safety of a product, which lie to doctors and to women, do have a legitimate cause to be concerned and they should be.

MR. CROVITZ: Alan Morrison used the word "crime" to describe what happened here and what Dow Corning did. I think it would be much better to have the criminal law system determine these kinds of cases rather than plaintiff attorneys in civil actions.

MS. WOODRUFF: Why is that?

MR. CROVITZ: If there really was bad motive, if there really was criminal fraud in these cases, if a company like Dow Corning really did intentionally, knowingly, put products on the market, knowing that it was going to cause serious harm to women, then that is a matter for the criminal law. It's not a matter, it seems to me, for juries in one case to say there was no liability, in another case to say there was huge liability. We have had over the centuries a system of criminal law to determine whether or not a crime's occurred, and it shouldn't be done by juries in civil cases.

MS. WOODRUFF: What about that point?

MR. MORRISON: One of the difficulties in applying criminal law to corporations is that you cannot put a corporation in jail and it's often extremely difficult to find out which individual is responsible. Fines do have an effect. A finding of criminal liability is important, but it seems to me we ought not to depend on the government to do everything. And I would rather continue to see our system under which people can be compensated and egregious cases such as this we can have punitive damage properly imposed when true wrongdoing is found.

MS. WOODRUFF: Well, gentlemen, we thank you all for being with us. Mr. Morrison, Mr. Olson, Mr. Crovitz, and Mr. Bolton, we thank you all. Robin.

MR. MacNeil: Still ahead on the NewsHour, how doctors see the health crisis and remembering Alex Haley. CONVERSATION - PRESCRIPTION FOR CHANGE

MR. MacNeil: Next, we launch a series of conversations on what is ailing the American health care system. Recently, politicians have held most of the argument, but this week doctors tell us what's needed to fix the system. We start with Dr. Arthur Kellermann, an emergency room doctor from Memphis, Tennessee. Dr. Kellermann is the medical director of the Department of Emergency Medicine at the regional medical center in Memphis. He's also chief of the division of emergency medicine for the University of Tennessee. Dr. Kellermann wrote an editorial in the Journal of the American Medical Association last August on the crisis facing the nation's emergency rooms. Dr. Kellermann, thank you for joining us.

DR. KELLERMANN: It's a pleasure to be here.

MR. MacNeil: In general terms, what is wrong with the American health care system?

DR. KELLERMANN: I think that the strength of the American health care system is also its greatest weakness. Over the past several decades we've developed phenomenal technology, phenomenal expertise, and some of the best health care professionals in the world at treating severe disease and severe injuries. In the process though we have tended to neglect prevention and primary care such that today we have a system of care that can manage problems that other nations wouldn't dream of trying to tackle on a routine basis. Yet, at the same time, we have health care costs that are totally out of control and a population that by most public health measures life expectancy, infant mortality and others lags far behind most developed nations. So we have high costs and over a population basis very disappointing levels of health.

MR. MacNeil: Give us a concrete example of the marvelous high technology at one end and the neglect of primary care at the other.

DR. KELLERMANN: I can give you a very personal one. A few weeks ago I resuscitated a 48 year old woman brought into my emergency department with a hemorrhagic stroke. A blood vessel had burst in her brain. She was known to have high blood pressure, had been under high blood pressure medicine for some time, however, about three or four weeks before this event she ran out of her medications and she didn't have enough money to buy another refill for her prescription. That woman was brought into my emergency department after being intubated in the field by Memphis paramedics, resuscitated on the scene, and rushed to our department. She got the best critical care that Memphis, Tennessee has to offer. In six hours, we were able to generate health care costs by trying to save this woman's life that could have bought her blood pressure medications and kept her healthy for the rest of her life. In the end, she died. If she'd been lucky, she may have survived, but she would have been permanently disabled and required long-term care. In a sense, I think that shows both our strengths in terms of how we were able to intervene and in many cases save the life of a victim of a hemorrhagic stroke, but at the same time it reflects our failings, because this woman, who had a job but no health insurance, really couldn't afford her medications. She cut corners like many of us do and she paid for it with her life. In the end, we'd spent a lot of money and we've gained nothing.

MR. MacNeil: You gave our reporter another example involving infant mortality and the ability to resuscitate very seriously deprived youngsters at birth, underweight youngsters. You know, this country has the most phenomenal neonatal intensive care technology in the world. My hospital, the Regional Medical Center at Memphis, and the doctors at the University of Tennessee are some of the best neonatal intensive care doctors in the nation and we have one of the best high risk obstetrics services in the United States. But the mid South and the Mississippi Delta region have some of the highest levels of infant mortality in the United States. Why? Because our system of health care tends to cut corners on prevention and primary care. And many women in the Delta and across the United States can't get good prenatal care when they need it. The result they present to labor and delivery suites at term or with a premature birth. All that technology's brought to bear, but long after the fact, and often now, we're dealing with a very small, very disabled, and very sick baby.

