A collective legal battle

Individual legal action leads to collective litigation, 2015

The persons and organisations mobilised – whether they brought cases to court or not – are globally in agreement with regard to the dispute’s collective dimension, on two counts: individual cases acquire collective scope, and inherently collective cases maintain and extend the victims’ cause.
First of all, the interviews demonstrate that although cases and legal proceedings are individual in nature, the decision to take legal action is seen as supporting a collective social cause. Much like what has already been documented in studies on mobilisation, individual legal action seeks to produce a collective entity that on the one hand re-classifies the individual and on the other, links him or her with a group, thus “vascularizing” the social fabric.
Here is what two women, exposed to DES in utero, had to say:

Véronique: “I’m not fighting for myself. I’m fighting for jurisprudence, so that women who don’t have all the ‘opportunities’ that I’ve had, so to speak, can benefit from it.”

Laurence: “It has to be done: for us, to close the chapter, whether it’s mine or hers, and to help other people, out of solidarity with the group.”

It must be stipulated here that DES victims can only take legal recourse if they seek recognition and compensation for the harm incurred. The Oniam, or Office national d’indemnisation des accidents médicaux (National Office for the Compensation of Medical Accidents) only deals with medical accidents that occurred after September 2001, and to this day, there is no specific compensation fund set up for DES victims in France (unlike in the Netherlands, for instance). However, any form of individual involvement targets the already existing group of DES victims and has a knock-on effect when a case is tried successfully, thus expanding the group further. In fact, thanks to the complaints filed by certain victims, others have been able to identify the clinical problems they were suffering from and thus to “realise” that they were also “DES daughters”. One of the most significant observations of our study was that many women suffering from health problems discovered the source of those problems following media coverage of the legal dispute. The first case law “victories” and their unprecedented media coverage thus provided a new framework for these women to consider their experiences and give them meaning by fighting against injustice, rather than merely looking for mutual support. Out-of-court settlements with pharmaceutical laboratories are not uncommon, but they normally occur after a case has been brought to court. The publicising of the dispute was thus seen by the first plaintiffs as a means to break the silence and inertia of public authorities and the medical world. One of the first DES plaintiffs explains:

“It was a way of informing the public. I also knew about the experiences of Dutch women. It was because they worked to inform the public that other people came forth and testified. Same in the United States.”

It is possible here to identify certain processes described by Jean-François Laé on the capacity of victims to shift from the private to the public sphere and thus obtain social recognition, which in turn adds to the legitimacy of their claims. Two possibilities open up for those victims who, until now, have stayed in the shadows: on the one hand, they can finally escape serial misdiagnosis, receiving proper medical care from trained specialists, while on the other, they can emerge from social invisibility and demand accountability for their misfortunes. The first court rulings thus encouraged further recourse to the law.

In addition to these kinds of individual legal cases, a number of collective actions were envisioned and launched within DES-related organisations. These collective actions emerged from three different repertoires: information, peer support, and mass action.

From the 1990s, raising awareness and disseminating information were the main activities of support organisations, especially in the medical field. This repertoire of action came to include legal action in the 2000s. Thanks to meetings organised between victims and law professionals, many women came to realise their shared condition, as Gaëlle explains:

“We met X, a lawyer, who explained the lay of the land a little bit. […] It was like something clicked for me that day, all of sudden I just felt like ‘we’re in this together’. […] We felt supported. There was a certain contact established. […] All of a sudden, UCB Pharma realised that they were no longer the only ‘big’ player, so to speak. It’s that that’s a phenomenal achievement.”

Contrary to the widespread belief that victims are individualistic and focused on their own self-interest, even sometimes to the detriment of general public interest, here we see that victims work to create groups and establish a common good. Organisations also hold demonstrations in solidarity and support during court hearings and encourage people to be present when the verdicts are handed down. Since victims lack any real ability to express themselves in civil proceedings (only their representative is allowed to speak), these forms of solidarity seek to counter the isolation felt by plaintiffs when dealing with judicial institutions. In addition to this dimension of solidarity, one organisation – Les Filles DES – has also developed a strategy to circumvent the isolated nature of legal proceedings, by concentrating them in time and space. The organisation’s president explains:

“All of our case files are in Nanterre, so even if it’s not a collective case, it makes it feel like one. In 2009, we asked everyone to try to file a suit, so that all the complaints would be lodged on the same day.”

This tactic of grouping cases together had a significant impact on legal proceedings, as it forced the courts to deal with different cases at the same time and to present numerous rulings on the same day, which thus attracted the media’s attention and magnified the group’s presence in the public eye, as described above. As in other cases, legal action made an affected group suddenly visible by publicising a social issue. However, as a collective action strategy – unlike the choice to strike or protest – the choice to seek legal remedies should not be seen as an easy one: in reality, in addition to any complaint presented in court, legal action entails a lengthy series of intermediate operations and limits on which legal avenues to pursue.

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 teamgymshorts4.
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