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Friday, June 30, 2006

Other Presumption Ideas

Blog 702 raises a good question, citing my MIPR article [PDF]and presumably by implication my Point of Law piece on the same issue:

Shouldn't those advocating such a presumption [for, for example, nondefectiveness for FDA-approved drugs] also advocate, with equal zeal, a parallel presumption in favor of federal agency findings that support a generic causal link between some substance or product and disease -- e.g., the recent Surgeon General's Report linking second-hand smoke to various adverse health outcomes, even at the lowest exposures?

Yep.  I think I would, assuming that the determination is qualified (as I discuss in the Point of Law post but not the MIPR piece) properly -- essentially a Daubert showing related to the government's determination.  I would like to think more about it, but at first blush, it makes sense (and will probably show up in the paper I'm working on).

(Incidentally, I don't think I would classify myself as a "tort reformer," and I'm not sure Peter does classify me as such.  I'm not in the same camp on many, many issues as most folks who self-classify that way.)

http://lawprofessors.typepad.com/tortsprof/2006/06/other_presumpti.html

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Comments

Well, I'm enough of a nominalist that nobody gets called a "tort reformer," with or without the scare quotes, unless they self-classify.

Posted by: Peter Nordberg | Jun 30, 2006 6:05:37 PM

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