Time for a Fresh Look at Strict Liability for Pharmaceuticals

Part I provides a brief and basic explanation of pharmaceutical liability treatment. Part II explains the impact of federal preemption doctrine, which has dramatically limited the operation of tort law in pharmaceutical liability cases. Part I11 explains the parallel trends in the marketing and use of pharmaceuticals that increase the incidence of adverse drug events, affect prescribing practices, and fail to enhance informed practitioner and consumer choice in use of pharmaceuticals. Part IV provides support for the application of strict liability given the convergence of these trends.

This Part also provides a theoretical justification for strict liability in tort for pharmaceuticals based in both traditional strict liability for ultra-hazardousness and modern norms of community expectations of responsibility and care particularly salient for pharmaceutical injuries.