California Invents a Crazy New Tort
Businesses are often sued for selling allegedly faulty products that aren’t actually defective. Last week a California appeals court ruled that businesses can also be sued for failing to develop a product. Behold California’s new tort standard: You should have built that.
Some 24,000 patients have sued Gilead Sciences in California state court for failing to introduce an allegedly safer version of an HIV drug. The Food and Drug Administration in 2001 approved a life-saving HIV medication by Gilead. The plaintiffs don’t argue that the drug is defective or lacked adequate warnings.
They claim that Gilead should have launched sooner an alternative HIV treatment that carries fewer bone and kidney side effects. They say Gilead delayed developing the new drug to maximize profits from its other HIV medication. Gilead disputes these claims and says it wasn’t clear from its early studies that the new drug would be safer or more effective.
Regardless, slow-walking the development of a product isn’t a tort because it doesn’t directly harm someone. A California superior court judge in 2022 nonetheless ruled that Gilead could be held negligent for failing to develop better products, a novel theory of product liability that a state appellate court affirmed last week. “We conclude that the legal duty of a manufacturer to exercise reasonable care can, in appropriate circumstances, extend beyond the duty not to market a defective product," Associate Justice Jeremy Goldman wrote for the three-judge panel whose members were appointed by Democratic Gov.
Read more on livemint.com
