Gender Stereotypes in Mass Torts

by Leah Rush Easterby, Contributing Editor

For years, women have raised concerns over outdated and discriminatory practices in mass tort cases. The trickle-down effect from patriarchal stereotypes at the highest levels of government, workplaces, and courthouses means that time and time again, women have not received the most effective representation in mass tort cases, nor are they awarded the damages they deserve when compared to their male counterparts.

The use of gender-based data in estimating damages and the lack of gender parity in mass tort leadership positions have historically harmed women seeking recompense through mass torts. Dedicated efforts to change these practice norms promise improved outcomes for women plaintiffs in the future.

Women are more likely to be victims of Big Pharma.

Since the advent of pharmacologic birth control, women have been a target market for pharmaceutical manufacturers. An estimated 88.2% of all women ages 15 to 44 years old use at least one form of contraception during their lifetime. Because women are given the practically exclusive task of managing birth control, the pharmaceutical industry has treated us like the goose that laid the golden egg for decades.

According to the American Association for Justice, “a number of women specific health products have long been both a multi-billion dollar industry and a litany of incidences of corporate neglect and serious health risks.” As with Essure and Paragard, “when dangers become public knowledge, companies frequently continue to market them and play down the dangers, anticipating that any repercussions down the road will be more than justified by a continuing stream of profits.”

The problem doesn’t stop with dangerous birth control products directly marketed to consumers. Consider talcum powder. That massive litigation has revealed internal documents confirming just how far Johnson & Johnson is willing to go to make a buck. Despite the fact that J&J had known for decades about the cancer risks associated with prolonged talcum powder use, it “continued to aggressively market the powder to Black women while failing to report contaminated baby powder to regulators or the public.”

Women Receive Smaller Damages Awards Than Men.

To add insult to injury, after being butchered by Big Pharma and our trusted doctors, women get categorically lower damages awards than men. The issue arises regarding compensation for future losses, in particular the potential to lose future earnings.

The practice of using gender-based actuarial tables to calculate women’s lost future earnings has continued far into the 21^st century. In mass tort cases, that means women plaintiffs are awarded smaller damages than men on a massive scale. Through the lens of gender-based data, women are all painted with the same brush, despite each having unique circumstances that would otherwise affect their work-life projection.

Women have historically received shorter work-life projections than men. The antiquated view that every woman will inevitably need time off from work to raise a family, during which time she will not earn a salary, is still accounted for in gender-based damages calculations. This method for estimating damages has been under heavy criticism since at least the 1990s.

It’s clear that interest in the nuclear family is dwindling, and fewer and fewer women are opting to have children. In 2018, just over half of all women in the U.S. had children. Yet, every woman plaintiff is vulnerable to the same discriminatory damages calculation models in the courtroom.

This outdated view of childrearing and women’s career trajectories is just one of many variables affecting outcomes for women in mass torts. Not only do women plaintiffs get short shrift in their damages calculations, but the practice perpetuates outdated and unfair systemic gender bias. Some lawyers and judges are beginning to argue that using gender-based data to determine damages is unconstitutional.

The Gender Wage Gap Won’t Close on its Own.

It’s no secret that as a general practice, women still earn less money than men. While the gender wage gap has been narrowing, it’s a slow race. At its current pace, the wage gap won’t be fully closed until 2059. A 2019 census reported that women earned about 82 cents for every dollar men made, roughly 18 percent less. This figure is known as the raw gender wage gap.

The controlled gender wage gap, which accounts for additional factors such as occupation, management level, and years of experience, shrinks this number to only 2 percent, or 98 cents for every dollar a man makes. However, when compounded over time, women still lose out significantly in the long run.

Economists factor in the wage gap when estimating damages for women plaintiffs, resulting in a lower damages calculation when compared to their male counterparts. Since one of the starting points for calculating a plaintiff’s potential lost earnings is her past earnings, women again draw the short straw when it comes to damages awards in mass torts, largely due to the wage gap.

The wage gap exists at all levels of education and is even more significant for women of color. According to the Organisation for Economic Co-operation and Development (OECD), 60% of a gender pay gap results from a “glass ceiling,” while 40% results from a “sticky floor.” Women might be denied promotions due to the assumption that they will need to take time off to raise children, effectively keeping them beneath a “glass ceiling” where their wages are lower.

