It is difficult to identify a women’s health product that has not been targeted by mass tort litigation. Beginning in the United States in the 1970s, litigation concerning diethylstilbestrol (DES)—a synthetic estrogen substitute prescribed throughout the preceding two decades to pregnant women to prevent miscarriage—kicked off what would become nearly a half-century of mass tort litigation against women’s health products. This litigation is too often spurred on by sensationalized media coverage and a disproportionately male plaintiff’s bar that publicly extolls paternalistic David-versus-Goliath virtue while simultaneously herding women into the backchannels of a cloaked, well-financed litigation-building machine that encourages unnecessary medical care designed to increase verdicts and multiply a jury’s sympathy towards female plaintiffs.
Women’s health litigation is lucrative, turning women who have the appearance of sensitive injury into a hard-dollar asset —an asset that can be financed against, grown more valuable and ultimately publicly exposed—all in the name of “teaching companies a lesson” and triumph over industry. Plaintiff’s lawyers are depicted in literature and film as defenders of personal liberty and prosecutors of corporate greed. In 2015, though, lawyers spent $128 million to air 365,000 lawsuit advertisements against drug and medical device manufacturers. By 2017, these numbers increased by approximately 28 percent—lawyers spent $143 million on an estimated 467,000 ads. The plaintiff’s bar has become more sophisticated in creating the appearance of independence in their media and lobbying activity. For example, non-lawyer “experts” often work on complimentary publications to create the appearance of third-party concern. Other websites, such as legalexaminer.com, post sponsored content from member law firms that give the appearance of a legitimate news source.
But all of this obfuscates greater truths. The winners are not female plaintiffs; they are lawyers who take home the lion’s share of an award. And the losers are not pharmaceutical industry giants, they are all women.
Contingency fees make big advertising spend worthwhile. Such fees usually constitute 33 percent of the plaintiff’s recovery and 4 percent in mass tort cases, and this does not take into consideration that plaintiff’s lawyers skim their litigation costs off the top of an award before claiming 30-40 percent of the remainder. Such a fee structure incentivizes driving up “pain and suffering” damages by causing plaintiffs to incur unnecessary medical expenses as a way of increasing their fees.
At a macro level, opportunistic litigation against marketable women’s health products curtails available health care options—products developed for women are innovated and developed at a slower pace because of the extreme costs associated with near-certain litigation. And on a micro level, fear-driven attorney advertisements and one-sided news coverage precludes individuals from making informed, science-based healthcare decisions. “The onslaught of attorney ads has the potential to frighten patients and place fear between them and their doctor,” according to American Medical Association board member Russell W. H. Kridel. Dr. Kridel added, “By emphasizing side effects while ignoring the benefits or the fact that the medication is FDA approved, these ads jeopardize patient care. For many patients, stopping a prescribed medication is far more dangerous, and we need to be looking out for them.”