Trafficking in Human Blood: Titmuss (1970) and Products Liability
15 Pages Posted: 26 Dec 2009
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Trafficking in Human Blood: Titmuss (1970) and Products Liability
Date Written: December 23, 2009
Abstract
Although this is not an “antitrust” article as such, it addresses an interesting and consequential factual situation in antitrust terms, thereby shedding light on the behavior of firms faced with an industry-wide business crisis. The article’s main purpose is to draw some conclusions about the appropriate rule governing liability for supplying defective blood. The story I recount, however, with the benefit of documents discovered in the course of personal injury litigation, deals with the plasma-fractionation industry’s response to the emerging HIV/AIDS crisis in the early 1980s. The concerted action I document, all aimed at keeping industry members on the same page in responding to a potentially dire public health emergency, is disturbing. Although no case law I know of treats conduct of this kind (much of it aided and abetted by the FDA) as an antitrust violation, this case history shows why antitrust enforcers and courts viewing collusion among competitors should not confine themselves to worrying only (or nearly only) about its effects on prices. The article provides some antitrust discussion explaining why I thought the evidence allowed me to opine, as an antitrust expert, that the industry’s conduct violated the Sherman Act.
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