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Sexual History on Trial in Yaz Litigation

Sexual History on Trial in Yaz Litigation

Typically when we discuss a bias in the law against women we do so in terms of historical discrimination or preferences that reinforce cultural stereotypes of women as preferential caregivers.  However, gendered bias in the law runs far deeper, and as one case in Philadelphia illustrates, there appears to be only one remedy: judicial parity.

Defense lawyers in the mass tort litigation involving the hormonal birth-control Yaz asked permission from the Philadelphia Common Pleas Court to ask plaintiffs about their comprehensive, non-hormonal, contraceptive use.  The plaintiffs in the case are suing Bayer, the manufacturer of Yaz and similar birth-control pills, arguing that the manufacturer failed to disclose the alleged greater health risks associated with their pills as opposed to other non-hormonal birth-control methods.  As a result, the plaintiffs argued, they took these pills and suffered a variety of injuries including cardiovascular damage, and in some cases, strokes. 

Attorneys for Bayer want to ask the plaintiffs about all means of birth-control used, not just those that contain hormonal supplements.  By asking about the plainitffs’ complete sexual history, the attorneys argue, they will be better able analyze the cases and determine which are suitable for settlement and which are not.  There are currently over 1000 cases pending in this litigation.

Diving into the sexual history of the plaintiffs in this case has very little, if anything, to do with whether or not Bayer made a dangerous and defective product.  The arguments plaintiffs are making are all related to the doses of hormones these women took and whether or not all of the risks known to Bayer were adequately described and disclosed to the patients and/or their prescribing physicians.  The only relevance sexual history has on such arguments would be if those plaintiffs used other hormonal methods of birth-control either before or after using the Bayer products.

Instead, detailing the sexual history of every plaintiff, some of whom are minors, would have the effect of dissuading some from pursuing their cases.  And that is precisely the point.  Unfortunately, in other mass tort litigation over Ortho Evera and NuvaRing products, judges have allowed such questions.  But there’s reason to think this case could be different.  That’s because the Philadelphia mass tort program is coordinated by a woman. 

Judge Sandra Mazer Moss, coordinating judge of Philadelphia’s mass torts program expressed deep skepticism about the breadth of defendant’s request.  She did acknowledge that they were entitled to some information, but a detailed accounting of the past sexual history of the plaintiffs seemed a bit much.

The effect of a woman overseeing this case cannot be overstated.  For once a claim of injury is not seen as an open door to eviscerate a claimant.  Just like in rape prosecutions, past sexual history has specific, limited relevance in defending those charges and is more often used as a tool of intimidation.  There is no doubt, as Judge Moss stated, that the defendants are entitled to know about other uses of hormonal birth-control by the plaintiffs.  But for once we have a judge acting as a gatekeeper, trying to hold attorneys accountable when they take their advocacy too far.  Makes you wonder what would happen in rape prosecutions if we had more women judges.

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photo courtesy of nateOne via Flickr

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45 comments

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6:46PM PST on Feb 8, 2010

we need to put more money into better birth control

6:01PM PST on Jan 1, 2010

Wow Antony T why do you hate women so much? Probably because none of them want you...hmm I can't imagine why? Grow up. The sexual history of someone should never be used if it is not relevant because its no ones business. Uses of other hormonal birth control is relevent and none-hormonal is NOT relevant. What does using a condom have to do with the health risks of a pill you take? Its the same as asking someone suing a diabetes medication manufacturer about how many times they use condoms or have unprotected sex.

8:59PM PST on Dec 26, 2009

I have been on Yaz since the drug was relatively new, and there is not one possible side affect that was not disclosed to me. I am not backing pharmacuetical companies, far from it; in fact I think they are horrible in many ways. However, I do believe that each and every person should take responsibility for their own decisions. These people who are suing are simply greedy, and expect someone else to foot the bill for their stupidity. THAT is a huge issue here. Everyone should take care to research a product before they put it in their body....that is their responsibility, not anyone elses.

1:19PM PST on Dec 24, 2009

I think everyone should get all the inforamation they need when they go to court so they see what is really going on and not going on about their case.