MR. MacNeil: How is what you see at the emergency room level connected with the national crisis?

DR. KELLERMANN: Emergency departments in the United States in many ways I think serve as a barometer to the overall health of our system. Americans have long known that they can count on emergency departments when they're critically ill, when they're hurt, or when they've got no place else to turn. So in many respects, what emergency physicians and nurses see in the emergency department reflects how well our health care system is functioning, or how poorly it's functioning. And in 1992, America's emergency departments are in serious trouble.

MR. MacNeil: Just describe that reason briefly. What is it?

DR. KELLERMANN: Several factors.

MR. MacNeil: We've done a number of stories on this on this program, but tell us from your point of view.

DR. KELLERMANN: You know, from my point of view, I think overcrowding in America's emergency departments is probably the serious single problem we face and one that can potentially compromise care for the best insured and the most financially well- to-do among us as well as the poorest among us. We see growing numbers of individuals who cannot get access to primary care or basic care in any other setting coming to the emergency department for treatment. We see cutbacks in manpower. We have fewer nurses available. We have doctors leaving emergency medicine and not enough new emergency physicians being trained to take their place. All of this is conspiring to put tremendous pressure on our emergency care system. And that's something that I think every American ought to be concerned about.

MR. MacNeil: And that, in turn, raises the costs for insured patients in hospital, people with good health insurance, does it not, because the amount of, the numbers of uninsured people who go to the emergency room because they can't go anywhere else, that cost simply gets transferred to the insurance, to the costs of running the hospital for the insured people?

DR. KELLERMANN: It operates on many levels. What we have to understand is that when people cannot get good access to health care in a reasonable manner and must go to the emergency department for treatment, we're there to take care of them twenty-four hours a day, seven days a week. That's why we've chosen to do that, however, when the numbers become so great that the number of staff simply can't keep up with the demand, when your hospital beds are full and your critical care units are full and you can't move stabilized patients out of the emergency department and upstairs, then care becomes compromised. The best doctors and nurses in the country can't do their best work in that kind of environment. That compromises care for all of us. When an individual can't go to a primary care clinic after work and they can't afford to take a day off from work because they can't afford to give up a day's wage, they come to the emergency department. That's not inappropriate use. That's a very rational decision for those people. But care in that environment is understandably costly and in a sense, we all end up bearing those costs. So what we have is a very expensive system, but a system that I think fails to deliver what most Americans need the most, which is their health.

MR. MacNeil: So how would you fix it?

DR. KELLERMANN: The American College of Emergency Physicians Task Force on Overcrowding made five specific recommendations in 1990. Three of them dealt with issues that you could view as short-term, middle term concerns, increasing system capacity in the most critically underserved areas, removing financial disincentives to hospitals that are currently penalized for providing emergency care, and expanding our supply of nurses. But I think the two most important recommendations really parallel those made by most responsible professional organizations. No. 1 and most importantly, we've got to put our money where our mouth is and get to the business of prevention, get to the business of providing universal access to primary care. The University of Tennessee and the governor of our state have put a real emphasis on training family practitioners to go into rural underserved areas. The nation needs to take a model similar to that, train more primary care physicians in internal medicine, pediatrics, and, yes, even emergency medicine, because we're doing more primary care all the time. We need to do more programs to prevent serious injuries, as well as illness. We don't realize it many times, but injuries kill more Americans under the age of 45 than any other single cause of death and cause about a $150 billion hit on our national economy each year through health care costs and lost wages. But we put a pittance into injury control, compared to what we do to fight heart disease and cancer. These are concrete strategies that can pay off in billions of dollars in health care savings.

MR. MacNeil: You mean on the highways and what else?

DR. KELLERMANN: On the highways, on our streets, in our homes, injury prevention strategies are out there. They're real. There's a lot that we could be doing that we aren't doing today that could save billions of dollars in health care cost. We've got to be willing to view the fact that we have to invest in these strategies now in order to realize real benefits on the long-term. We'd be losing twice as many people to car crashes today, the leading cause of death among Americans due to energy, than we would in 1992 if we had failed to adopt crash safe cars and better engineered highways 10 and 20 years ago. At the time we thought we were doing that for convenience and for getting from Point A to Point B faster, but, in effect, that was one of the best public health counter measures we engineered in the last half of this century. The final strategy that we need to realize is that we've got to have universal health insurance for a basic package of services. Unless everybody in this country is guaranteed access to health care, none of us can count on it when we need it.

