Statement on Commerce, Trade, and Hazardous Materials Product Liability Reform - Feb. 21, 1995

Thank you for affording me the opportunity to testify on the product liability provisions of H.R. 10, the Common Sense Legal Reform Act, and H.R. 917, the Common Sense Product Liability Reform Act.

I am here today to draw attention to certain provisions in these bills which will impact negatively on millions of Americans who rely on the courts to provide relief in instances of injury from defective products.

I am a DES mother. I have a DES daughter. Diethylstilbestrol or DES was approved by the FDA in 1947 to prevent miscarriages, notwithstanding that there was evidence that synthetic estrogens given to animals caused cancer and malformed reproductive organs in the young.

Furthermore there were doctors who believed that DES did not prevent miscarriages. In 1951 one such physician at the University of Chicago, Dr. Dieckmann, decided to disprove its value in preventing miscarriages, and undertook an experiment involving 2,000 pregnant mothers receiving prenatal care at the University of Chicago Lying-In Hospital. 1,000 pregnant mothers were administered DES and 1,000 were administered placebos. I was one of the women who was experimented upon. Most of the women were at no risk of miscarriages and yet we were administered DES without our knowledge or consent.

The results of the experiment proved that DES was wholly ineffective as those who received DES had more miscarriages than the control group. Notwithstanding this information FDA did not pull this drug from the market and DES continued to be used until 1972 when reports from Boston indicated that DES babies were afflicted with a rare form of cancer.

10 million women and men are DES mothers, daughters or sons. Many have died. Many are in threat of death. Many live in constant fear that the next examination will show that they too have cancer.

I was not aware that I had been administered DES during my pregnancy. I did not find out until 25 years later. I received a blunt letter from the University of Chicago in March of 1977 from a researcher who wanted to find out whether either I or my daughter had cancer because the records she had indicated that I had been given DES during my pregnancy.

Needless to say, I sued the University and Eli Lilly company who had supplied the DES for the 1,000 victims. I recovered a settlement and a pledge that all of the DES daughters would be treated at no cost if they developed clear cell adenocarcinoma of the vagina or cervix at any time prior to age 70.

My daughter and several other daughters filed suit also. She recovered nothing because the court felt that she had not developed cancer, only a precancerous condition. Since 1977 my daughter has had to have follow up colposcopies every six months, sometimes more frequently. None of her medical expenses attributable to DES have been paid for by either the University or Eli Lilly. Is that fair? She lives in constant torment over what medical people did to her and which the court callously refused to award her damages for her lifetime of hazard. Absolutely no one knows what will happen to all of these DES children as they grow older.

There is no doubt whatsoever that DES has caused irreparable injury to millions of children. Damage like that caused by DES, cannot be calculated in lost wages, or doctor bills or hospital days. DES victims in many cases cannot have children, have severely deformed sexual organs, have impaired immune systems, and have a lifetime of fear of developing cancer. DES mothers have a higher risk for breast cancer.

Yet, H.R. 10 would severely limit the ability of DES mothers and children to recover damages for the harm inflicted upon us and H.R. 917 would prevent any DES victim from recovering any damage at all.

H.R. 917 completely absolves all responsibility of manufacturers and drug providers by prohibiting a product liability suit if the drug was subject to pre-market approval by the Food and Drug Administration. Under this scenario no DES mother would be able to recover any damages whatsoever for the harm caused to her and her children, even though there was evidence that the drug was harmful at the time of FDA approval.

In addition H.R. 917 completely ignores the rights of victims by allowing manufacturers a "complete defense" if they simply complied with federal product or labeling standards.

I find it ironic that this bill seeks to provide complete protection to manufacturers through the use of FDA standards and approval processes at the same time that the bill's proponents are also proposing to severely curtail the functions of the FDA.

DES victims should be allowed to sue for damages under basic principles of tort liability. DES exposure is a continuing threat, and at any point when it results in cancer or any other life threatening consequences the parties responsible should be held accountable.

Joint and several liability should be allowed for all damages. It should not be restricted to only economic damages, as prescribed by both bills. DES people suffer mostly from non-economic damages and it would be grossly unfair to deny them full recovery from any one defendant if not all.

DES people must be allowed to fully recover from all defendants and they must be allowed to recover punitive damages as well. If the harm they suffered was caused by willful and wanton behavior by what right does the Congress deny them punitive damages?

I speak not only for the rights of DES children, most of whom are still in their late thirties and early forties, but I also speak for women who have been injured by defective breast implants, by defective Dalkon Shields and IUDs, by defective tampons, and other yet unknown incipient defective procedures, processes, drugs and devices carelessly designed for women.

Women are paying a heavy penalty. Please do not exact still another price by denying them their right to recover damages for which they may be entitled.

Speech from http://gos.sbc.edu/m/mink2.html.