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This book examines how regulatory and liability mechanisms have
impacted upon product safety decisions in the pharmaceutical and
medical devices sectors in Europe, the USA and beyond since the
1950s. Thirty-five case studies illustrate the interplay between
the regulatory regimes and litigation. Observations from medical
practice have been the overwhelming means of identifying
post-marketing safety issues. Drug and device safety decisions have
increasingly been taken by public regulators and companies within
the framework of the comprehensive regulatory structure that has
developed since the 1960s. In general, product liability cases have
not identified or defined safety issues, and function merely as
compensation mechanisms. This is unsurprising as the thresholds for
these two systems differ considerably; regulatory action can be
triggered by the possibility that a product might be harmful,
whereas establishing liability in litigation requires proving that
the product was actually harmful. As litigation normally post-dates
regulatory implementation, the 'private enforcement' of public law
has generally not occurred in these sectors. This has profound
implications for the design of sectoral regulatory and liability
regimes, including associated features such as extended liability
law, class actions and contingency fees. This book forms a major
contribution to the academic debate on the comparative utility of
regulatory and liability systems, on public versus private
enforcement, and on mechanisms of behaviour control.
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