“Womenfolk Come Cheap”: Radium Girls & Their Modern Counterparts

“They shoot to kill when it comes to cattle thieves in Illinois,” wrote Mary Doty in the Chicago Daily Times in 1936, “and fish and fowl are safeguarded by stringent game laws–but womenfolk come cheap.”*

Radium Girls, by Kate Moore, features the experiences of women who were exploited and ultimately sacrificed for profit by the corporations that employed them. These companies, the United States Radium Corporation in New Jersey and Radium Dial in Illinois, made watches and instrument dials that glowed in the dark, an important feature during the First World War. While men fought, women supported the war effort in other ways, including by filling the need for dial painters.

These young women applied the luminous, radioactive paint to the dials by putting the brushes — and also the radium (or its isotopes) — in their mouths. It was a glamorous, prestigious job, paying more than others available to women at the time, until it killed them. With the radioactive materials settling in their bones, many women suffered anemia, debilitating pain, fractures, sarcomas, and eventually death.

Despite mounting evidence that Moore details in the book, the companies refused to admit responsibility for the harms their employees suffered.

And so a lengthy battle in the courts, legislatures, and press ensued. Moore does a great job of describing the companies’ vicious and deceptive attempts to thwart justice for these women as they died, one by one, often in their 20s and 30s. Unsurprisingly, their plight did not receive the attention it deserved until radium poisoning started killing off men too. “The cynical,” as Moore writes, “would say there was only one reason a high-profile specialist [the Chief Medical Examiner] finally took up the cause. On June 7, 1925, the first male employee of the United States Radium Corporation died.”

Call me cynical.

The Radium Girls lived and died almost a century ago, but gender disparities in the administration of justice remain a persistent problem. Recently, when I watched the Netflix documentary, The Bleeding Edge, I kept thinking about the parallels to the Radium Girls. The Bleeding Edge concerns faulty medical devices, not occupational hazards like the Radium Girls experienced, but it highlights the relentless disregard of women’s safety for the sake of corporate greed.

The Bleeding Edge focuses on four defective medical devices, three of which disproportionately harm women: transvaginal mesh, Da Vinci surgical robot (used for hysterectomies among other procedures), and Essure (a contraceptive inserted into the fallopian tubes, not that it always makes it there or stays there).

The documentary exposes the way medical device companies like Bayer and Johnson & Johnson manipulate clinical trials and subvert regulatory controls to flood the market with defective products that often harm women. What the documentary doesn’t address, as Max at Litigation and Trial points out, are the challenges in the court system these women face when they try to hold the companies accountable for harming them. He writes:

One issue The Bleeding Edge did not go into, however, was the many legal hurdles put in place to prevent patients injured by defective medical devices from bringing lawsuits. The Bleeding Edge follows several women whose lives were destroyed by Essure. They likely qualify for lawsuits and probably have them — but Bayer has still refused to settle Essure lawsuits and among the reasons why are the many dubious legal defenses available to them.

Bayer is a modern-day Radium Dial, using every trick in the book to deny justice to the women they’ve harmed. Just as the radium corporations tried to kick the women’s cases out of court, claiming that the cases were time-barred regardless of when the women discovered the harm, Bayer and other medical device companies try to kick plaintiffs’ cases out of court not on the merits of each claim but on a technical argument that the cases are “preempted” (prohibited) from being filed at all. Preemption, in which the defense is that lax federal law prevents state tort lawsuits from proceeding, gives corporations carte blanche to harm us without ever being held responsible for it. Check out Max’s post (linked above) for more on this legal tactic.

In the cases that overcome preemption efforts and other strategies to block plaintiffs from the courtroom door, plaintiffs continue to face challenges in an uneven justice system set up for corporate defendants with ample resources. The challenges are particularly problematic for women, as Lara Bazelon’s recent piece in Atlantic highlighted inadvertently.

Bazelon’s article, What it Takes to be a Trial Lawyer if You Are Not a Man, is about the hurdles women lawyers face in a sexist system, but her piece hints at the fact that among the groups who have it even harder than female lawyers in the justice system are female plaintiffs.

The plaintiffs in transvaginal mesh cases are women, and Bazelon’s sister received the opportunity to sit on a jury in Philadelphia in one of these cases against Ethicon, a subsidiary of Johnson & Johnson.** The jury Bazelon’s sister was on found Ethicon had been negligent and that the product was faulty, yet inexplicably also found the faulty device didn’t cause the woman’s injuries, an issue that wasn’t even disputed, giving the judge no choice but to overrule the jury’s inconsistent verdict — something judges rarely do. How did Bazelon explain the jury’s decision to ignore the plaintiff’s harm despite finding that Ethicon’s device was defective?

According to the article: “In a case involving complicated issues relating to female genitalia, my sister said, ‘I trusted [Ethicon’s female lawyer] more because she was a woman.’”  Apparently, this female juror identified with the privileged female lawyer but not with the injured female plaintiff. It’s a disturbing result.

