CHD and the Law: Can You Sue Over Your CHD?

This blog series features stories involving congenital heart disease and the law. The blog posts may discuss contemporary or historical court decisions, laws or regulations, or other legal issues that relate directly or indirectly to CHD. These posts are purely for entertainment and educational purposes and are not legal advice. Any opinions expressed in this series of posts are solely those of the author and do not represent the Adult Congenital Heart Association.

Today, I’ll write about a tough question with an easy answer. The tough question: How much evidence do you need in order to sue the company that you believe caused your CHD? The easy answer: More than nothing.

Mary Fontenot had two children born in 1968 and 1970. Both children were born with congenital heart defects and required multiple surgeries. Mrs. Fontenot believed that the defects were caused by the progesterone she was given during both of her pregnancies. In 1983, she decided to sue the Upjohn Company, which manufactured the specific progesterone drugs she was given.

As the plaintiff, Mrs. Fontenot would need to prove at trial that there was a causal connection between use of the product and the injury. But trials are extremely expensive, and after the lawsuit was filed, Upjohn tried to end the lawsuit without going to trial by filing a motion for summary judgment.

Over the course of several months after the lawsuit was filed, Upjohn posed several questions in writing to Mrs. Fontenot’s attorney (called interrogatories). For example, they asked whether Mrs. Fontenot had any witnesses, such as the children’s doctors, who would testify that the defects were related to the use of the drug. They asked whether Mrs. Fontenot had any expert witnesses who could testify that the drug could cause congenital heart defects. Mrs. Fontenot’s response to the interrogatories: “Unknown at the present time.”

In fact, Mrs. Fontenot lacked even a trace of evidentiary material to support her claims. The court didn’t require much—they would have allowed the claim to move forward if Mrs. Fontenot had at least some evidence, either direct, circumstantial, or inferential, that could create an issue of fact. But Mrs. Fontenot didn’t have anything, and didn’t even ask for more time to gather evidence. As a result, the court granted the motion for summary judgment for the Upjohn Company. Mrs. Fontenot appealed the decision to the Fifth Circuit, which affirmed the motion. After a little over two years of litigation, the lawsuit was over without a trial, and Mrs. Fontenot walked away with nothing.

We don’t really know much about what happened beyond what was described in the Fifth Circuit opinion. Perhaps Mrs. Fontenot really did believe that Upjohn caused her children’s heart defects, and if it went to trial, the jury might have agreed. Perhaps Mrs. Fontenot was just trying to make an easy buck and scare the drug company into giving her a sizable settlement. We’ll never know.

At the end of the day, this is a tough issue for us in the CHD community. Growing up with a CHD is extremely challenging, traumatic, and expensive. Unlike other diseases (such as lung cancer), there is usually no clear, identifiable, and provable cause for our CHD. According to some sources, it is possible that CHDs could be caused by environmental factors, but in most cases, “there is no identifiable cause for the heart defect, and they are generally considered to be caused by multifactorial inheritance.” As a result, even if we think we can pinpoint one drug company that we suspect may have caused our CHD, it will usually be exceedingly difficult for any of us to gather evidence sufficient to survive a summary judgment motion and make it to a trial.

I’ll end with one last interesting note on the legal impact of the case. The Court of Appeals decision, Fontenot v. Upjohn, would go on to be recognized as the leading case within the Fifth Circuit explaining the evidentiary requirements necessary to survive a summary judgment motion. The decision has been cited thousands of times during the subsequent decades.

This blog post references Fontenot v. Upjohn, 780 F.2d 1190 (5th Cir. 1986).