Individual lawsuits combine to form “DES litigation”, 2015
Victims have exclusively directed their complaints against pharmaceutical laboratories, which has allowed for a DES legal dispute to develop on the basis of defective product liability. This apparent unanimity stemmed from a number of different reasons, however. Some victims acted against the pharmaceutical companies for strategic legal reasons, while remaining convinced that the laboratories were not the only responsible parties. These plaintiffs circumscribed responsibility in order to have a better chance of winning their case, in particular because they knew that the companies were financially solvent (unlike some doctors, for instance). These victims did not exclude other potentially responsible parties, but they believed that the justice system was not equipped to deal with the latter appropriately. One advocacy organiser specialising in litigation issues expressed the reservations felt by many victims:
“Three things. From a tactical standpoint, information comes [from doctors], so generally speaking, it’s better to take care of them… Second, to me it seems rather complicated and anachronistic to go and criticise a doctor who practised in the 1960s for not having respected an indication that appeared during the 1990s and 2000s. The point is […] that we’d have to prove that, at the time, both collectively and individually, Doctor So-and-So in the middle of nowhere was aware of the fact that DES was harmful to one’s health.”
And yet, prescriptions issued after 1971, and especially those issued after the contra-indication against use of DES in pregnant women was published in France in 1977, could likewise motivate lawsuits against the prescribing doctors. Here as well we can see patients’ indulgence for their doctors and their professional limitations, including a certain degree of ignorance, which is not seen as inherently culpable even when it is considerable. The gynaecologists and general practitioners who prescribed the drug were duped just like the mothers who were their patients. As we heard over and over in the context of our study: “He prescribed it in good faith”. Throughout our corpus, the belief that public health institutions and the medical profession are inherently good is repeated time and time again, while blame is placed on the pharmaceutical industry’s greed. Marie states this clearly:
“As victims, we’re not against the medical body, on the contrary. We’re against the pharmaceutical labs.”
While the occasional refusal of doctors and pharmacists to provide the original scripts or to release patient files – necessary pieces of evidence – provoked moral outrage, these actions did not lead to lawsuits against medical professionals. Some DES daughters have argued that instead of going after the prescribing physicians, lawsuits should target those who wilfully maintained the status quo of ignorance and silence, thus depriving victims of adequate medical care and at times sending them on a diagnostic wild goose chase with adverse effects. Most of the victims surveyed believed that responsibility lay solely with the pharmaceutical companies and that civil proceedings provided the best tools for the imposition of liability. UCB Pharma and Novartis were thus reduced to purely economic and profit-driven entities, devoid of any moral standards or concerns for public health. Sophie explains:
“The labs made tons of money even though they were entirely aware of the molecule’s effects.”
Similarly, Anne declares:
“It’s David and Goliath, the pharmaceutical companies are the ones who stuffed their pockets with cash. […] For them, it was a tiny group of people who might be affected, and who wouldn’t fight against UCB. For them, it was a question of ‘what’s the importance of 150,000 people anyways?’”
Much like in the case of farmers who became pesticide victims, the conviction that responsibility lay solely with the companies involved was strengthened over time, in particular through victims’ confrontation with defence attorneys, who systematically challenged the pieces of evidence presented by the plaintiffs and downplayed their misfortunes.
This conviction was also reinforced by the judges’ rulings, which established an overwhelming amount of case law against pharmaceutical laboratories on the basis of defective product liability. Judges first ruled that the children of women having taken DES could be considered as a party to the contract between a laboratory and its client. They then turned to the question of knowledge regarding the drugs’ deleterious effects; to this end, judges asked for a general adversarial appraisal from the beginning. This was conducted in 1994 by a multidisciplinary panel. Responding to the judges’ questions concerning the studies “that UCB would reasonably have been expected to know […] and which would have justified different behaviour than that illustrated in the company’s continuing distribution of DES”, they compiled and analysed the literature on DES and its effects. In their conclusions, the appraisers established two separate timelines. After Dr Herbst’s publication on clear-cell adenocarcinoma (CCA) in 1971 and the contra-indication of DES in the United States, the appraisers believed that UCB Pharma should “have been aware of this data and [should not] have maintained the distribution of DES for use in pregnant women”. Before that time, however, the existing research was described as contradictory, which could have explained why UCB Pharma maintained “the distribution of DES for its use during pregnancy”. Nonetheless, while judges in courts of both first and second instance relied on the data provided in this report, they ultimately reached a different conclusion, ruling that there was “a duty of vigilance” according to which the company had “committed a series of offences by not monitoring the effectiveness of the litigious product, especially given the warnings contained in the medico-scientific research, specifically in 1939 and 1962-63”.
After the Court of Cassation upheld this ruling in 2006, the duty of vigilance required in the case of clear-cell adenocarcinoma established a precedent for all DES victims, regardless of their birth year, even though the laboratories would continue to challenge the legal basis for other afflictions. By defining a very broad scope of responsibility, judges made this legal channel even more appealing for victims, making a secondary search for liability among prescribing physicians or public authorities superfluous. In addition, this ruling helped to unify victims by creating a shared sense of legitimacy behind their demands for compensation.
- 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.