Last week brought news of Eli Lilly paying a confidential amount to settle claims by four "DES daughters" (the Fecho sisters) who asserted they they developed breast cancer because their mother took DES while each was a fetus. In other words, each plaintiff was exposed "in utero." The claims started trial last week in federal court in Boston, presumably with a smarter than average jury given that the case was in federal court in a town loaded with smart people. Different constituencies will offer differing views on whether the confidentiality is "bad," "good," or just "necessary" to get cases settled. On amount, one piece of data is that an article by Ross Todd attributed the following comment to Mr. Levine:
"Although the financial terms of the deal are confidential, Levine said that after speaking with jury members after the settlement was announced he estimates they would have returned a verdict of around $40 to $50 million."
One also can infer that Eli Lilly demanded that both sides refrain from extended public statements. That inference arises because public comments are now very limited. For example, lead trial counsel for the plaintiffs (Aaron Levine and Julie Oliver-Zhang) have said virtually nothing about the settlement, and their usually informative blog simply reports that the settlement happened and links to a media article on the settlement. For a pretrial blog post, see here. Similarly, the Eli Lilly "online newsroom" does not include a January 2013 press release on the settlement. The article by Mr. Todd attributes to Eli Lilly an emailed statement saying: "While we continue to believe that Lilly’s medication did not cause the conditions alleged in this lawsuit, we believe the settlement is in the best interests of the company."
The Fecho case is to me fascinating at the micro and macro level. Indeed, for some time now, I’ve been following the claims asserted by the Fecho sisters because it appears their claims illustrate why the next 20-50 years will bring significant amounts of global litigation involving cancer and other harms arising from past exposures to substances. Occasional blog posts to follow will explore the DES-related claims in more detail. For now, background facts help to set the stage.
DES is an old drug producing new claims as science evolves. The claims of the Fecho sisters arise in part due to the emergence of more and more data indicating that DES causes breast cancer in daughters of mothers who took DES while the daughter was a fetus. The analysis of the increased risk of disease is itself interesting because it illustrates that relative risk is not necessarily a static concept for a particular person. Instead, relative risk can vary, with age as one variable. Thus, according to a blog post by plaintiff’s counsel, science currently says:
"DES daughters are at a 105% increased risk of developing breast cancer beginning at age 40. By age 50, the risk of DES breast cancer increases to 285%."
So, what is DES and why were women taking it while pregnant? To briefly recap, DES (diethylstilbestrol) is a synthetic nonsteroidal estrogen. From about 1940 to 1970, it was said to give pregnant women as a purported means of producing healthier babies and reducing the risk of pregnancy complications. During part of the same time period, it also was given to prepubescent girls to prevent “excess height.” That is, taking DES induced puberty and then growth plates in the females’ bones would close sooner. Since those days, time and science have shown that DES causes diseases and birth defects in at least “DES daughters and granddaughters,” as well as in DES sons and grandsons.
The emergence of more DES claims is due in part to the October 2011 publication of the Hoover paper in the New England Journal of Medicine. The Hoover paper is a long-term study of descendants of mothers who took DES. This paper was inspired by the observations of researchers who noted that “DES daughters” were 40x more likely than others to suffer from a once-rare vaginal cancer. Ultimately, the Hoover study concluded that “DES daughters” had an increased risk of 12 medical conditions. The paper is part of the evidence offered by the Fecho sisters to support their claims. The claims of the sisters present a striking set of facts, as described in this post on a blog published by plaintiff’s counsel:
“The Fecho sisters, a family of four DES daughters from Pennsylvania, will be the first DES breast cancer case to be tried in court. The four Fecho sisters were all exposed to DES in utero and all suffered infertility as well as a myriad of signature DES reproductive tract abnormalities. All four sisters contracted breast cancer on or before the age of 50. The eldest, fifth Fecho sister, who is not a party to the lawsuit, was not exposed to DES. She was able to have a child, and remains cancer-free."