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Learning The Wrong Lessons From "An American Tragedy", David Bernstein
Learning The Wrong Lessons From "An American Tragedy", David Bernstein
Law & Economics Working Papers Archive: 2003-2009
This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert,” forthcoming in the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects.
Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it …