Design Defects in Prescription Drugs: Intersections of Law and Science in American Products Liability Law

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Book Chapter


Many have been bewitched, bedazzled, and bewildered in attempting to figure just how the principles of products liability should be applied to prescription drugs.1 Whether and how prescription drugs should be treated differently from other types of products has consumed more time and effort, and resulted in the gnashing of more teeth, than about any other particularized issue in all of American products liability law. In addition to featuring two prominent Restatement provisions – comment k to § 402A of the Restatement (Second) of Torts and § 6 of the more recent Restatement (Third) of Torts: Products Liability – the drug liability story wends through two of the most prominent cases in products liability law history: Feldman v. Lederle Laboratories 2 and Brown v. Superior Court,3 which separately established in American law that principles of foreseeable risk and negligence, rather than “strict” liability, are the proper bedrocks of responsibility for manufacturers of pharmaceutical drugs.