By Kim Adams, Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor, P.A
With this year’s election, the issues of gender equality and diversity were more prevalent than ever. Women from every profession spoke up about women’s issues, and the legal profession was at the forefront. There was a huge movement among female lawyers to unify and conquer the importance of gender diversity in our profession. Women decided it was time for the unconscious bias, stereotyping, and assumption about women’s competency in law firms and courtrooms around the country to reverse.
Women and men both need opportunity, access, and support to reach the highest levels of achievement in our profession, but historically women receive far less access and meaningful support than their male counterparts. Helpful support is more than lip service that an opportunity is available; it’s creating mentorship and outward acknowledgment that she is best for the job.
This year we saw new associates congratulating senior partners for specific accomplishments, and more importantly, senior partners sincerely acknowledging the work of younger lawyers and giving them the reigns to lead the charge. Yes, this year we took strong and confident positions on matters impacting women and made sure we were heard. We used our political and financial influences to start moving what were once seemingly unmovable mountains.
After years of being underrepresented, underestimated, and undervalued, women trial lawyers took every opportunity to use their unique skill sets. But, did the voices of so many women make a difference? It certainly seems to be moving in the right direction, at least in the world of product liability law, where for years women have taken a back seat, from working litigations from behind the scenes to now being the voice and faces of important litigations.
In the past, it was extremely uncommon for women to be appointed to leadership positions, first chair trials, conduct global settlement discussions, or have control over the big cases as frequently as male coworkers, but times they are a-changing. And, it’s more than the request for gender diversity that is making a difference.
Finally, women trial lawyers are actually being recognized by other women and their male counterparts for their specific work on these large product cases.
Our results are speaking for themselves; we just needed a platform, access, and opportunity. Woman trial lawyers are strong, resourceful, empathetic, and unfortunately the target market for many under-researched and defective products. Women understand the damages the products cause, especially when it comes to women-centered issues. We are major consumers, graduate at the tops of our law school classes, and represent more than half of the audience who will direct the fate of our clients. Proudly, we are moving mountains.
It is estimated that women account for more than 85% of all consumer purchases and is impacted by direct-to-consumer marketing much more frequently than men. It is no secret that Big Pharma works a lot harder to sell products than develop new ones. It certainly is not as profitable for a company to develop new products; rather, the real profits come from making minor variations to existing drugs. It has been estimated that for every dollar a pharmaceutical company spends on “basic research,” $19 goes towards promotion and marketing. Women take the brunt of the failures of Big Pharma and women trial lawyers understand consumer expectation because we are the major consumer.
Some of the most profitable drugs and devices for Big Pharma are the most dangerous for women. It is certainly not the intention to suggest that women are better for female-centered litigation, no more than men are better for male-centered litigation. It is important, however, that both genders be included, and to point out the benefits to including both genders.
And, to that end, no one is more frustrated and invested in discontinuing the practice of using women’s bodies as guinea pigs than women. Manufacturers target common emotions, physical characteristics, and reproductive systems with little regard for the well-being of the consumer.
For example, in the Prempro case, hormone replacement therapy (HRT), the risk of breast cancer, stroke, dementia and other severe illnesses were hidden from women for years. The hormone replacement case was a prime example of Big Pharma using marketing to convince women that there was an easy fix for common hormonal symptoms, and more importantly convinced the scientific community to continue to use dangerous products and downplay risks. In 2002, the Women’s Health Initiative (WHI) conducted the largest randomized, placebo-controlled trial of menopausal hormone therapy ever performed. The study was stopped early because of its harmful findings.
Yet, gynecologists continued to use these dangerous drugs because they did not find the WHI findings convincing. Dr. Adriane Fugh-Berman with Georgetown University Medical Center decided to find out why so many gynecologists doubted the findings of the WHI study. They evaluated 50 articles on the WHI study finding that 64 percent presented the WHI study with pro-hormone promotional language, and that 8 of the 10 targeted authors declared receiving consulting or speaking payments from manufacturers of menopausal hormones. They also uncovered that three of the authors had conflicts of interest and/or recycled sections of text word-for-word (without citation) in different articles. It was estimated that Pfizer had made $2 billion from drug sales and anticipated paying $772 million to help resolve claims. That’s a billion-dollar profit.
In the Paxil litigation, women and children were victims of what was likely the biggest marketing ploy in history. Big Pharma took full advantage of the public, primarily women, and spent billions to promote the idea of a chemical imbalance (not proven to exist) and the ability to correct that imbalance with a pill. The manufacturers of these drugs made it top priority to create markets and disorders permitting them to continue their assault on women. Paxil’s product director stated “[e]very marketer’s dream is to find an unidentified or unknown market and develop it. That is what we were able to do with social anxiety disorder.”
