by Alexandra Lahav (UConn)
Abstract
This Article explains how common law judges can respond to situations in which a public good that is a necessary predicate for determining liability does not exist. To bring a products liability or environmental harm case, plaintiffs must prove that the product or chemical has a propensity to injure people and that it injured them. But studies demonstrating these facts are too costly for plaintiffs to fund. In many mass tort cases, it is in the defendant’s interest not to conduct studies of the risks associated with chemicals or medical devices and, even when conducting such studies, it is in the defendant’s interest to limit or manipulate research to avoid findings that their products pose a danger to consumers. Government would be the natural producer of such studies, but it does not fund or conduct enough of them. As a result, even if a plaintiff was injured by a toxin or product, where the defendant chose to hide its head in the sand rather than test, she cannot prove this was the case. She may lose even where there is evidence the defendant engaged in misconduct to prevent or hide research into its products. This Article proposes a second-best solution to this problem: a knowledge remedy which requires a defendant found to have engaged in misconduct to fund independent studies into what risks its products impose.
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