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THE BHOPALIZATION OF AMERICAN TORT LAW 110 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. 12. Other contributions to the debate include C. Perrow, Living with High-Risk Technologies (1984); Bazelon, Science and Uncertainty: A Jurist's View, Harvard Environmental Law Review 5:209 (1981); Bogen, Public Policy and Technological Risk, 1980 Idea 37; Cohen, Innovation and Atomic Energy: Nuclear Power Regulation, 1966âPresent, Law & Contemporary Problems 43:67 (1979); Kraus, Environmental Carcinogenesis: Regulation on the Frontiers of Science, Environmental Law 7:83 (1976); Merrill, Risk-Benefit Decision making by the Food and Drug Administration, George Washington Law Review 45:994 (1977); Pierce, Encouraging Safety: The Limits of Tort Law and Government Regulation, Vanderbilt Law Review 33:1281 (1980). 13. Restatement (Second) of Torts, §288C (1965). 14. Section 25(a) of the Consumer Products Safety Act provides: "Compliance with consumer product safety rules or other rules or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person." 15 U.S.C. §2074(a) (1982). 15. The Supreme Court, for example, recently let stand a $4.75-million damage award against a manufacturer of a birth control pill in a suit brought by a women whose kidneys had failed after several years of using the drug. The manufacturer challenged only the $2.75 million in punitive damages that were awarded notwithstanding its complete compliance with regulatory requirements imposed by the FDA. Ortho Pharmaceutical Corp. v. Wooderson, 235 Kan. 387, 681 P.2d 1038, cert. denied, 105 S. Ct. 365 (1984). 16. The morning-sickness drug Bendectin, for example, continues to enjoy FDA approval; there is no scientifically credible evidence that Bendectin does anything except what it is supposed to: relieve the misery of morning sickness that can threaten the health of both mother and child. But Bendectin became such a popular target for tort lawsuits that its manufacturer withdrew the drug (the only such drug on the American market) and submitted to a $120-million class action settlement. This prompted even the New York Times, not known for its conservative views on risk-regulatory matters, to editorialize: "With Bendectin . . . the law has made a devastation and called it a settlement" (N.Y. Times, July 30, 1984, A20). References Chayes, A. 1976. The role of the judge in public law litigation, Harvard Law Review 89:1281. Fletcher v. Bealey, 28 Ch. 688 (1885). Huber, P. 1985. Safety and the second best: The hazards of public risk management in the courts, Columbia Law Review 85:277, 317â320. Huber, P. 1984. The market for risk, Regulation (March-April): 33. Kitch, E. W. 1985. Vaccines and product liability: A case of contagious litigation. Regulation vol. 9, no. 3 (May-June):11â18. Rosenberg, D. 1984. The causal connection in mass exposure cases: A "public law" vision of the tort system, Harvard Law Review 97:851. Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir. 1973). U.S. Environmental Protection Agency. 1983. Background Report for the Indemnification Report to Congress. Office of Pesticides and Toxic Substances. Washington, D.C. Yellin, J. 1981. High technology and the courts: Nuclear power and the need for institutional reform, Harvard Law Review 94:489.
