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Consider this scenario. A drug manufacturer develops a new product, then spends a billion dollars or more to satisfy the Food and Drug Administration that the drug is safe and effective. The FDA spends many years analyzing this data, including a review by outside experts, and finally permits the company to market the drug under a carefully formulated label describing the drug’s uses and risks. A consumer of the drug becomes ill and sues the manufacturer. She alleges that the drug is defective and its labeling inadequate and demands massive compensatory and punitive damages. Both the drug and the label comply with all of the FDA’s rules, and no new risks have come to the attention of the agency or manufacturer, yet a jury finds the company liable. A month later, another jury in a different state dismisses an essentially identical claim, upholding both the drug and its labeling.

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