California Invents a Crazy New Tort
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Golden State judges rule that Gilead can be sued for taking too long to develop an HIV drug.
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. Gavin Newsom and his predecessor Jerry Brown.
The appellate court said its ruling doesn’t create a “duty to innovate” or “pursue ever-better new products.” But once a company starts tinkering with a new and potentially improved product, it could be legally obligated to bring it to market, no matter the commercial or technological barriers.
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I wonder if I can sue the State of California because they should have gotten a fucking clue by now.
Yes, I said gotten. I'm still English. I did it because Aqua said it was OK.