DES Premature Grandchildren
By: Aaron M. Levine
Aaron Levine and Associates has been at the forefront of DES litigation for over 25 years. Mr. Levine was the Chairman of the DES Litigation Committee of the American Trial Lawyers and an author of many publications regarding the DES story. Through Mr. Levine's advocacy, the laws governing statute of limitations, product identification and third generation rights have been liberalized for DES daughters and their preterm birth injured babies.
This article concentrates on DES premature grandchildren who live normal life expectancies but suffer a range of impairments from moderate learning disabilities to devastating handicaps and who, "but for" their mother's in utero DES exposure, would have gone to term and lived normal, healthy lives. These children are carrying the brunt of the DES disaster and will carry their DES wounds decades forward. Below is a description of some of the issues unique to lawsuits involving DES premature grandchildren. We note that this article does not cover a range of DES injuries, including miscarriages, stillbirth, or the death of preterm children.
I. The Obstetrical Issues
The science of how DES compromises a DES daughter's uterus and cervix, thereby leading to preterm birth, is well established. Preterm birth, which can be classified as 1) preterm labor, 2) premature rupture of the membranes (P.R.O.M), 3) preterm delivery, and 4) incompetent cervix, results from DES malformation (e.g. T-shaped, hypoplastic uterus or cervical malformations). Not only are DES Daughter's cervixes shorter, but they also have less collagen and less tensile strength. The DES deformed hypoplastic uterus is less capable of expanding. This constricts the growing fetus and sets off a cascade of effects initiating labor, P.R.O.M., dilation and effacement. The DES cervix may be congenitally short, hypoplastic and flat, thereby incompetent to hold a pregnancy.
Additionally, DES Daughters are particularly vulnerable when exposed to gynecological conditions and viruses in the general population such as dysplasia and HPV (human papillomavirus, suffered by 50 percent of the population). They receive more aggressive cervical surgery than their unexposed cohorts - it's a double whammy. The DES Daughters are prone to have a thin and hypoplastic cervix and then, when exposed to the normal pathogens and viruses causing dysplasia adenoses or erosions, they receive more and greater cryosurgery, leep procedures or cone biopsies because of the fear of cancer. This puts their children at risk for premature delivery, as these procedures cause the barrier to the vaginal canal to lose substance and muscular integrity. Often DES daughters with uterine or cervical malformations are cerclaged and put on bed rest for the pregnancy. New studies are questioning the efficacy of cerclage.
Premature birth and the devastating injuries that result can be a significant risk for the children of DES daughters. Normal human gestation ranges from thirty-eight to forty-two weeks. The average newborn is 2700 grams (six pounds). Viability outside the womb starts, at its earliest, at twenty-four weeks. Extremely low birth weight premature infants (ELBWs) are usually 1,000 grams or less or, prior to thirty-four weeks gestation. Micro ELBWs are twenty-four to twenty-eight weeks and about 500 to 1000 grams. The relative risk of a devastating permanent injury (usually cardio, pulmonary or neurological) to an ELBW is around thirty percent and to a micro ELBW is around sixty percent. See www.medicalhome.org.
The latest DES study of 3373 DES women reflected a relative risk of a preterm delivery (prior to thirty-seven weeks) roughly three times higher for a DES exposed daughter verses the unexposed. Kaufman, et al., Obstetrics and Gynecology, Oct. 2000 Vol. 96, No. 4. But, and this is a big "but," they studied only "exposed" daughters and did not investigate the category of "exposed daughters with uterine or cervical malformations." The risk for this group must be much higher. No study has even been conducted on DES daughters with documented, significant uterine or cervical malformations. Our experience is that a DES daughter with a significant uterine or cervical malformation has a forty percent risk of preterm, earlier than thirty-seven weeks, twenty percent risk of ELBW, earlier than thirty-four weeks, and a ten percent risk of a micro ELBW earlier than twenty-eight weeks.
DES daughters who undergo assisted reproduction and IVF are more prone to multiple pregnancies. Because of their risk of miscarriage, doctors implant more than one embryo. This adds an additional risk of a preterm pregnancy because twins and triplets are born weeks earlier than singletons.
If you are trying to get pregnant, be sure that your doctor is familiar with DES, knows you are a DES daughter, i.e. T-shaped uterus, hypoplastic uterus, prior cervical surgery and their relation to your DES exposure, propensities or anomalies. Confer with your doctor and know the risks of having a preterm child and whether it merits using your uterus as opposed to a surrogate and what precautions you should take.
II. The Legal issues
We have uncovered studies going back to the 1930's which describe the malformation of the uterus and cervix in animals from in utero exposure to DES and estrogen. Many sexual tissue abnormalities in exposed offspring were reported in France and England as well as America and were never followed up by the manufacturers before or during their promotion of DES. The tissues of the female reproductive tract have always been known to be estrogen sensitive. Reports go back over a hundred years of stunted uteri in animals from excess estrogen exposure (whether synthetic or natural). In the 1950s many drug companies were doing generational studies on the effects of their drugs on the children of pregnant mothers, but not the DES manufacturers. The DES companies did not do any testing, nor did they do any controlled studies on efficacy.
There are two old, unfortunate, and restrictive appellate decisions from New York and Ohio which deny DES grandchildren compensation for their preterm injuries on the grounds that these injuries are too remote from the ingestion of the drug. Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 570 N.E.2d 198 (N.Y. 1991), Grover v. Eli Lilly & Co., 63 Ohio St. 3d 756, 591 N.E.2d 696 (Ohio 1992). In those cases the court reasoned that it was not foreseeable for drug manufacturers in the 1950's to anticipate a grandchild injury and that the pharmaceutical industry should be protected from multi-generational claims for injuries. There are no appellate decisions supporting the rights of a DES-injured preterm grandchild.
Our office developed a legal strategy to avoid the restrictive decisions of Enright and Grover and we successfully convinced courts that those decisions are both unfair and unrepresentative of the current state of the law. Our arguments are the following: (1) those cases are old and no longer reflect current legal thinking; (2) DES was a target drug aimed at the female reproductive tracts and it did not take a rocket scientist to realize that, if you are meddling with the reproductive tract of the mother, you risk deforming the reproductive tract of the daughter, i.e. DES was given to two individuals; (3) the DES preterm grandchild's birth uterus actually was impacted by DES. That is to say that the actual DES came into contact with their actual birth uterus and therefore the injury is not remote. (4) the DES grandchild case does not pose a continuing and indefinite threat since the injury ends with the grandchild because there are no genetic or chromosomal injuries capable of continuing into the future; (5) it would be unfair to deny these children compensation for an injury when other preconception torts are compensated (for example failed tubal ligation and wrongful birth cases); (6) the fact that these injuries manifest themselves 30 or 40 years after the prescription should not benefit the drug companies since it was their fault – they built the time bomb with a 30-year fuse. The diagram sketch enclosed has convinced courts that DES prematurity is not a recent disease. If you would like a copy of our latest brief outlining our DES grandchild arguments, send me an email at aaronlevinelaw@aol.com.
III. The Terminology
DES premature grandchildren are typically referred to as "third generation" victims. This is a phrase created by drug companies to support their argument that the injury to the grandchild is too remote for the company to be held responsible. "Third generation" is a misnomer. In reality, the injured preterm child is the second generation. The DES Daughter is the first generation since she was actually injured while exposed to and in contact with the drug (even though she was a fetus). The DES preterm child is the second generation. The proper description is Second Generation DES - Caused Pre-term Birth. See diagram.