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It is bad enough that the mass tort system in our country approximates a system of jackpot justice that, if it ever does justice among the parties, does so accidentally. But its wild inefficiencies and inconsistencies also have macro adverse effects on things like consumer choice and the overall healthcare system.

A recent law review article offers further support for our scurvy view of mass torts by explaining how the long, inglorious history of lawsuits against contraceptives has hurt consumers and society. The article is by Eric Lindenfeld, is entitled “The Unintended Pregnancy Crisis: A No-Fault Fix,” and it appears in the Spring 2016 issue of the Marquette Benefits & Social Welfare Law Review.

The article begins by outlining the unintended pregnancy crisis, which is caused at least in part by dissatisfaction with current methods of contraceptives. The article argues that the less-than-robust portfolio of available contraceptives is attributable to a stagnant research and development milieu for new contraceptives. That stagnant milieu is attributable, in turn, to the frenzy of mass torts against contraceptives. The article recites the history of litigation against the birth control pill, Dalkon Shield, Norplant, as well as more recent litigations, such Yaz/Yasmin, Mirena, and Essure. Not all of those litigations were particularly successful for plaintiffs. Not all possessed any merit. For example, the article cites evidence that Norplant turned out to be safe and efficacious – but the expense of the litigation and the enormous adverse publicity drove the product from the market. The real losers were consumers.

In fact, the article argues that consumers have suffered from the entire history of litigation against contraceptives. If contraceptives are inherently high-risk products, and if litigation is a near-certainty, with attendant costs and publicity dwarfing what happens to most defendants found liable in other cases — even when the contraceptives pass regulatory muster, are state of the art, and turn out to be as safe and effective as reasonably possible — why would any sane company invest in that therapeutic area?  (By the way, this discussion makes us look back at the plaintiff Women’s Health Law Conference we attended a while back, and makes us wonder whether the plaintiffs’ war on an entire category of products might be causing catastrophic collateral damage.)

As we have said a couple of times before, law review articles can be enormously helpful in their diagnoses of problems and their assemblies of precedents. But when they turn the corner and offer a solution, our eyes tend to glaze over. The prescriptions are usually pie-in-the-sky or worse. But at least Lindenfeld first considers the ‘solution’ we would suggest, which is vigorous application of federal preemption principles. There is even a citation to “James Beck, leading medical device and pharmaceutical product liability scholar.” No wonder we like this article. But Lindenfeld concludes that preemption is a poor solution to the growing crisis. He worries about placing too much faith in the FDA, and also worries about some consumers being thoroughly shut out of court. Finally, he observes that judicial interpretation of preemption doctrine has resulted in “a volatile, and unpredictable, preemption regime.” Well, there he has a point. What is needed is a consistent, coherent application of clear preemption principles. If anyone or any court wants to know what that application would consist of, simply read further in this blog. Meanwhile, if preemption has not ameliorated the problem of protecting safe and effective products from the predations of the tort system in this country, that is because it has not really been tried.

In addition, the article proposes a no-fault fix to the contraceptive litigation disaster. It would be modeled on the vaccine injury compensation program. What to say about that? To us it seems both too much (good luck getting something like that through the current political gauntlet), and too little (why just contraceptives? What about life-saving drugs and devices?). But that’s okay. Remember what Wordsworth wrote about the era of the French Revolution: “Bliss was it in that dawn to be alive/but to be young was very Heaven.” We are delighted and amused by the ambitions of the young, and are grateful when those ambitions produce something as useful and interesting as this article.