This Article will first examine why it is that plaintiffs have been unable to prove causation under the Daubert guidelines in toxic tort litigation. Second, it will look at the two existing models for informed choice litigation medical malpractice and products liability-and demonstrate why neither of these models gives toxic tort plaintiffs a fair opportunity to recover for the deprivation of patient autonomy against drug manufacturers who have breached their duty to warn of known or knowable risks. Finally, this Article will explore the elements of a causation-free informed choice cause of action. It will suggest the appropriate standard for defining materiality of risk in informed choice where the goal is to protect patient autonomy, and having established the substantive right to recovery, the Article will then suggest a measure of damages for depriving the patient of her right to autonomous decisionmaking.
Margaret A. Berger & Aaron D. Twerski,
Uncertainty and Informed Choice: Unmasking Daubert,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol104/iss2/14