“Imposing liability for designing 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)—Yesterday, Washington Legal Foundation (WLF) urged California’s First District Court of Appeal to overturn a trial court ruling that advances a radical new theory of liability for manufacturers of non-defective prescription drugs. WLF joined the U.S. Chamber of Commerce, the California Chamber of Commerce, and the Alliance for Automotive Innovation on the amicus brief, which was drafted with the pro bono assistance of Ilana Eisenstein and Justin Sarno of DLA Piper LLP.

The case arises from Gilead Sciences, Inc.’s successful HIV/AIDS drug, tenofovir disoproxil fumarate (TDF). Although the plaintiffs allege injury from TDF, they allege no 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 simply for not developing and selling tenofovir Alafenamide (TAF)—a completely different drug from TDF. To be clear, the 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.

The amicus brief explains why 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 ruling limits this new tort theory to prescription drugs, the decision invites a torrent of abusive suits against the makers of other beneficial and non-defective products. Ultimately this will harm the public at large, who will have access to fewer products and will have to pay more for existing products.