August 29, 2005

Michael Kinsley shows a lot more common sense than one normally sees on the editorial page:

You may be under the impression that Merck did something terribly wrong in putting Vioxx on the market. But the Vioxx cases don't generally claim that. Instead, they are based on the last refuge of the tort lawyer: the "duty to warn." Any product carries some risk. If you slice up a beach ball, sauté it, and eat it, the consequences could be dire. But even the world's greatest lawyer would hesitate to argue that this is the fault of the beach ball manufacturer. That doesn't mean the lawyer won't take your case. He or she will take it and argue that the manufacturer should have warned purchasers that beach balls are not edible, cooked or raw.

The duty to warn is one of the law's great celebrations of hindsight. When something actually has gone wrong, it is hard to argue (especially to a jury) that this development is too unlikely to worry about. And it is nearly impossible to argue that consumers shouldn't be given information to decide for themselves. Speaking for myself, I set aside one day a month exclusively for reading all the warning labels on products I have bought, such as beach balls. Then I assess whether the risk I am undertaking exceeds the benefit I hope to achieve. But I wonder how many of my fellow citizens are so scrupulous.

I wonder, in particular, how likely it is that Carol Ernst's husband would even have noticed such a warning, on the side of the box or bottle or speed-mumbled during one of those eerily atmospheric TV commercials for prescription drugs. Or, if he noticed it, would he have acted? It might have saved his life, but only in the way that deciding to take a later flight has saved your life when the earlier plane crashes. There is no actual connection.