GlaxoSmithKline won five patent extensions over five years to increase its profits by $5 billion dollars by creating new markets or diagnoses for its medication. Eli Lilly was able to get premenstrual dysphoric disorder (PMDD) approved with no empirical evidence of its existence. In the end, the Paxil litigation finally uncovered what the manufacturers knew for 15 years — Paxil caused heart defects in babies during the first trimester of pregnancy. The devastation, judgment, and guilt felt by the women taking these medications was unfathomable and likely best understood by other women.
Another example of products directed at women is transvaginal mesh, marketed as a quick and easy fix for incontinence. More than 100,000 women joined in the litigation alleging significant injuries related to mesh erosion, infection, or chronic pain, which often ended their sex life. Women implanted with faulty mesh either experienced multiple surgeries, organ removal, and/or lifelong pain, a risk-benefit profile fully understood by women.
Similarly, talcum powder was marketed to women for use with feminine hygiene while hiding the warning of deadly ovarian cancer. Some experts estimate that 10–15% of all ovarian cancer cases are related to the use of talcum powder. Sadly, it is estimated that there are 20,000 new cases of ovarian cancer diagnosed each year. The magnitude of the women impacted by these products is unfathomable, and marketing strategy, hygiene routines, and benefit profile easily understood by women.
One final example is Essure, which was marketed as an alternative and permanent form of birth control. Since its introduction, tens of thousands of women have reported devastating injuries, including organ removal, chronic and significant pain, excessive bleeding, and severe mood changes, migrated and embedded devices, hundreds of fetal deaths, and even deaths of the user. The warning label for this product has been changed a number of times, and most recently a black boxed warning was added to the label to warn women of the risk. As with other women-centered products, this one should be off the market as the risk and benefit profile weighs heavily on the side of too much risk for women to take.
The need for gender diversity in litigation is often on the list of priorities, but what exactly is being accomplished? Professor Russel Pearce at Fordham University, who has studied issues of diversity was quoted in saying that “[Women and minorities] know that they’re not going to get an equal chance if they go to a big firm. It doesn’t mean they’ll get zero chance. It just means that they won’t get the same opportunities that a white man will get.” Unfortunately, this is still true in many areas of the country, but with more flexibility, true effort to provide support and opportunity, this realism could be a thing of the past.
We have seen the lack of diversity time and time again in mass tort litigations, including in women-centered litigations. For example, in Prempro, HRT litigation discussed above, out of more than 25 leadership appointments, women held only four spots. In the Yaz litigation, where the marketing tactics were arrogant and clearly without any regard for the more than 12,000 women who would allege strokes, death, and other severe injuries related to use of this product, only one woman made the leadership committee of 17.
Similarly, in the Zoloft litigation, where women and children alleged injury due to exposure, there were 16 leadership positions, but again only four women made the cut. Although the stats go on and on, a 2014 study made an attempt to analyze gender quality in product liability MDLs. The data indicated that men were appointed lead counsel 11.8 times more often than women from 2000–2004 and close to seven times more often from 2005–2009.
Judges have become more outspoken about the need for gender diversity in all cases. In the Mirena litigation, (IUD prescribed to prevent pregnancy), Judge Cathy Seibel urged lawyers to include women among the ranks in their leadership. “I think that’s important.” Still, out of the 16 spots open for leadership, only 6 were women and zero women were lead counsel. In the Fluoroquinolone litigation, the judge questioned why no women were on the PEC slate and urged adding one immediately.”
In November 2015, Judge Kathryn Vratil appointed 11 female lawyers to a 20-lawyer executive committee overseeing approximately 300 cases in the In re: Ethicon Inc. Power Morcellator Products Liability Litigation. This was the first-time women made up the majority of a leadership committee in an MDL proceeding. Finally, on December 9, 2016, Judge Freda Wolfson appointed women as co-lead counsel and as 1/3 of the entire committee in the Talc litigation.
Certainly, not all women or men are supportive of the effort to increase gender diversity arguing that gender diversity efforts do not always promote the best person best suited for the job. Respectfully, I would disagree. The bottom line is that without promoting and providing the access for women to get to the table, the ability to truthfully consider the best person for the job is lacking. Where nearly 50% of students graduating law school are female, diversity is critical.
Women are dominating the market, targeted and impacted significantly by Big Pharma, graduating at the top their class, and over half of our audience. If law firms do not continue to make immediate strides toward becoming more gender diverse and do a better job promoting and accepting gender diversity in their firms, they will run the risk of alienating the next generation of lawyers, and possibly clients.