Sticky floors refer to stereotypes projected onto women that negatively impact their careers. For example, an employer might automatically assume that a woman is less capable of handling a position due to gender bias and might offer her a lower salary than a male applicant.

Again, stereotypes of the nuclear family and women as childrearing vessels play a role. With no federally mandated maternity or paternity leave, the burden of caring for children generally falls to women due to patriarchal views of childrearing. In turn, women who have children lose out on earnings while raising a family.

Unfortunately, the effects of the wage gap do not just affect a woman’s paycheck but spill over into legal matters that ultimately affect her chances for compensation in mass tort lawsuits.

Knowing what we now know, there’s no defensible reason for this slow progression, even for women who do have children. Instead of allowing sweeping devaluation of women’s domestic efforts when it comes to earning potential (and apologizing for needing a break to pump milk for our children) women need to start demanding more because we’re mothers. Moms have skill sets others couldn’t dream of, and it’s time that we know our value and expect compensation for it.

Smaller damages awards for women are evidenced throughout history.

Gender-based social norms have been negatively impacting women seeking settlements in lawsuits for decades.

Since 2011, thousands of women have filed lawsuits against the makers of pelvic mesh products, alleging adverse effects from the product’s defective design. Despite the massive scale of the litigation, women’s average settlement is less than $60,000. However, some women received much higher payments, suggesting the awards should have generally been higher.

The $60,000 average is far less than that of other mass torts. For example, Biomet paid an average of about $79,000 to settle roughly 2,000 faulty hip implant claims in 2015. And in 2013, Johnson & Johnson settled similar claims for defective hip implants for an average of $250,000 per person.

The disparity between these settlements is a manifestation of the gender stereotypes that negatively impact women in mass torts time and time again.

Women are Underrepresented in Mass Tort Leadership.

The gender gap permeates all facets of women’s lives, including the legal profession. Women plaintiffs have continuously raised concerns about the incongruity between the number of women attorneys and judges in mass tort cases compared to men.

Although women have achieved parity with men in law school graduation, that success has not translated to leadership positions in mass torts. A study by Dana Alvaré entitled “Vying for the Lead in the Boys’ Club” found that women made up just 16.55% of total plaintiffs’ leadership positions in MDLs from 2011 to 2016.

The lack of leadership roles for women in mass torts represents gender discrimination at work. Because selection for a leadership role in an MDL often rests on prior experience in mass torts, women may be selected at a lower rate than men.

Inexperience with mass torts makes it more difficult to thrive in a leadership role, meaning the pool of candidates for leadership roles is rarely diversified. Essentially, the same group of attorneys receives the opportunity to fill leadership roles in mass torts over and over again.

That there are far fewer women in mass tort leadership roles than men means that women plaintiffs are often represented by lawyers with limited ability to empathize with them.

Reform Efforts Promise Progress.

Despite lagging opportunities for women, there have been increasing efforts recently to proactively ensure women have positions in mass tort leadership. In the same study by Dana Alvaré, the average rate of total female appointments increased to 27.65% in 2015. Some judges have even ordered that more opportunitiesbe provided to less senior attorneys to provide the experience necessary to attain a leadership position to a more diverse group.

Judge Robin Rosenberg, the Zantac MDL judge, made an overt effort to appoint a diverse group of attorneys to leadership positions. In her appointment order, she noted her efforts to “appoint a diverse leadership team that is representative of the inevitable diversity of the Plaintiffs in [the] case, and a team that affords younger and slightly less experienced attorneys an opportunity to participate in a leadership role in an MDL.” She also pointed out that only 31% of applicants in the case were female and that “much work remains to be done to give judges an applicant pool that reflects the diversity of not only our society but our profession.”

All these efforts are promising, but we can’t rely on woke judges and legislators to solve this problem. As with so many other areas of the law, plaintiffs’ lawyers are the last line of defense for the vulnerable. Women need male and female lawyers to do more to resolve the disparity in female representation, women’s damages awards, and the simple fact that we’re targeted by Big Pharma.