In trying to decipher the implications of the $50 million settlement over Norplant, most of us are inclined to turn to the business press. But for a good take on what's really going on behind the curtain, you can't beat this month's issue of Glamour, which notes how trial lawyers are cynically using the issue to line their own pockets. The timing couldn't be better: Under the just-announced settlement, Norplant's parent company, American Home Products, will provide about $1,500 each to the roughly 40,000 women who filed suit. Though neither side is giving terms, you can bet that the lawyers who created the case out of nothing will go home with millions.
Norplant, of course, is the woman's long-term contraceptive and latest target of the gang at Ness Motley, the South Carolina firm last seen at the center of tobacco and breast implant litigation. Despite a winning record in the courts, American Home Products and its subsidiary, Wyeth-Ayerst Laboratories, recognized what the trial lawyers knew all along: at a certain point, it is cheaper just to buy the lawyers off. As Glamour puts it, "These lawsuits are bad news for all women."
On the surface Norplant is an unusual target for a product liability suit. Unlike tobacco makers or other victims of the trial lawyers who donate so heavily to the Democratic Party, Norplant has been a darling of Planned Parenthood and other such groups since it came on the market in 1992. But Norplant's high visibility, plus the deep pockets of its maker, apparently proved irresistible. The result was the usual witch's brew of publicity tactics and trying to flood the courts with cases in hopes of wrangling a settlement. As Glamour dryly remarks, the lawyers got their idea from a story on Connie Chung's NBC infotainment hour about problems women had when removing the under-the-skin contraceptive implant.
Once they had missile lock, the next idea was to charge Norplant with the same imagined sins as breast implants--i.e., causing autoimmune disease. But the science didn't float. So rather than throw Norplant back, they claimed women were suffering a variety of ailments like bloating and weight gain that they hadn't been warned about. In a deposition, one of the plaintiff women even offered that, as Wyeth-Ayerst's defense attorney put it, "About once a month for about an hour she would feel sad when she could be happy."
Never mind that these are all well-known side effects of contraceptives. As the magazine noted, "When these types of cases get going, it doesn't much matter if the product is safe or not." The search for symptoms becomes self-fulfilling as fears are whipped up. Two months after removing Norplant on schedule, one woman told the magazine, she "received a mysterious series of letters from a lawyer about Norplant side effects. Suddenly she thought she had experienced weight gain and a 'little bit' of nausea and vomiting for about a week after going on Norplant. So she called the lawyer and filed a claim."
Roused in defense of a product presumably indispensable to the Glamour girl, the magazine bit down. Of the roughly 40,000 women recruited for the lawsuit, many had never complained to their doctors about any symptoms. It reports further that some of those who stand to collect their $1,500 piece of the $50 million settlement are still using Norplant and recommending it to their friends. One of the women named as a plaintiff "told Glamour she never even thought about suing until she got the lawyer's letters. Even today she is still using Norplant."
But none of this matters. The point was to create enough of a sideshow to persuade the company to settle. And now they have. In Britain in March, a similar case succeeded in getting Norplant pulled off the shelves. The product's British distributor, Hoechst Marion Roussel, was quoted blaming an "unholy alliance of bureaucrats, lawyers and media." Such is the pressure, however, that the just-announced U.S. settlement was reached despite Norplant's victories in the courts: three jury verdicts, 20 pretrial judgments and the dismissal of 14,000 claims by lawyers. As one female jury member in a Texas case said of one of the plaintiffs, "It was like she just wanted to hit the Lotto."
Perhaps the Glamour article will lead to a new awakening. All too often Democratic constituencies have made themselves scarce during the tort reform battles because they didn't like the targeted products and enjoyed sharing in the booty through kickback contributions. As the attack on Norplant demonstrates, however, the trial bar's only loyalty is to its bank accounts. We hope someone thinks to ask Al Gore and Bill Bradley about the assault on Norplant. In the meantime it's nice to add some Glamour to the fight for tort reform.
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