Last week, the Supreme Court of California accepted review of a highly controversial California Court of Appeal opinion that the Wall Street Journal characterized as California “Invent[ing] a Crazy New Tort.”
In 2001, Gilead introduced a drug known as TDF, a highly effective drug that treats HIV/AIDS, but comes with risks of kidney and bone damage for some patients. Years later, Gilead released TAF, another HIV/AIDS drug that was a preferable option for some patients.
Patients who had taken TDF and experienced the warned-of side effects to their kidneys and bones sued Gilead, alleging that Gilead delayed development and release of TAF in order to maximize its profits from TDF. In their negligence action, the plaintiffs took the position that although TDF is not defective, Gilead had a duty to them to develop and release TAF because of the harms TDF could cause. Gilead moved for summary judgment, which the trial court denied. The California Court of Appeal accepted Gilead’s writ petition, finding in the plaintiffs’ favor. In its opinion, the Court of Appeal concluded that “a drug manufacturer, having invented what it knows is a safer, and at least equally effective, alternative to a prescription drug that it is currently selling and that is not shown to be defective, has a duty of reasonable care . . . to users of the current drug when making decisions about the commercialization of the alternative drugs.”
The Gilead decision caught the attention of manufacturers and industry groups, along with national media, concerned that the California Court of Appeal had created a new duty to innovate.
Gilead petitioned for review of the Court of Appeal’s decision and numerous industry and defense organizations submitted amicus letters in support of Gilead’s petition. Yesterday, the Supreme Court of California granted Gilead’s petition.
Bowman and Brooke is proud to have supported the Product Liability Advisory Council’s (PLAC) amicus advocacy in this matter through multiple amicus briefs and an amicus letter on behalf of PLAC supporting Gilead’s position in this litigation.