Uncertainty and Informed Choice: Unmasking Daubert

36 Pages Posted: 31 Mar 2005

See all articles by Margaret A. Berger

Margaret A. Berger

Brooklyn Law School (Deceased)

Aaron Twerski

Brooklyn Law School


Proving causation in toxic tort cases has become exponentially harder for plaintiffs since the Supreme Court's Daubert trilogy. Many plaintiffs find themselves out of court after the trial court judge excludes their expert testimony on causation and grants summary judgment to the defendant. This article argues that finding that the plaintiffs' cases have no merit whatsoever is misguided in one recurring class of cases. In these cases the drug is not therapeutic - it seeks to ameliorate discomfort or to improve lifestyle - and, at the time it was prescribed, suggestive signals existed, such that the manufacturer knew or should have known that substantial risk accompanied consumption of the drug. In such instances, it is almost certain that a plaintiff would have refused to take the drug had she been advised of the potential risk. That a toxic drug cannot be proven to have definitively have caused a harm, does not mean that plaintiffs should be deprived of the right to choose whether they wish to subject themselves to the material risk of that harm actually taking place.

The authors argue that the existing theories recognizing liability for failure to provide informed choice are inadequate. They suggest a new paradigm for an informed choice cause of action that protects the right of patient autonomy yet does not impose liability for the full extent of damages awarded when plaintiff is able to prove causation. Absent recognition of a right predicated on informed choice, plaintiffs will be deprived of vital information necessary to make critical decisions regarding lifestyle drugs, and pharmaceutical manufacturers will have little incentive to discover and warn about uncertain risks. With causation standing as a barrier to recovery, they will sit back confident that liability is highly unlikely to attach to their conduct, even when it is clearly negligent. Adoption of this new cause of action promotes both the corrective justice and efficiency goals of the law of torts.

Keywords: torts, products liability, medical malpractice, pharmaceuticals, causation, evidence, Daubert

JEL Classification: K14, K42

Suggested Citation

Berger, Margaret A. and Twerski, Aaron D., Uncertainty and Informed Choice: Unmasking Daubert. Michigan Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=695502

Margaret A. Berger (Contact Author)

Brooklyn Law School (Deceased)


Aaron D. Twerski

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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