November 2005 Vol. 104 No. 2 THE REVIEW

Uncertainty and Informed Choice: Unmasking Daubert

Margaret A. Berger & Aaron D. Twerski

In toxic tort litigation, causation is the rub. Plaintiffs have, in large part, been stymied by their inability to establish that toxic agents, no matter how potentially dangerous, were actually responsible for the harms they have suffered. Their difficulties in this regard have increased exponentially since the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. With great frequency, plaintiffs have been unable to convince courts to admit expert testimony that a given agent was causally responsible for the plaintiff’s injury. Courts and scholars are in sharp disagreement as to the wisdom of Daubert and whether it has been fairly applied. The authors of this Article are not of one mind on either of the above issues. This Article is agnostic as to the controversy swirling around Daubert and its progeny. We proceed on the premise that significant changes in the doctrine are not in the offing. Plaintiffs will continue to lose toxic tort cases because they will be unable to establish causation. This phenomenon would not be troubling if there were not a recurring pattern of drug cases in which: (1) the causal relationship between the toxic agent and plaintiff’s harm is unresolved at the time of litigation and will likely remain unresolved; (2) the drug is not therapeutic but rather its purpose is to avoid discomfort or to improve lifestyle; (3) it is almost certain that a patient made aware of the risk that is alleged to be associated with consumption of the drug would have refused to take it; and (4) the defendant drug company was aware of the potential risk or should have undertaken reasonable testing to discover the risk and failed to provide the requisite information to the physician or patient.

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