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.
photo courtesy of nateOne via Flickr