Enhancing Drug Effectiveness and Efficacy Through Personal Injury Litigation

51 Pages Posted: 3 Jun 2007

Date Written: May 31, 2007


For decades, personal-injury liability for the harms that prescription drugs cause has languished, unloved among legislatures and commentators. A near-consensus frets about overdeterring manufacturers; writers fear that lawsuits drive valuable pharmaceutical products from the American market. Even though confidence in FDA oversight - the main alternative to liability as a source of consumer protection - is in decline, few express concern about the possibility of underdeterrence.

Without denying that the costs of personal-injury liability might threaten the supply of prescription drugs, this article, first presented to an audience of state and federal judges in November 2006, looks at what judges (especially judges who try cases in state courts) can do to strengthen liability as a check on the harms that these products inflict on consumers. It invites courts to help enforce an entitlement to effectiveness, just as they now help enforce an entitlement to safety.

Suggested Citation

Bernstein, Anita, Enhancing Drug Effectiveness and Efficacy Through Personal Injury Litigation (May 31, 2007). Emory Public Law Research Paper No. 07-13, Emory Law and Economics Research Paper No. 07-12, Available at SSRN: https://ssrn.com/abstract=990431 or http://dx.doi.org/10.2139/ssrn.990431

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-7934 (Phone)

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