This op-ed was published by Daily Journal
The California Supreme Court has a chance to bring some sanity back to the state this month as it reviews a case involving a company that was sued because they didn’t release a new product quickly enough.
The California Court of Appeal found that even if a product is not defective or unreasonably dangerous, a company can be held liable if it was researching and developing another product that it “knew” was “safer” and did not release that product fast enough. The 2024 decision in Gilead Tenofovir Cases, Gilead Sciences v. Superior Court of the City and County of San Francisco, effectively imposed a new “duty to innovate,” creating unprecedented liability for product manufacturers across the state.
While the frustration of learning that a different, possibly safer, medication was not yet available is certainly understandable, that is also part of life in a developing and ever-changing world.
Are we suing PacBell and AT&T for the myriad lost hours spent at home waiting on phone calls in years past when they could have more quickly released mobile telephones? Notwithstanding the plaintiff bar reading this and testing further expansion of this novel liability theory, no, we are not.
Making every new and developing innovation a potential basis for a lawsuit may have the opposite of the intended impact and instead slow the pace of innovation, discourage research and development for product improvements, and undermine safety while purporting to promote it.
A company developing new, safer technologies can potentially face liability regardless of when and how they choose to commercialize that product. If they move too quickly, before ironing out all the kinks, they’ll risk liability for a defect. Conversely, if they move too slowly, perhaps by conducting further product testing, they’ll now also risk liability for not rolling out the new product soon enough. Faced with a “Sophie’s choice” scenario, some may instead opt out of the market and avoid innovating altogether.
The litigation involves thousands of plaintiffs who suffered side effects from taking a Gilead HIV drug and claim that while marketing that drug, the company simultaneously was delaying the development and release of a potentially safer drug to maximize their profits.
The roughly 20,000-24,000 plaintiffs who took Gilead’s drug containing tenofovir disoproxil fumarate (TDF) to treat HIV say it caused bone, kidney, and/or tooth injuries — side effects plaintiffs say were fully and properly disclosed. While that drug was on the market, the company was also developing a related drug, tenofovir alafenamide (TAF).
