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."