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

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met their obligation to warn about the dangers associated with taking the drug. In many instances it is clear that drug companies failed to warn about known dangers or negligently failed to adequately test drugs for dangerous side effects. Even if plaintiffs cannot meet the high burden of proving injury-causation, we contend that plaintiffs should be able to establish a cause of action for the failure of drug companies to provide the requisite information so that plaintiffs could make informed choices as to whether they wanted to expose themselves to the uncertain risk associated with the drug. We acknowledge that when plaintiffs cannot establish injury-causation, recovery for physical harm is inappropriate. However, a plaintiff deprived of informed choice has a legitimate claim for mental distress resulting from having lost the opportunity to refuse to subject herself to uncertain risk. In our article we set forth the template for this causation-free cause of action for the deprivation of choice.