Is Pfizer Liable for Pregnancies Caused by Faulty Birth Control?

A budding class action suit seeking $5 million in damages for a similar recall could have a significant impact on what the big pharmaceutical firm pays out.

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Pharmaceutical giant Pfizer recently announced it's recalling one million packets of birth control medication because it mixed up the order of the hormone-containing pills with placebos during packaging, putting an unknown number of women at risk for unintended pregnancies. While news of this error spread quickly, the question of Pfizer's liability in this incident and how it delayed to notify the public has received scant attention.

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If women end up pregnant because of this production debacle, what is Pfizer's legal responsibility? The cost of terminating the pregnancy or carrying the child to term? Physical and mental health issues related to the pregnancy? Rearing the child? Adverse outcomes during childbirth? Or are corporations such as Pfizer shielded by the law from facing substantive damages?

In interviews with legal experts in reproductive rights and product liability, and an examination of related case law, we have found that the answer to this question is largely determined by the state in which a potential defendant resides.

About three-quarters of the states in this country recognize "wrongful pregnancy," also known as "wrongful conception," in which damages can be recovered for use of faulty contraception or a failed sterilization. But recoverable damages in such cases vary from state to state.

The most common allowable damages in wrongful pregnancy cases cover the expense of the pregnancy and childbirth, which can also include related costs such as mental or physical injury and loss of wages. A much smaller fraction of the states that recognize wrongful pregnancy permit for damages that include the cost of rearing the child, but this is offset by what the courts deem as the value of having a healthy child.

"A preventable pregnancy because someone was too sloppy on the quality control side to put the pills in the right sequence -- that to me is an arrogant judgment to say that's low risk."

Only a few states allow for the full damage rule in wrongful pregnancy cases, which says that all damages caused by the injurious act are recoverable, including the cost of raising and educating a child without being offset by the emotional benefits of having a healthy child.

Recovering the cost of an abortion, however, is generally not sought in a wrongful pregnancy suit because the expense of going to trial would exceed that of the procedure. And in "wrongful birth" cases -- in which medical professionals failed to detect or tell the patient that the fetus showed some kind of anomaly that led to a birth defect -- liability would fall to the physician or hospital but almost certainly not to the distributor of the negligent birth control.

Legal experts also pointed out that the right for women to bring wrongful pregnancy lawsuits is still in its relative infancy, so to speak, going back only a few decades. And the majority of these cases have been due to failed sterilization procedures, such as a tubal ligation that afterward still led to pregnancy.

It once was the case -- and still is in about a quarter of the states -- that the emotional and spiritual benefits of having a child trumped any negligent act, such as failed contraception or sterilization, which led to an unintended pregnancy.

But while these wrongful pregnancy lawsuits are now recognized in the majority of states in this country, they remain the only type of tort -- civil cases in which damages can be sought by an injured party for a wrongful act -- in which the plaintiff is not guaranteed the right to seek damages for all related injuries.

Caitlin Borgmann, CUNY law professor and reproductive rights expert, said that by not allowing recovery for the costs of raising a child, the vast majority of courts are just carving out this one area and cutting off this source of recovery. "There's something about pregnancy that makes courts want to treat it differently," she said. "Normally, if someone causes you a harm that's recognized in law as a tort -- if they did it negligently, not intentionally -- then they're responsible for anything foreseeable resulting from that conduct."

Historically, with regards to cases of wrongful pregnancy, the courts argued that this would be speculation. But today, Borgmann said, the arguments against this view are much more convincing. She pointed out that not only is it now a self-evident fact that raising a child is incredibly expensive, it's especially persuasive if the injured party was using the contraception in the first place because they couldn't afford to have a child.

Borgmann and other legal experts only found one precedent directly involving birth control pills that led to an unintended pregnancy, Troppi vs. Scarf, a 1971 case in which a pharmacist accidentally filled a birth control pill prescription with tranquilizers. Originally the judge dismissed the case, ruling the benefits of the child far outweighed the damages. But the plaintiffs, who already had seven children, won on appeal and were awarded damages that included the cost of rearing the child, but which were offset by the benefits of parenthood.

But a budding class action lawsuit against another pharmaceutical company, which recently recalled birth control pills for the same type of packaging defect as seen in the Pfizer recall, might have a significant impact on what Pfizer could be liable for in the future.

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In September 2011, Qualitest Pharmaceuticals issued a recall of 1.4 million birth control pills that, as with the Pfizer recall, had been packaged in the wrong order, misplacing the placebos and the pills containing hormones.

Two weeks later, a proposed nationwide class-action lawsuit was filed, with Lauren Betancourt as the first plaintiff to be named in the complaint. Betancourt claims the defectively packaged pills led to her pregnancy.

The class action is seeking more than $5 million in damages. According to the complaint (available in full here), "the plaintiff is pregnant and she has suffered and may suffer bodily injury resulting in pain and suffering, mental anguish, loss of capacity for the enjoyment of life, expensive health care and treatment, loss of earnings, and a loss of ability to earn money."

Attorney Keith Bodoh, lead counsel on this class action, told us that since the initial court filing many other women have joined the suit, with so far about 70 in total, and he keeps receiving new calls every day. Bodoh, and his co-counsel attorney Steve Beard, are now representing clients across the country, including women in California, Texas, Kentucky, North Carolina, South Carolina, Florida, Michigan, New York, Nevada, Washington, and Oregon.

He noted that over 200 women have contacted him and over 98 percent of them claim they are pregnant because of Qualitest's defective packaging. "So it's a serious blunder," he said. "It wasn't just one or two here or there. It looks to me, based on the telephone calls that I've received, that there are maybe thousands of people that are pregnant because of this with Qualitest."

Several women have already contacted Bodoh regarding the Pfizer birth control recall, but he said that it's too early in the process to assess how many people may be affected.

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Brad Jacobson is a Brooklyn-based freelance journalist. His reporting has also appeared in the Columbia Journalism Review, Billboard, AlterNet, and other publications.

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