The legal mobilisation of victims of DES, 2015
Our analysis of legal mobilisation illustrates a two-fold relationship to the law. On the one hand, individuals experience lengthy and uncertain court proceedings, where as victims they are merely “one shotters” in the courtroom; on the other hand, a collective dispute is created by the accumulation of “repeated players”. We have likewise shown that legal recourse is structured by various judicial operations and timelines: the submission of claims, trials and rulings do not all produce equal or homogenous effects.
The decision to file a lawsuit is dependent on an individual or group’s trajectory, and includes personal, activist, familial, medical and professional dimensions. While victims and support organisations often present this decision as a complex cost-benefit analysis that balances individual and collective expectations, it is less a rational calculation than a projected commitment over time, at the expense of any involvement in the action. In fact, in the case of DES, extremely lengthy, procedural and technical judicial work has been undertaken by legal professionals. Trials themselves happen at a certain remove from victims. During hearings, victims are merely spectators, observing lawyers from both sides. Rulings are handed down in an indirect fashion, transmitted from the judge or court clerk to the lawyers; in addition, rulings remain highly individual. Even if legal recourse is seen by some plaintiffs as activism, their experience remains profoundly different from that described in the existing research on social movements, which systematically links individual commitment and action.
Nonetheless, judges have helped to unify the victim’s movement, in particular by favouring the use of certain courts: almost all DES cases have been dealt with by the Nanterre Tribunal de Grande Instance or the Versailles Court of Appeals. Thanks to the DES legal dispute, judges have over the years acquired specific expertise with regard to innovations in case law on defective product liability. This dispute has created feedback loops on individuals and organisations, and how these are mobilised. In addition to the work conducted by judges, the efforts of the lawyers and organisations involved have also been crucial for capitalising on judicial gains and giving new meaning to victims’ fragmented experiences, sharing experiences, establishing ties with external actors, and engaging in political work outside of the courtroom.
An almost unanimous consensus exists with regard to forcing the courts to recognise DES victims, expressed even by individuals who do not take legal action but support those who do. This demand for recognition, visible in all areas of social life, is channelled towards the courts, where victims hope to make their stories heard. It is the legal institution which has enabled a social and public health issue to be objectivised, with jurisprudential rulings reinforcing victims’ status as “legal subjects”. In the case of DES, recognition is especially demanded as a form of compensation, since the medical sphere exacerbated the problem by not providing adequate follow-up care, and even in some cases by denying the causal role of DES. As seen above, the sensitivity of victims to the injustices they have suffered – as well as the group of people who can be classified as victims – have evolved over time and in response to the rulings handed down. However, once their misfortunes have been recognised, victims are far from agreeing on what political significance should be ascribed to their legal victories. They diverge on the scope of the rulings and on the amount of publicity that their cases should receive.
With regard to both of these issues, objections to getting involved in legal proceedings can sometimes emerge after the fact. The president of Réseau DES frequently emphasises the need to keep one’s public and private lives separate; personally speaking, she never presents herself as the mother of a victim. The political scope of precedent-setting decisions for DES victims – and more generally, for victims of any medical drug or other defective product – is somewhat attenuated in favour of resolving a number of particularly dramatic individual cases, using an “instrumental approach” to the law. While the organisation does not skimp on providing support to all victims, unique cases are systematically emphasised, and the victories won are always those of individual victims, rather than of DES victims as a whole. The caution with which victims treat legal recourse also applies to publicity, as the media is always suspected of lacking accuracy in its quest for sensational headlines. Instead, Les Filles DES and Hhorages take a “political approach” to the law, which they see as an instrument of publicity in service of a cause, through the provision of individual testimonies and intimate accounts of the harm suffered. The president of Les Filles DES, for example, published an autobiography. It is apparent that engagement in legal proceedings and the pursuit of positive case law for victims’ rights can take a variety of different forms. However, there are three other kinds of political mobilisation that are generally accepted by consensus.
The first form of political action targets the implementation of social policies in favour of DES victims. Despite the fact that demands of this kind have been made since the end of the 1980s, it was only in the 2000s that political leaders began to pay attention. It was in large part due to the parliamentary work done by Jean-Pierre Sueur, a Socialist Party senator from the Loiret region, that a special maternity leave provision was created for DES daughters (it was established with a law in 2005, followed by two decrees in 2006 and 2010, for private and public sector employees respectively).
The second political struggle has targeted the creation of a victim compensation fund. This idea remained in the shadows for a long time, until the Mediator scandal brought it into the spotlight in 2010: DES then emerged as a precedent for a number of other drugs having very long-term deleterious effects and whose victims had largely been overlooked by public authorities, both in terms of pharmacovigilance and appropriate follow-up care. An alliance between Irène Frachon – the whistle-blower in the Mediator case, which was widely legitimised in the political arena after 2011 – and the president of Les Filles DES led to the organisation of two colloquia at the National Assembly, in 2011 and 2015 respectively, as well as the participation of two DES support organisations in the annual research summit on drugs, the Assises du Médicament, in 2011. Mediator victims were able to benefit from an ad hoc compensation fund, created outside of the general Oniam regime, in accordance with the law on patients’ rights passed unanimously in the National Assembly on 4 March 2002. For now, however, general provisions for medication victims or specific provisions for DES victims have not yet been established, unlike in the Netherlands, where a DES compensation fund was created in 2007.
The third form of political mobilisation supports the use of “class action” lawsuits for issues of public health. Although, after several unsuccessful attempts, this innovative form of legal recourse was introduced in the 2014 Consumer Law, bodily injuries were excluded from its purview, despite prior lobbying performed by support and advocacy organisations and the parliamentary Green group, EELV. In the context of another scandal caused by thirdgeneration birth control pills, Benoît Hamon, the government’s spokesperson at the time, announced that the provision would be expanded in a public health law proposal. In May 2015, following a fairly consensual debate, a clause was adopted concerning “class action” lawsuits for bodily harm resulting from health products. This law was passed in January 2016. How it will be applied in potential future decrees remains to be seen. If class action lawsuits are accepted, they will doubtless help to unify legal proceedings and break victims out of their aforementioned isolation. However, as was stated during the 2013 parliamentary debates, both expertise and compensation will likely force the courts to look at individual cases at various stages of the proceedings – precisely those stages which victims have identified as the hardest to endure.
With regard to research on judicialization, our work confirms the effects of politicisation in the law and by the law, but these effects are neither clear-cut nor linear, playing out in different ways over the long term, as has been analysed by Jacques Commaille and Laurence Dumoulin. It is certain that the case of DES has been politicised via experience with judicial remedies and the subsequent political use of repeated legal victories on the matter. The law has undeniably transformed the cause by producing new groups of victims and by establishing a sole entity responsible for all DES harm: pharmaceutical companies, condemned as a whole. Nonetheless, it has also given greater visibility to the DES cause, lessening its singularity and thus, ultimately, paving the way for it to become incorporated into the development of public policies. While the role of support and advocacy organisations has been widely documented in the push to democratise health care, this role has largely been limited to launching public appeals or legislative lobbying. As for DES victims, they have first and foremost helped to establish new rights through precedent-setting case law. Nevertheless, we should not be fooled into thinking that the courts are all-powerful. The jurisprudence adopted in 2006 imposed a duty of vigilance on pharmaceutical laboratories that could theoretically be applied to other companies as well. And yet, to our knowledge, this jurisprudence has not benefited any other victims of industrial products, despite the emergence of multiple medical and environmental scandals. Outside of individual cases, the political scope of court rulings therefore remains out of the control of civil judges.
- 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 bristol.ac.uk.