3:03PM PST on Dec 22, 2009

Caralien's explanation of the request is exactly right- defendants have asked for information related to all birth control methods-including non-hormonal methods such as withdrawal--and the number of times used. That is, in essence, a disclosure on the number of sexual partners. From my own experience litigating mass tort cases these kinds of requests are drafted in part to discourage plaintiffs from moving forward and defense counsel will draft the broadest possible request knowing that if it is denied they can narrow it from there. My apologies if the article was unclear in the scope of the request but a lack of clarity is not a distortion of fact.

10:46PM PST on Dec 21, 2009

Can the defendents get the medical info they need anonymously? I see absolutely no reason why the women affected should have to give their sexual history at all- a history of what other methods they used, maybe, but no reason at all their identities should be available for viewing! Plus, you're blaming women for taking a product that YOU SOLD- unless it was labelled "by the way don't take this if you used blah blah blah and blah" it is YOUR FAULT, not theirs, if something goes wrong.

7:02PM PST on Dec 20, 2009

If I understand correctly, the question asked was whether non-hormonal contraceptives were used by the plaintiffs. This includes withdrawal, barrier with or without spermicide (condoms, cap, diaphragm, sponge), rhythm, or nothing (hormonal methods include the pill, patch, iud, implant). It is my understanding that the non-hormonal methods don't increase the risk of strokes or blood clots, although spermicide does increase the liklihood of yeast infections and spread of STDs, and the rhythm and withdrawal methods increase the chance of parenthood.

In a sense, the question in question lacks relevancy. All birth control pills are hormone based and have increased stroke and blood clot risks (particularly for smokers and those over the age of 30); non-hormonal birth control do not carry or increase these same risks when used before, during, or after using hormonal methods. If, in fact, the plaintiffs used hormonal birth control prior to Yaz, they should have been aware of the same risks. Still, if using Yaz has a higher risk of complications, stroke, and blood clotting compared to other hormonal birth control methods, that should have been disclosed (method A, 30% chance; method B, 80% chance).

This article wasn't very clear.

4:59AM PST on Dec 20, 2009

in fact the presumption of guilt is present in American law against men, already, and for some time now, the case of the workers at Hoover Dam who sued for lung disease caused by appalling working conditions, is a case in point, the sexual behaviour of the men in question, was used by the company to prove that this disease did not affect them at all, why should women be allowed a different standard, ?

Or is this just a case of weak women asking to be protected by the law, you asked for equality, now accept it, or is it that the sisterhood want it both ways, ? to be liberated and equal, or to tell us, what weak little creatures you are, and all men should come to the rescue of women in peril, and change the law, because of this, to give you protection that we do not have ? so which is it ? ladies ? equality, or feminisation of the laws, to say that all men are guilty, of everything, and it is our job to look after you, "because your worth it" ?

4:50AM PST on Dec 20, 2009

Fascinating, absolutely fascinating, how any one who seems to be losing a case, suggests bias on a sexual, basis, yet they are the same group, who are calling for a feminisation of the law regarding rape casses, and a presumption trhat the man must prove consent, or be deemed guilty.
When a defendant, seeks parity in law then I have no problem. But when someone says that this is not fair, to ask disclosure of other potential chemical products to determine the truth, then there is an outcry, any one defending against this allegation that their product was the cause, is right to ask about other uses of contraceptives and the type used, and the lifestyle of the individuals, because these are all complimentary factors in the problems, anything else is to say that the makers are guilty, before examining evidence.
Uncomfortable it may be for the women, in question, but I see no reason to say that a drug company and a court should be denied access to all the facts, before a decision is reached, and that IS fairness, not feminising the law to benefit the accusers, and preventing an honest appraisal of the evidence, by presuming that the defendant is somehow guilty in this case, and that no other considerations, like the presence of evidence to the contrary, must be allowed to interfere, because the accusers are female, in short, do not let the facts get in the way of a good story, seems to be the main thrust of this article.............
In fact the presumpti

1:43PM PST on Dec 19, 2009

As someone who has suffered a DVT which may or may not have been affected by a low dose non-Yaz BC, I understand that asking what other hormonal birth control has been used is relevant. What else might be relevant is whether or not plaintiffs were aware of any other clotting factors they may have had, and whether their doctors had checked their family medical history for clots, strokes, etc. But actually having sex, or a lack of it, does not cause blood clots or strokes, so it is irrelevant.

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