United States: Women's Health Litigation Conference

No television show gives its viewers more than Game of Thrones – more characters, more plot-lines, more sex, more violence, and more magic. The enormous production values scream from the screen. The frame cannot quite contain flapping dragon wings and exploding wildfire. The stories blend fantasy with The War of the Roses and Highland intrigues. The recently concluded season rendered more fan service than ever, rewarding beloved characters and clearing the deck of some of the more disagreeable or wearisome ones. The show-runners concluded the latest chapter with [spoiler alert] women in the clear ascendancy. A queen sits on the Iron Throne, another queen now commands a vast fleet chaperoned by the aforementioned dragons, and the newly-crowned King of the North owes his crown to his half-sister (or is she his cousin?). It is hard to consider GoT's gender politics whilst being oblivious to similar rumblings in the real world. David Brooks, a New York Times columnist usually labeled as a conservative (though, this year, who knows what that really means?) observes that many male politicians around the globe are now coming off as incompetent and unhinged, and "many voters seem to be flocking to tough, no-nonsense women who at least seem sensible" such as "Angela Merkel, Hillary Clinton and, now, Conservative Party front-runner, Theresa May." In a recent New Yorker article, Jill Lepore describes how America's current political landscape owes much to a long-term migration of women voters from one political party to the other. If one looked for a gender gap prior to World War 2, one would have seen women favoring the GOP by a substantial margin. Why that gender gap flipped is a narrative almost as dramatic as any of the doings in Westeros, and certainly a good deal more, um, real.

There was a different narrative at last month's Women's Health Litigation Conference. The conference was held at the Beverly Wilshire, where the film Pretty Woman was filmed. With raised eyebrows (not to say we were supercilious), we saw that the hotel offered a "Pretty Woman for a Day package." One could stay in the suite where filming took place, shop on Rodeo Drive, glide in a Rolls Royce to a shoeless picnic, and enjoy a date night at the opera. Would there be a fairy tale ending? Well, that's up to you, isn't it? We did not avail ourselves of this marvelous offer. Instead, we listened to the lawyers and took notes.

We were among the very few defense attorneys present. The conference had been set up by plaintiff lawyers. Most, but not all, of those plaintiff attorneys were women. They are extraordinarily capable attorneys, having achieved significant successes in MDLs and trials. They were also unfailingly courteous and generous during the conference. We learned a few things. You might even find some of them interesting. We used the word "narrative" above, and the word is used advisedly. The Women's Health Litigation Conference addressed several of the recent and current litigations regarding women's products, such as vaginal mesh, Essure, and talc, but there truly was a narrative binding the topics together. The first talk was entitled "Why are Women Used as Guinea Pigs and What to do when the Next Women's Health Tragedy Occurs." Here is the story arc:

  • Some products sold to both men and women have different effects. For example, acetaminophen is absorbed more slowly by women.
  • Women are underrepresented in clinical trials.
  • Drugs and devices aimed at women are often life-style, rather than life-saving, products.
  • The marketing of women's health products often involves an effort to exploit insecurities. (SSRIs were alluded to as an example.)

The last point was reinforced later in the conference by a presentation (entitled "Profits over Safety: Targeting Women to Sell Drugs, Devices, and 'Diseases'") analyzing old advertisements that, in the way that is often the case with old ads, managed simultaneously to amuse and horrify.

It is a potentially powerful narrative. To be sure, any defense lawyer worth his or her salt will move to preclude such a narrative, arguing that THIS case is about THIS product, and any broader narrative would be prejudicial. Stay awake, this narrative is coming. Start drafting your motion in limine.

What else is coming? Besides more talc litigation, we got a preview of "Emerging Litigation in Mass Torts," involving follicular stimulants, fertility drugs, breast cancer drugs, FLQs (antibiotics), and certain products that promise to make your hair full and lustrous, but might actually make it fall out (allegedly). There was discussion about what sorts of cases would be especially strong for plaintiffs (you can guess) and which jurisdictions had good or bad preemption law (if you cannot guess, just ask us). Further, you could do worse than look at the womenshealth.gov website to get a sense for current events in this area .

The Women's Health Litigation Conference was interesting and well-done. These plaintiff lawyers put together a good conference. They are well-organized. They demonstrated detailed analyses and effective story-telling. In a manner typical of good plaintiff lawyers, one lawyer shared a description of some of her morcellator plaintiffs. It was completely arresting. Not only is the narrative powerful, but so are the narrators.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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