In January 2016, a 38-year-old man reported to a medical clinic in Iowa for a circumcision and was mistakenly given a vasectomy, rendering him infertile. Late last year, a jury awarded the man $2 million. Executive SummaryPraedicat’s Adam Grossman and David Loughran argue that the near-term prospect of the insurance industry facing large-scale product litigation for rising male infertility is low. First, they note that scientific research does firmly conclude that endocrine disruption triggered by compounds like bisphenols and phthalates found in plastics are linked to reduced sperm counts and other defects in spermatogenesis. In spite of that, there are major obstacles to third-party and fourth-party lawsuits, including difficulties in associating an individual’s infertility with a particular exposure and affixing damages, as well as the absence of state government costs.
This man’s sad story provides a backdrop to a larger public health issue regarding male infertility. Multiple studies have been published in the last five years showing that sperm counts in men have fallen by approximately 60 percent in the last 50 years while other measures of sperm quality show similarly troubling declines. Scientists studying this phenomenon have identified environmental exposure to commercial products, from cellphones to pesticides and plastics, as the leading candidates. Does this mean that the insurance industry faces the risk of a large-scale product litigation for rising male infertility?
In this article we explore some of the commercial drivers of infertility identified in the science and discuss the obstacles to litigation.
There are too many products being investigated for the harm, and specific defendants would be nearly impossible to identify, even in a “market share” sense.The top candidates for environmental drivers of infertility are the endocrine disrupting compounds (EDCs). EDCs span a wide range of substances used throughout commerce: bisphenols and phthalates in plastic; flame retardants in cars, electronics and furniture; perfluorinated compounds (PFAS) used to repel both water and oil; pesticide residues on our lawns and in our food; and heavy metals from a variety of sources. Obesogens (a topic we’ve previously discussed in these pages) also contribute to endocrine disruption because adipose tissue (making up fat cells and associated structures) is a prominent endocrine organ in its own right.