Continuation of the judicial saga about the “Distilbène daughters”: judgement on principle, or judgement of Solomon?

On September 24, 2009, the French Supreme Court (the French “Cour de Cassation”) pronounced an astonishing decision concerning the liability of pharmaceutical laboratories towards victims who had been exposed to distilbene in utero and later on developed uterine cervical cancer.

Two judgments from the Versailles Court of Appeal of November 29, 2007 and April 10, 2008 concerning the liability of pharmaceutical laboratories concerning the distilbene molecule had been transferred to the first Civil Division of the French “Cour de Cassation” for a revision of their compliance with French law.

The French “Cour de Cassation” quashed the judgment from the Versailles Court of Appeal of April 10, 2008, and decided that it is incumbent on each of the incriminated laboratories (in this particular case UCB Pharma and Novartis) to prove that its product didn’t cause the damage, since the DES had demonstrably been the cause of the tumoral pathology, thus reversing the burden of proof in favour of the victim.

This judgment could have severe consequences for  pharmaceutical laboratories in that it assigns full liability to the laboratories manufacturing this molecule. However, this judgment has to be seen in the particular context of the distilbene scandal, which raises a problem of public health, as the causal link between the molecule and the cancer has been perfectly established and the victims struggle with a problem of proof because the medical archives do not allow the preservation of copies of prescriptions issued more than 35 years ago.

Therefore, it is more than likely that this judicial legend will be continued.