Responsabilidade pelo fato do produto tóxico no direito nos Estados Unidos e no Brasil

Abstract

Consumer Law - a field of law that studies and provides legal responses to damages caused by defective products - faces challenges imposed on products conceived nowadays in a massified, industrialized and global risk-taking society. From this perspective, the scenario of toxic products faces a new dilemma of Consumer Law: how to act in the present, given the uncertainty and unpredictability of the consequences and adverse effects of a product, through a formula of legal certainty? This study addresses the following research problem: what are the appropriate standards to adopt in verifying the causal link in cases involving responsibility for the fact of the toxic product? To this end, it intends to establish the legal bases for obtaining answers in a context of scientific uncertainties concerning the problem of causes and effects of toxic substances. The comparative study of the laws of the United States and Brazil on the subject and also on the cases related to the drug Vioxx and the asbestos substance judged in both countries was promoted. It was also chosen as a method of approach by the pragmatic-systemic methodology, which allows the realization of second order observations, and with this, the description of the operability of other systems of society beyond Law, such as the Science system. The product liability related to toxic product in Brazilian Consumer Law advocates a new way for legal operators to access the causal nexus based on probabilistic judgments, taking into account the broadening of the dialogue with scientific studies for the measurement of scientific sufficiency, the causal inference and the differentiated role of the experts, both in the specialization and in the methodology used. The design defect and failure to warn, therefore, encompasses new contours and thus requires an increase in the duty of diligence on the part of the supplier, since, as an expert in the product, he should act as the main interested in unveiling and accompanying scientific studies on the adverse effects of the product on human health.