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    02.22.18 Health Law Symposium Explores Liability for Defective Drug and Medical Device Design
    Drug and Med Device

    Since the advent of the modern products liability era, courts have had difficulty with claims alleging that drugs or medical devices were defectively designed. Distinguished scholars and practitioners in the area of products liability gathered at the Law School in February to explore issues related to such claims and discuss the most recent case law on the subject.

    Moderated by Professor Aaron Twerski, the Irwin and Jill Cohen Professor of Law and a preeminent authority in the fields of Products Liability and Torts, the symposium examined the role that the federal government may play in resolving what standard must be met to allow for a drug or medical device design case to proceed. The event was sponsored by the Law School’s Center for Health, Science and Public Policy and Arent Fox LLP.

    Dean Nick Allard introduced the event and highlighted Twerski’s tremendous influence. “Professor Twerski is a giant in the fields of Products Liability and Tort law,” he said. “His influential and award-winning scholarship is recognized not only by his colleagues in the academy, but by the judges, practitioners, and students, who continue to be the beneficiaries of his wisdom and brilliant teaching.”  

    “We need to understand why we’re in this business of trying to figure out design defects in drugs,” Twerski said. “There are two reasons that plaintiffs are pushing the design issue: One is the fact that plaintiffs bring their case on a failure to warn [about potential problems]. The other situation is where there has been very adequate warning, and the contention is that the drug should never have been on the market.”

    Presenting with Twerski were Anita Bernstein, the Anita and Stuart Subotnick Professor of Law; Mark Geistfeld, Sheila Lubetsky Birnbaum Professor of Civil Litigation, NYU School of Law; Paul D. Rheingold, Founder and Of Counsel, Rheingold, Giuffra, Ruffo & Plotkin LLP; and Catherine M. Sharkey, Crystal Eastman Professor of Law, NYU School of Law.

    Panelists presented on diverse aspects of defective drug and medical device claims and discussed the pros and cons of the Third Restatement of Torts, which consists exclusively of product liability rules and commentaries that shape the prevailing legal principles in this area. Topics included a plaintiff litigator’s view of liability claims, emerging preemption issues in pharmaceutical litigation, issues with the Restatement’s test for prescription drug design defect, and the rationale for comment k.  

    “This program represents the best of what Brooklyn Law School’s Center for Health, Science and Public Policy has to offer—programs that generate new ideas and thinking,” said Professor Karen Porter, the Center’s executive director. “We are particularly excited to bring scholars and practitioners together to think about thorny issues in the law and work toward solutions that improve the quality of health care services and health outcomes for the public.”

    View the full agenda.
    Watch the symposium here.