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France is experiencing a massive tort scandal after it was discovered thousands of women were given breast implants containing industrial silicone rather than medical silicone. We have seen in "Vassallo v. Baxter Healthcare Corp"., 696 N.E.2d 909 (Mass.1998), a court looked at the liability of one such company under an implied warranty of merchantability for failure to warn or provide instructions about risks.

The appellate court Defendant did have actual or constructive knowledge of such cases in the United States of faux doctors using industrial silicone purchased from auto and home repair stores. Nothing, however, comes close to the French scandal. Over 30,000 women in France (as well as some in Spain and the UK) may have had the defective products from Poly Implant Prosthesis (PIP).

The women are generally low income individuals, who (like the women in the United States) were attracted by the cheap cost of the cosmetic surgery.

PIP is one of the world's leading producers of the implants and reportedly saved €1 billion a year by using industrial silicone instead of medical-grade fillers. The company has now closed after women developed cancer and other illnesses. One surprising fact is that between 400,000 and 500,000 women in France have breast implants.

The cancer allegations raise a familiar question for American lawyers. For decades, courts have grappled with allegations that even medical-grade implants cause injuries. Recently, new questions were raised about U.S. companies failing to follow up on treatments. However, they have not been found to be dangerous or defective by the FDA, which has decided to keep them on the market. The matter remains remarkably muddled after decades with the risks still in heated debate. In Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909 (Mass.1998), a court looked at the liability of one such company under an implied warranty of merchantability for failure to warn or provide instructions about risks. The appellate court ruled the defendant did have actual or constructive knowledge of risks.

For the French, any lawsuit would raise the same factual causation question. There is no question that the implants are defective, but there remains the question of whether the company be held liable for the cancer based on currently available evidence.

It would seem that this is a case that should cross over into criminal liability as well as civil liability. In the horrific tainted blood scandal in France, a health minister was convicted after allowing companies to use known tainted supplies rather than discarding them - killing or injuring thousands.