“Imposing liability for non-defective products would be devastating to manufacturers and consumers alike.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation
Click HERE for WLF’s brief.
(Washington, DC)—Washington Legal Foundation (WLF) today urged California’s First District Court of Appeal to review, and ultimately to overturn, a trial court ruling that advances a radical new theory of liability for manufacturers of non-defective prescription drugs.
The case arises from Gilead Sciences, Inc’s successful HIV/AIDS drug, tenofovir disoproxil fumarate (TDF). Plaintiffs allege injury from TDF but do not allege any defect with the design, manufacture, marketing, or labeling of TDF. In denying Gilead’s summary judgment motion, the trial court held that Gilead could be held liable in tort for not developing and selling tenofovir Alafenamide (TAF)—a completely different drug from TDF. To be clear, plaintiffs do not argue that Gilead should be liable for not implementing a reasonable alternative design of the same drug under well-settled California product liability law. Rather, they contend that Gilead should be liable in tort for not developing and selling an entirely different product.
As WLF explained in its amicus brief, the trial court’s theory of liability makes a hash of California tort law. Under longstanding principles governing product-based injuries, a concession that the product at issue is not defective should end the litigation. Eliminating the defect element from product-based claims would open the door to untethered liability and undermine product innovation. And because nothing in the trial court’s decision limits this new tort theory to prescription drugs, the ruling invites a torrent of abusive lawsuits against the manufacturers of other beneficial and non-defective products as well.