Perhaps no editorial page in the country--and certainly none of remotely comparable influence--is as opposed to reforming America's litigation system as is The New York Times. Would that the editorialists at the Gray Lady read an article that jumped out at me in that paper's Sunday Magazine last weekend. Entitled "Protect or Disinhibit?" the article details how the AIDS drug tenofovir, marketed as Viread, has shown some success as a prophylaxis against HIV in trials with monkeys and has anecdotally gained a following in underground use. Now, "[p]lacebo-controlled trials are enrolling 5,000 people on four continents who are in high-risk groups, including gay and bisexual men, sex workers and injecting drug users."
Sounds great, right? Well, yes, but here's the rub: "In part because the prospect of harming a healthy person raises formidable liability issues for Gilead Sciences, tenofovir's manufacturer, the company says it has no interest in marketing the drug as a prophylaxis, even if trials prove that it works."
Peter Huber in Liability long ago argued that our liability system can cost more lives than it saves. As The New York Times Magazine article notes, the human cost imposed by our liability system can be profound indeed: "Optimistic mathematical models [that do not account for behavioral changes stemming from the presence of a prophylaxis] show that if tenofovir PrEP is effective 90 percent of the time and is used by 90 percent of the people who are at highest risk of becoming infected, it could cut new H.I.V. infections in a community by more than 80 percent in a few years."