MR. MacNeil: Who would provide that, that kind of care, in your view?

DR. KELLERMANN: There are a lot of different models on the table and I think ultimately we're going to have to arrive at some synthesis of a number of different ideas. I'm not a health care economist and I don't have the answers. I do think though that any package of health insurance or national health care has to havesome key elements as part of that plan. One, it's got to be fair for everyone. Two, it's got to have no disincentives for patients to go and get primary and preventive services, no co-payments for the things that we know that work. You shouldn't have to pay out of pocket for childhood vaccinations. That makes too much sense. You shouldn't have to worry about scraping up $5 to get your blood pressure checked. You shouldn't have to worry about where are you going to get some spare change for a pap smear. That saves millions and even billions of dollars if we can employ those strategies effectively. Beyond that, we need to look at expert panels and employ community input and look at our interventions and look at our capacities and decide what is most cost effective, what does the most good, and make sure that we find those interventions, those strategies that are less effective. We need to back off a little bit and take a hard look at them. Do they really give us benefit, are they really worth the cost? We've got to be able to come --

MR. MacNeil: Name one that might be questionable.

DR. KELLERMANN: I think it's hard to come up with specific interventions without getting some group incensed or offended, either because they have a vested interest in the technology, or because somebody in their family that they love very dearly is suffering from that disease or condition. But we put a tremendous amount of resources and a tremendous amount of expertise and a tremendous amount of money in the last few months of life for any number of conditions and at some point, we have to say, when have we done everything we can and empower families, empower patients to say, I've had enough, American health care is wonderful, but leave me in peace, I want to be with my family, I want to have autonomy over my welfare and my freedom and my life. And we often deny patients that opportunity with the best of intentions, but we still deny them.

MR. MacNeil: President Bush is suggesting a basic program of insurance for everyone and offering a $3750 either voucher or tax deduction. Is that the kind of thing you're talking about?

DR. KELLERMANN: I think the fact that this administration now recognizes that we have a health care crisis is a positive step. Personally, I think the idea of a $100 billion voucher system is incredibly naive. What that would do, in my opinion, is funnel even more money into a system that's already got its priorities all out of whack. Besides, the type of voucher that we're talking about is not going to buy a pretty, very decent package of health insurance for a family of four for very long, even if it could today. We're outstripping inflation rapidly year by year and I see very little in the way of cost containment and most importantly, very little in the way of prevention in the administration's proposals. The fact that we need to do something and the administration realizes that, I take heart in that. I'm concerned, however, that in that same proposal, the administration appears intent on dismantling their current funding of teaching hospitals and public hospitals, and as a result, we may be kicking the blocks out of our safety net before we have something to take its place.

MR. MacNeil: Well, Dr. Kellermann, thank you very much for joining us.

DR. KELLERMANN: It's a pleasure. Thank you.

MS. WOODRUFF: Our series of conversations about what ails the American health system from the perspective of medical professionals continues all this week. We will talk to doctors across the country who suggest different cures, including planned rationing, HMO style care, national health insurance, and more. FINALLY - HISTORICAL ROOTS

MS. WOODRUFF: We close tonight with a remembrance of the Pulitzer Prize winning author, Alex Haley, who died today of a heart attack in Seattle. His book, "Roots," told the story of the black experience in America. It was an enormous best seller, with over 6 million hard cover copies sold, and was made into a television mini-series that was seen by 130 million viewers when it ran in 1977. In 1979, Haley spoke with PBS Talk Show Host Tony Brown. Haley described the storytelling that was part of his upbringing and which inspired him to write the book.

