(Almost) No Bad Drugs: Near-Total Products Liability Immunity for Pharmaceuticals Explained

96 Pages Posted: 20 May 2020 Last revised: 24 Jul 2020

Date Written: May 20, 2020

Abstract

This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom. These figurative pillars help support one-sided results in court. However, each of the pillars on examination turns out at least a bit shaky. This Article puts them forward for review to start a necessary discussion.

The locus of this Article is products liability, where a court concludes that a manufactured object is defective or could be called defective by a factfinder following a trial. Drug manufacturers enjoy near-immunity from this consequence. Modern products liability identifies three categories of product defect, and courts insulate drug manufacturers from responsibility for all three.

In clarifying an ill-understood state of the law, this Article holds back on overt condemnation of what it observes. Skepticism about the fit between products liability and prescription drugs certainly could be defended. Judges and juries competent enough to assess a more mundane product might be unsuited to the task of determining defectiveness of a prescription drug. Instead of lamenting the absence of products liability redress for injured drug consumers, this Article pursues transparency about what it reports.

The author argues that the current state of the law appears healthier than it really is because unexamined premises about the no-liability status quo sound plausible and soothing: Figurative pillars hold up a barely seen exception to accountability under the law. Prescription drugs look worthier of indulgence than other products because they purport to increase welfare beyond the satisfaction of individual preferences.

In contrast to other products that purport only to give buyers what they want, pharmaceuticals purport to give every one of us what we need. Judgments that transfer money to individuals at the expense of a savior-sector seem perverse. From there, a deferential-to-manufacturers consensus has emerged and holds steady.

Suggested Citation

Bernstein, Anita, (Almost) No Bad Drugs: Near-Total Products Liability Immunity for Pharmaceuticals Explained (May 20, 2020). Washington and Lee Law Review, Vol. 77, p. 3, 2020, Brooklyn Law School, Legal Studies Paper No. 637, Available at SSRN: https://ssrn.com/abstract=3606661

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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