Different modes of litigation

Addressing a public health issue from a legal perspective, 2015

In order to understand the legal action taken by DES victims, three complementary research strategies were employed. We examined the individual trajectories of victims, described the legal policies of different DES-related organisations, and analysed the case law established by appellate courts and the Court of Cassation. These strategies allowed us to combine material produced in the field of positive law and material regarding the “legal awareness” of ordinary litigants, victims and their associations. The law can thus be analysed as a social practice, one that simultaneously takes into account its social uses and effects. In this, we follow in the footsteps of the work first carried out in France by the Centre universitaire de recherches sur l’action publique et le politique (CURAPP – University Research Centre on Public Action and Politics).

Individual stories were collected via lengthy, semi-structured qualitative interviews conducted with 77 individuals affected by DES (17 mothers, 3 fathers, 48 daughters, 2 sons, 4 spouses of DES daughters, 3 siblings of DES daughters). All aspects of their personal lives were addressed: their medical history and past interventions, their conjugal and familial situation, their career path, etc. The legal dimension, which is the only facet addressed in this article, was studied particularly closely for the 18 respondents who had filed a suit, but was nonetheless important for all the individuals interviewed, whether they had supported other victims through a legal process, considered taking legal recourse, or ultimately rejected the idea of taking action. In order to further nuance the results, observations were carried out during the hearings of Nanterre’s district court, the jurisdiction that has dealt with the quasi-totality of DES cases in the first instance court.

In order to understand the legal policies of DES-related organisations, we drew on interviews with organisation leaders, observations conducted during meetings, and an analysis of organisation archives and information bulletins. Even if these associations were not originally formed as victims’ groups, they all identify a drug and its wrongful administration as the cause of harm suffered. While they have not yet developed a full-fledged legal division, as workers’ rights organisations have done, these associations have nonetheless become a sort of collective laboratory for legal strategies. Although members from France’s Réseau DES filed the first suits, the association generally maintains a very prudent stance towards the courts. Hoping to prevent women from launching into doomed legal proceedings, in 2011 Réseau DES partnered with the FNATH: lawyers from the FNATH now evaluate case files prior to legal proceedings being instigated, in exchange for a relatively modest flat fee. At the other end of the spectrum, however, Les Filles DES has encouraged legal action, establishing a privileged relationship with one lawyer who has been involved in DES cases for over twenty years. The group organises meetings with this lawyer in order to encourage victims to take legal action. Finally, Hhorages is the only one of the three organisations to promote criminal proceedings. All of their cases are handled by a criminal lawyer, known for representing the victims of various public health scandals. Moreover, the organisation, as well as some its members, have acted as parties civiles in a criminal case. Although the organisations’ different positions with regard to the law are relatively clear-cut, victims, on the other hand, seem to circulate freely from one organisation to another, whether in search of information, experience sharing, supporting other victims, or raising awareness about court rulings.

Finally, our analysis of the existing jurisprudence is based on the rulings of appellate courts and the Court of Cassation found in the Jurica, Lexbase and Dalloz databases, to which were added trial court decisions in the first instance found in local court registries. First instance rulings that did not lead to any appeals remain largely unknown, as they are only available upon individual request to court registries with the citation of the relevant case number.

With the help of a legal expert, we first observed the legal avenues used by the different parties, the types of evidence presented (scientific research, medical expertise, personal accounts, archives), the list of damages to be compensated (or those absent from the list), and the list of victims (and whether spouses, direct ancestors or descendants were included or not). We then analysed how these elements were received by the courts and measured the impact of case law – widely commented on in doctrinal literature as well as the media in general – on subsequent cases.

Sociological research on legal action is often linked either to the work of professionals qualified to produce law, or to the relationships that victims entertain with the law. By using these different sources, we suggest jointly analysing the engagement of victims and the creation of a DES legal dispute that has transformed victims’ rights over time.

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 .wmhlaw.
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