MR. HALEY: I don't recall ever having heard any of them talk about the story to other people, say like a church social, or you know, it was totally an in-family discussion. And interestingly, when they were together as a family group, they scarcely talked of much else. It was usually in the late -- in the evening, about as dusk would turn to night they would filter out of the house, these ladies who were in their mid to late forties, maybe a couple in their early fifties at that time, I'm four, five, you know, and they would take seats on the front porch in cane bottom rocking chairs and they would stoke up their lower lip with snuff, the way they used to do it in the South and kind of get in a few practice sessions. Aunt Liz was the champion. She could drop a lightning bug at six yards. And then they would start talking about the story of the family. Now, mind you, at this time, obviously a little kid, I didn't know. I had no comprehension really of the significance of what they were talking about, but I did have, I knew it was family, you know, just by the nature of what they were talking about, and I'd hear them speak of their parents, Tom Murray, a blacksmith, their father, and his wife, Irene, their mother, who had been slaves in somewhere called Alamans County, North Carolina, and then they were on the Murray plantation and all their names, their maiden names were Murray, you know, in the pattern that slaves, many of them took their surnames from the masters, and then there was a lot of talk about this very dramatic fellow who was just adventure himself. He was like a buccaneer of sorts. Although he was a slave, you never got the feeling he was enslaved. And they called him Chicken George. They loved to tell tales, of which there were many, about Chicken George. And then they told of his wife, Mathilde, who obviously was a very patient, forebearing Christian lady, and then they would talk of Chicken George's mother, a lady named Kizzie, whom I sort of knew went further back, and then I remember that these people of whom I have told you, they would speak of their mother as they might talk of biblical people, big biblical characters, but beyond Kizzie, they would speak of "the African." And whenever they spoke of him, it was rather as if he wa a being apart, there was something mystic almost about him. And they would tell about this African, how he had been brought on a ship to this country. So I left, I went to Africa. There I met the old man in the village of Jufaray, who told through interpreters the story about a family, Kintay family, which went back and back in Africa, about a man named Karaba Kuta Kintay, who had been a Maribou, a holy man, who had come into the Gambia, who had gone to three different villages, first to Packalinding, and then to Jiparong, and finally to Jufaray, where he took a wife whose name was Sirene, by whom he had a son named Omaro. And then he, no,he had two sons named Johnny and Saloon by Sirene, and then he took a second wife named Yisa, by whom he had the son named Omaro. And when the sons grew up, the first two went off and found a new village. The third, Omaro, took a wife named Mitakeba and Mitakeba had four sons whose names were Kunta, Laminz, Suadu, Madi. And then as the old man had stopped doing his long narrative time and again to tell this detail or that detail, he just spoke and said, about the time the king's soldiers came, the elders of these four sons, Kunta, went away from this village to chop wood and was never seen again, and he went on with his story. He had no way in the world to know that I had grown up in Henning, Tennessee, hearing Grandma Edli, all of them, talk about again and again the African name Kunta who always had said he was not far from his village chopping wood when he was captured. Man, it was goose pimple time, Tony. It was just incredible.

MS. WOODRUFF: Later in that interview, Haley described wrestling with how to tell the story he had uncovered as he sailed back across the ocean from Africa.

MR. HALEY: I was trying the best I could to recreate what was it really like. I'd read lots and lots of books about slavery. Most books that had anything to do with slave ships gave you an impression of the ship sails full, brisk wind, scudding along the ocean full of white caps and you kind of knew some people were down there. And I wanted readers to go down in that hole with the slaves for the first time, let's share. And I began to try to write that and I couldn't, man, I just couldn't get it write. And I would try to imagine I was Kunta Kinte, lying on my back, chained, sailing. It was ridiculous, obviously. He's on a cockle shell wooden ship. I'm in a steel freighter. But it was the best I could do. And the thing got to be such a trauma that I think it was the fourth night out I just couldn't make myself go back down in that hole and go through this whole sheer ridiculous thing, and I went instead -- see I was in the Coast Guard. Like I told you, I spent a lot of years on ship. I went on the fan tail, the stern, and I walked to the rail, put my hands up there, foot on the bottom rail, and I'm looking at the plume of white, the propellers beating up and a thought just came to me, all my troubles, the trauma what I'm trying to do, the ridiculousness, the debt I'm in, that I've incurred over the years, the just general mess I'm in, and I just thought there was one way to solve it all simply, just slide through the rail and drop in the sea. And it didn't frighten me. I felt, wow, how simple, and it was then I really had this experience like a dream. I began to hear voices speaking, no, you can't do that, you've got to go on, and I knew they were Kunta. They were Chicken George. They were all my ancestors. That was the experience. No big melodramatic thing. It was like a dream, and that was the night I felt I'd been tested and tried to go and try to finish "Roots." What I really was talking about perhaps writing was a book that would be in one sense the story of my family, but in a much, much greater sense, the simple saga of us as a people, the reason being that every single one of us has fundamentally the same ancestral pattern or background. Everyone ancestrally could be traced back or would be traced back to some African born, reared in some village, captured somehow, put into some slave ship, crossing the same ocean, into some succession of plantations up to the Civil War, the emancipation, and from that day to this day struggle for freedom in its various facets.

MS. WOODRUFF: Alex Haley was 70 years old. RECAP

MR. MacNeil: Again the main stories of this Monday, Dow Corning, the leading manufacturer of silicone breast implants, released documents showing it knew of safety problems with its implants more than 20 years ago. U.S. planes began an airlift of humanitarian aid to former Soviet republics. That's the NewsHour for tonight. I'm Robert MacNeil. Good night.