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Can I Sue Plan B for Not Working?

By Steven Ellison, Esq. on August 05, 2022 12:05 PM

Since the U.S. Supreme Court overturned Roe v. Wade, women across the country have been stocking up on emergency contraception, commonly known as "Plan B" or the "morning-after pill." Demand has been so high that many retailers, including Amazon, have limited purchases.

Which raises a question: What if it doesn't work? Suppose you take Plan B and you still get pregnant — can you sue to hold the manufacturer responsible?

Actually, depending on where you live, you can.

What Is Plan B?

Plan B is actually a particular brand of emergency contraception. It comes in a single-dose tablet that you take within 72 hours after having sex (if you take it within 24 hours, it is even more effective). According to the manufacturer, about seven out of every eight women will not become pregnant if they take Plan B as directed. You don't need a prescription or to show proof of age to get it.

Plan B is not:

  • As effective as regular contraception and should not be used as your regular form of birth control (hence the name, "Plan B")
  • An abortion pill and will not cause a miscarriage (if you are already pregnant, Plan B will not work)
  • Protection against HIV/AIDS or other sexually transmitted diseases

What Would Your Lawsuit Be?

Many (but not all) states let you sue for what's called "wrongful conception" or "wrongful pregnancy." This typically comes up in the case of someone getting pregnant following a sterilization procedure such as a vasectomy or a tubal ligation, but the same reasoning applies in the case of birth control (like the pill or a condom) or emergency contraception.

Many courts have determined that people have a right to decide whether they are ready to have a family and that if a method of birth control fails, they should be able to go after whoever's responsible. If you had a failed sterilization procedure, that may be the doctor. If the condom breaks or oral contraception (including emergency contraception) doesn't work, it may be the manufacturer.

Most wrongful conception cases against product manufacturers involve three legal claims:

  • Strict liability
  • Negligence
  • Breach of Warranty

Let's go through these.

Strict Liability

The advantage of a strict liability claim is that you don't have to prove that anyone is at fault for your pregnancy. Instead, you need to prove that the Plan B you used was defective and, because of the defect, you got pregnant.

A product can be defective in three ways:

  • Design: The product is designed in a way that presents an unreasonable risk of harm (or, in the Plan B case, pregnancy)
  • Manufacturing: The design's okay, but something went wrong during the manufacturing process that presents an unreasonable risk of harm
  • Warning: The warnings included with the product are inadequate

If you can show that the emergency contraception you used was defective in one of these ways, you would have a claim against the manufacturer if you got pregnant.

Negligence

negligence claim is often harder to prove than a strict liability claim. To win a negligence claim, you generally have to show that the manufacturer failed to act as a "reasonably prudent person," meaning that they were careless in the manufacture and sale of your emergency contraception. It's not enough to show that you took the pill and still got pregnant; One out of eight women get pregnant despite using Plan B as directed.

You would have to prove that someone did something wrong. This typically takes lawyers a lot of digging through the company's business records. It's time-consuming and expensive, but there are all sorts of ways a company can be negligent (and some of those ways may support your strict liability claim). For example, one way a company may be negligent is by failing to adequately warn of the risks associated with the product.

Breach of Warranty

breach of warranty claim has its roots in contract law. In most cases, the sale of a product carries certain warranties. A warranty is a promise that the product will meet certain identified quality standards and will perform in a certain way. If the product doesn't meet those standards, the manufacturer is said to have "breached" its warranties.

There are two types of warranties: express and implied. An express warranty is a written or spoken guarantee of quality and reliability. Implied warranties are not written or spoken but go along with the product by law. A manufacturer of emergency contraception impliedly guarantees that the product will work as claimed and, if the parties agree, is fit for a particular purpose.

There is a lot of overlap among strict liability, negligence, and breach of warranty claims. Sometimes the same evidence can be used to prove each claim.

What Could You Get?

If you win your wrongful conception case, you may be able to recover actual damages. This phrase refers to money that the law will award to compensate you for any losses you sustained.

In general, that would include the losses directly associated with the pregnancy and the birth, such as medical expenses and, in some states, emotional distress. However, most courts refuse to allow parents to recover the cost of raising the child.

In rare cases, you may be able to recover punitive damages. Punitive damages are not intended to compensate you for losses. Instead, they are intended to punish a wrongdoer for extreme and outrageous behavior and to deter them and others from doing it again.

Get a Good Lawyer

Wrongful conception cases are challenging to win. You have to persuade a judge and, ultimately, a jury that you are not the one woman in eight who will still get pregnant, even if Plan B works the way it's supposed to. And if you can get over this hurdle, you still have to come up with proof that the product is defective or the manufacturer did something wrong.

If you find yourself in the position of an unwanted pregnancy after taking Plan B, consider speaking with a products liability attorney in an area near you (after you see your physician, of course). They can give you legal advice about your situation and help you better understand whether a lawsuit in your case is worth it.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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