This case is now on appeal (Here’s the docket). If the appellate court reinstates the jury’s inconsistent verdict, the lesson will be that “womenfolk come cheap” and so their injuries aren’t worth compensation.

__________________________

*As quoted in Radium Girls by Kate Moore.

**Ethicon is similar to Versifier in Amelia Elkins Elkins, my retelling of Jane Austen’s Persuasion that focuses on a modern version of Anne Elliot and her quest for justice for her mother. For that novel, I researched the mesh cases and received guidance from a lawyer involved in those cases (I’m also a lawyer, but I represent plaintiffs in civil rights cases). Many of these cases have resulted in verdicts against the medical device companies, as it should, but the process has not been an easy one for plaintiffs. There are still many cases ongoing that were filed over five years ago.

***I read Radium Girls as part of the Nonfiction Reading Challenge hosted by Katie at Doing Dewey.

12 comments

  1. A really interesting and unsettling post. A while ago, I applied for a job working for the MHRA (who regulate medical devices in the UK). I want to work for them eventually, so I’ve been watching this case unfold fairly closely both in the EU and the US. It’s extremely naive of me, but I hadn’t really registered the way that gender is intersecting with the legal process until I read this – the comparison to the radium dials is very apt.

  2. Great post and a good tie in with the previous one you wrote. I always enjoy reading from you although do not always comment. My heart hurts for our country, but I believe in a positive future and will think of nothing less although cognitive of a long road ahead that remains very bumpy.

  3. I’m not even sure what to say, except this post scares me. Actually, many of your posts scare me because I don’t really understand a lot about law, and the more you teach me the more I realize things don’t really seem designed to help an individual. I just have to wonder at what point corporations really took over and left the rest of us in the dust. I can’t wait to read your reimagined version of Persuasion, Amal!

    1. Yeah, this isn’t an uplifting post, but I am optimistic that we can curb the power of corporations. Otherwise, I wouldn’t do the work I do (much of it relates to fighting the preemption campaigns of corporations that are trying to take away labor regulation and anti-discrimination law). Currently, our system is designed for the wealthiest members of our society–and their corporate entities–to succeed, and the way our highest court has interpreted the Constitution allows corporations to use the Bill of Rights as a weapon to increase inequality.

      For example, in the Janus case (decided last June), which was funded by corporate interests, the Supreme Court concluded that requiring nonmembers of public unions to pay a fair share fee violates the First Amendment (even though these nonmembers in otherwise unionized public workforces benefit from the services the unions provide). The case overturned 40 years worth of established law. These days, the First Amendment protects corporations, not people, and the effect of the Janus case will be to increase the power of corporations at the bargaining table.

      It’s disgusting, and the only way to change it is to educate the voting public on the power corporations have on lawmakers. We have to vote them out. My job is nonpartisan, and I would never endorse a candidate or political party while working, but that’s part of why I write this blog under a semi-pseudonym. This blog has nothing to do with my employer and I’m not in the office today, and so I will freely say that while both parties have ties with corporations, Democrats are far more likely to support the rights of individuals over corporations than Republicans are. Most legislative preemption efforts and attempts to roll back class actions and the right to seek redress through the courts come from Republicans (HR 985, sponsored by Rep. Goodlatte, is one example of trying to take away our right to a fair trial: https://misfortuneofknowing.wordpress.com/2017/02/17/lawmakers-want-to-take-away-your-right-to-a-fair-trial-stophr985/).

      As for when corporations “really took over and left the rest of us in the dust,” I’d say that we made progress after the Radium Girls’ time, but that the rollback started with Reagan (de-regulation, union busting, and judicial appointments). It’s only gotten worse with judicial appointments from the Bushes and now Trump. Thankfully, in our federal system, our best protection from the federal government is our other levels of government. As a result, depending on the state, the state courts are sometimes better than the federal courts for protecting the rights of individuals. *Sometimes*

      Thanks for grabbing a copy of Amelia Elkins Elkins. I hope you enjoy it!

        1. Yes! Local elections are incredibly important. In my state, which has an awful state legislature due to gerrymandering, our biggest city does its best to pass fair economic policies (as well as other laws that are incredibly important to counter the Trump Era) and municipalities across the state have filled in gaps in our federal and state anti-discrimination laws (the Chamber of Commerce typically opposes the expansion of these protections). In addition, for lawmakers, local government is often the path to future positions of power at other levels of government. Voting for everything, including for school board, is important.

  4. As long as men are in power, women will always be regarded as irrelevant. One wonders: if females were in power, would they treat men as badly as men treat women?

    1. It’s a good question. As part of my legal work, I represent people in gender discrimination cases, and often my female plaintiffs/complainants suffered discrimination from other women. These female supervisors aren’t any better than male supervisors, all of them imposing norms and policies developed in a patriarchal, white supremacist system. Having women and people of color in power is an important step, but the norms of the system they are part of need to change too.

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