Individual constraints on legal action

Individual legal action leads to collective litigation, 2015

Measuring the global extent to which victims have involved the courts is impossible for three different reasons.

  1. First, among the exposed populations, many do not know their status.
  2. Second, unlike in criminal proceedings, the plaintiffs here are not enumerated in a single review procedure.
  3. And third, the absence of an integrated legal aid division in the organisations studied means we do not have access to a complete list of the legal actions taken.

As a result, we must base our analysis on two indirect indices: our sample, which includes 18 plaintiffs (out of 77 interviewees); and the specialised lawyer who reported in 2013 that she had 400 open cases (out of 160,000 individuals exposed to DES in the womb). We must therefore seek to understand the apparent rarity of suits filed and the constraints that weigh on both individual and collective action.

Although many individuals know the source of their illness, not all of them recognise themselves in the identity of collective victim. A small number of women in our corpus preferred to see their health problems as the luck of the draw, illnesses that could have been caused by a genetic predisposition or spontaneous malformation. Such women thus immediately eliminated the question of responsibility from their minds, as well as any notion of victimhood. These women were neither for nor against legal action: they merely did not feel personally concerned. With regard to the remaining women, we identified the individual constraints on legal action that explained why large numbers had not turned to the courts.

In fact, the success of some victims in the legal arena should not mask the limits of a legal system that places the burden of responsibility for identifying the harm suffered and for filing a claim on victims, consequently leaving invisible in the shadows a sizeable number of individuals who have suffered harm. However, very few studies have looked at the factors that drive people to take legal action (or not) in personal injury cases. In the case of DES, we have identified three crucial factors that explain why so few lawsuits have been brought to court.

First of all, we must not overlook the general difficulties involved with taking legal action when one is not already familiar with the workings of the legal universe. Nor should we ignore the limits of a model of legal protection in which the law offers victims effective tools to seek redress and compel offenders to conform to current social norms. These difficulties are compounded in medical cases, where significant asymmetry exists between the victim and the accused; this is even more so the case with DES, as the pharmaceutical companies have ample experience with the law, integrated legal divisions, and significant financial capacities that theoretically give them the best chances of winning in court. Interviews thus revealed that while legal action was indeed a tool for some victims, it was a difficult one to wield; its material and symbolic costs were a powerful disincentive, as one organiser for Réseau DES explains:

“What we try to tell daughters is that you have to assess the situation. But even for those who have had cancer, I think that they need to evaluate what they’re hoping to get out of the process, because it’s a lengthy ordeal, it’s difficult. […] For those young women who had difficult pregnancies but who managed to ultimately have a child, we are more likely to say, ‘Think about the time, the money that you’re going to have to front, the time that you are going to have to spend on the case, are you ready to do all that?’”

It is possible to draw a parallel here with American socio-legal studies on the relationship between the law and the processes of social exclusion, especially with regard to the victims of discrimination. The gendered dimension of exclusion is particularly evident here, as DES victims are first, and primarily, women. These women are more willing to call themselves “survivors” than “victims” because they fear the psychological andmaterial cost of filing a complaint, as well as their poor likelihood of winning. They therefore bank on their ability to deal with adversity rather than on any potential compensation the system might deign to award them.

Secondly, and more specifically, many of the individuals who were exposed to DES gloss over the various health problems they have suffered, their severity weakened in light of the graver misfortunes that could potentially have happened (clear cell carcinoma, the death of a premature child, permanent infertility, etc.). Speaking about her second son, born full-term and in good health, while her first had been born very premature, Isabelle describes a “normal” pregnancy, then adds: “normal, but bedridden all the same”. This mitigation of hardship is further reinforced when victims share medical experiences, thus realising the greater severity of damages suffered by others. Consequently, this same DES daughter describes her ectopic pregnancy, as a result of which she lost a fallopian tube, as follows:

“Ultimately, I was happy to have done it, because I told myself ‘I can do it!’ […] Compared to other women, it wasn’t catastrophic…”

Caroline, who suffered a series of late-term miscarriages, as well as medically assisted fertility treatments for over fifteen difficult years, a divorce that she attributes directly to those problems, and finally a completely bedridden pregnancy, nonetheless says that she is “privileged”. Going against the current rhetoric criticising a “society of victims” always ready to litigate, our interviews show that many actors are perfectly capable of bearing the injustice. One organiser for Filles DES explains the situation:

“There are some women who say, ‘but I’m not enough of a victim’, so obviously they don’t feel that their case is representative enough.”

The comparisons engendered by membership in various support and advocacy organisations, as well as the sharing of personal experiences, can in reality act as a disincentive to taking legal action.

The history of the DES legal dispute also introduced a hierarchy of harm and created divisions among victims. The role of the first few cases was ambiguous in this sense: they established precedents and encouraged other women to come forward; but at the same time, however, the first complaints were also filed by women who had suffered very serious cancers – some of the women even died before the end of their trial. These first legal disputes therefore also acted as a disincentive by persuading some victims that the harm they had suffered was not severe enough to seek redress, thus preventing a snowball effect.

Thirdly, the unique social and family history of DES undeniably contributed to this phenomenon. Calling oneself a victim entailed recognising that the harm had been caused by medication taken by one’s mother or grandmother. As a result, those who were exposed to DES in the womb are sometimes reluctant to announce it publicly, as one organiser for Filles DES explains:

“We have a hard time getting people to tell their story. It’s because DES daughters are afraid to testify as such. For some of them, […] they don’t want to make their mothers feel guilty. Even in terms of filing a complaint, they tell me that they don’t want to do it, because they don’t want to make their mother feel guilty.”

This process has also been documented in studies on illness and disability: when a society does not recognise a public health problem, the victims of this problem become a nuisance and are ultimately forced to accept responsibility for their own misfortunes. In our study, mothers frequently reported feeling guilty for having taken DES, even though they were prescribed the drug by their physicians. DES daughters expressed guilt at not having been able to give birth to a healthy child, even though many suffered from deformities over which they had no control. Some DES daughters even felt guilt about the children they did manage to have, once they discovered that the drug had third-generation adverse effects.

Due to a lack of publicly assumed responsibility for the defective product, the trans-generational nature of the pathologies associated with DES contributed even further to the interfamily circulation of feelings of guilt. Despite the fact that this familial – and thus inherently collective – dimension might be seen as an incentive to taking legal action, it often instead serves to limit legal action, even when victims view such action positively. Patricia, the mother of two daughters who were exposed in utero and who have not filed any complaints, despite suffering from significant gynaecological and obstetric problems, explains her situation as follows:

“It’s true that every court case advances justice a little bit more. You do it for yourself, but not just for yourself. But the price that you have to pay – being suspected, being questioned by experts, etc., – I would never push my daughters to do that.”

This last interview excerpt is emblematic of the quasi-unanimous support that exists for legal action, expressed even by those who do not seek legal recourse themselves. The limited number of cases tried in court does not therefore signify that the plaintiffs are a litigious minority looking for someone to blame, nor does it prove that a silent majority attributes the harm suffered to the vicissitudes of life. Prior studies have shown that many victims delegate legal action to figures that they support from a distance: consequently, without having to litigate individually, they are collectively involved in the legal arena in a variety of different ways.

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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