From the Wrong End of the Telescope: A Response to Professor David Bernstein

Abstract

In this article the authors respond to Professor David Bernstein's critique of their article advocating that plaintiffs be allowed to claim emotional distress damages when drug manufacturers fail to warn them of uncertain risks. Thus, even if plaintiffs are unable to withstand a Daubert challenge to the claim that a drug caused physical harm if the plaintiff can establish that she would not have taken the drug if informed of uncertain risks, recovery should be allowed for deprivation of the right to autonomous decision making.

Professor Bernstein attacks the authors' thesis claiming that to allow a causation free cause of action would deliver a potent weapon into the hands of irresponsible plaintiffs' lawyers. He argues that in the case of the Bendictin litigation, such an action would have granted recovery for a drug ultimately proven to be safe.

In rebuttal, the authors argue that when Bendictin was originally marketed, there was good reason to believe that it could cause birth defects and that the plaintiffs' had a legitimate claim that they suffered serious emotional harm due to the deprivation of autonomy. That a plaintiff falls somewhat short in being able to prove causation under the structures of Daubert does not give drug manufacturers a license to withhold critical risk information from consumers. The authors also respond to Bernstein's contention that informed-choice warnings of uncertain risks would be of no value to consumers. Warnings that apprise patients that drug manufacturers have yet to assess the safety of a drug to certain categories of patients are likely to be taken seriously, especially with regard to lifestyle drugs.

Keywords: Torts, Informed Choice, Drugs, Daubert, Causation