Distributive Justice in Pharmaceutical Torts: Justice Where Justice Is Due?

Ongoing tort reform efforts attest to the significant burden that medical liability imposes on the health care system. General attempts to curb excesses can narrow socioeconomic disparities, but as Clark Havighurst and Barak Richman observe, such measures may leave intact some of the regressive characteristics of the framework they supplant. Therefore, it seems appropriate to question whether tort law offers a proper platform for distributive justice. Would restrictions or other changes in medical liability unduly sacrifice individual justice for corporate justice? Would solutions outside tort law enhance distributive justice as—or perhaps more—effectively, while still giving each person his or her due? To help resolve these questions, this article continues where Havighurst and Richman left off with medical malpractice. Part II revisits their suggested reforms to show how a tort-centered approach might aggravate socioeconomic disparities without dramatically leveling the playing field. Parts III through V of the article explain why pharmaceutical litigation again teaches that discretion may be the better part of valor when it comes to amending tort law for the sake of distributive justice. Although it is difficult to determine how the billions of dollars in products liability translate in terms of additional burdens on the health care system, further scrutiny is warranted before overarching pronouncements are made about the progressive or regressive tendencies of medical torts, considering the sheer scale of mass pharmaceutical litigation. Accordingly, Part III first discusses how traditional perceptions of class actions