Civil courts as the preferred choice

Individual lawsuits combine to form “DES litigation”, 2015

The search for accountability could have involved any one of the three major branches of the law: administrative, criminal or civil. From the perspective of positive law, choosing administrative law would mean looking for responsible parties among the public authorities, for example the civil servants working in pharmacovigilance and post-marketing surveillance, or the political personnel responsible for approving the drug. Choosing civil law, on the other hand, would a priori entail interpreting cases in terms of accidents requiring individual reparations, in the form of compensation for the harm suffered from the liable parties, be they legal or natural persons. Finally, pursuing a case under criminal law would entail identifying a serious legal transgression for which the guilty party or parties must be punished. Criminal law has extensive powers of inquiry and is better suited to demonstrate the serial and collective nature of catastrophes. However, as legal sociology has clearly shown the myriad ways that trials are exploited, as well as the flexibility of legal mechanisms when dealing with demands for compensation, it is therefore necessary to thoroughly contextualise the procedural choices made in this situation.

In the case of DES, recourse to administrative law was immediately eliminated as an option. The state’s responsibility and its negligence in terms of pharmacovigilance could have been examined in court, especially for victims exposed after the warning issued in 1971 and the contraindication issued in the United States. And yet no complaint seems to have been brought before an administrative court. Some victims have explained that although they believed the authorities were responsible, given the existing configuration of administrative law and the legal tools available, pursuing an administrative lawsuit would have been a lost cause.

Hhorages was the only group to consider criminal responsibility as a possibility. The organisation and ten of its members presented themselves as parties civiles to criminal proceedings in 2006, leading to a new formal investigation by the public health centre of the Tribunal de grande instance de Paris (the High Court of Paris). For Hhorages, the main advantage of a criminal suit was that it provided broader powers of investigation, allowing for the production of expertise that would identify the different responsible parties. Instead of a large number of complaints, it was therefore essential for the organisation to present a handful of “good cases” on the psychiatric effects of DES in order to help the judge conduct the investigation successfully. It was immediately assumed that the inquiry period would be a very lengthy one, so the organisation focused on obtaining new scientific knowledge regarding exposure to hormones that would convince the judge, as well as public health decision-makers. The organisation thus explicitly developed a strategy of “winning through losing”, with the inquiry and trial process ultimately designed to further the cause outside of the courtroom.

At the same time, however, victims have overwhelmingly sought to assign civil liability since the very first cases filed. The choice to engage in civil proceedings was based on a strategic evaluation undertaken by victims and their lawyers. After the 2000 law on involuntary offences was passed in France, it became evident that the chances of bringing a criminal case to court were almost non-existent, even though over the course of the previous decade, criminal courts had been used to examine responsibility in a number of major public health scandals. The first rulings produced in civil courts marked a number of victories for DES victims and were widely discussed in the media. This visibility became even greater when the rulings were confirmed by various appellate courts and the Court of Cassation. Publicity prompted a new series of lawsuits: after each victory, organisations and lawyers would receive numerous requests for information and support for future legal actions. This move towards greater collectivisation was so significant that in 2012, Hhorages and its lawyer expressed their wish to couple their criminal proceedings with civil suits, a choice which had been encouraged from the beginning by Réseau DES and Les Filles DES.

Although a collective cause was gradually established as legal victories were discussed in the public sphere, the experience of going through a civil suit was nonetheless highly unstructured and isolating for each of the plaintiffs involved. Civil proceedings could ultimately be as long as criminal ones, and they were less predictable or visible. In fact, experts were almost always challenged with regard to their impartiality and qualifications, sometimes leading to rulings that went all the way to the Court of Cassation before the facts of a case were even dealt with in a court of first instance. Victims had a profoundly disjointed experience of legal time: for months, cases would stand still, hearings would be postponed, expertise delayed. Legal council was received sporadically, outside of a trial’s activation periods. It was also an expensive process, in particular because victims had to pay the experts. While victims are allowed to ask the opposing party for provisions to cover the costs involved, this requires new legal action, which further delays a case, especially as the demand is often challenged.

Each victim is therefore stuck in a tunnel, the light at the end of which s/he cannot see, thus preventing any collective experience from emerging out of the process of criminal inquiry. Moreover, victims do not get to experience a wide-lens view of the trial and see all the relevant actors involved. On the contrary, they sit through hearings where they are never allowed to speak, and are then, after a delay, informed of decisions via their lawyers, without any courtroom formality. As a result, victims are sometimes advised to not attend the court sessions, as Évelyne recounts:

“I never sat in on the ‘minor hearings’, so to speak, where we were all going to be packed in together, because my lawyer said ‘there’s no point, don’t trouble yourself, you’d be there for five minutes at the most’”.

The disconnect between the collective cause progressively created by the build-up of cases and the isolation experienced by individual civil parties makes the role of support organisations and cause lawyers essential, as they provide victims with some degree of legal awareness. This awareness notably grew out of victims’ tendency to attribute responsibility for their predicament to pharmaceutical laboratories.

References

  • Abstract from “From Individual Redress to the Development of a Collective Cause: The Legal Mobilisation of Victims of DES”, Revue française de science politique (English Edition), Pages 583 – 607, 2015/4.
  • Image credit winnipegsun.
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