More on Polybrominated Diphenyl Ethers
An earlier post took note of California's decision to ban fire-retardant PBDE's, and speculated that concern over their health risks might escalate in other venues. Now CBS News has picked up on the story. New studies apparently suggest that PBDE exposures may place unborn children at risk.
Firefighters, meanwhile, are piping up to say that the risks of death and injury from fire should also weigh in the balance. All very well and good, perhaps, in a simple risk-utility analysis. But what about allowing consumers to balance the relevant risks themselves? In other words, what about warning labels?
Warning labels have been grist for expert evidence in a few cases, but no clear and detailed standards for such testimony have emerged, and at least one commentator has wondered aloud whether the Daubert factors are really well-suited for the evaluation of such evidence. Some courts, forced to do their best, have felt it relevant to inquire whether the expert has himself drafted product warnings. See, e.g., Anderson v. Raymond Corp., No. 02-3393 (8th Cir. Aug. 13, 2003). But it may be doubted whether such experience can appropriately be demanded. Without knowing much about this niche in the American economy, one supposes that warning labels are commonly drafted by some combination of industry stalwarts and industry-retained attorneys, which would suggest that active practitioners in the warning-label-writing game may systematically tend to share certain biases. Meanwhile, there are situations where nobody has ever drafted a warning label, because the products that allegedly should bear one never have.
What, then, would qualify some expert to opine on whether products containing flame-retardant PBDE's should carry a warning, and what that label should say? Should this really be a matter of expert testimony at all, except for expert opinion about the underlying risks themselves?
Firefighters, meanwhile, are piping up to say that the risks of death and injury from fire should also weigh in the balance. All very well and good, perhaps, in a simple risk-utility analysis. But what about allowing consumers to balance the relevant risks themselves? In other words, what about warning labels?
Warning labels have been grist for expert evidence in a few cases, but no clear and detailed standards for such testimony have emerged, and at least one commentator has wondered aloud whether the Daubert factors are really well-suited for the evaluation of such evidence. Some courts, forced to do their best, have felt it relevant to inquire whether the expert has himself drafted product warnings. See, e.g., Anderson v. Raymond Corp., No. 02-3393 (8th Cir. Aug. 13, 2003). But it may be doubted whether such experience can appropriately be demanded. Without knowing much about this niche in the American economy, one supposes that warning labels are commonly drafted by some combination of industry stalwarts and industry-retained attorneys, which would suggest that active practitioners in the warning-label-writing game may systematically tend to share certain biases. Meanwhile, there are situations where nobody has ever drafted a warning label, because the products that allegedly should bear one never have.
What, then, would qualify some expert to opine on whether products containing flame-retardant PBDE's should carry a warning, and what that label should say? Should this really be a matter of expert testimony at all, except for expert opinion about the underlying risks themselves?
<< Home