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# CA Court Should Reject New Drug Liability Theory: WLF
- URL: https://www.fdaweb.com/ca-court-should-reject-new-drug-liability-theory-wlf/
- Published: 2022-07-13T12:00:00.000Z
- Updated: 2026-09-14T17:51:46.000Z
- Author: David McFarland
- Tags: Drugs, #legacy-id-D5152259

Washington Legal Foundation (WLF) says the California First District Court of Appeal should review and then overturn a trial court ruling that advances a “radical new theory for manufacturers of non-defective prescription drugs.” A WLF [news release](https://www.wlf.org/2022/07/07/communicating/wlf-asks-california-appeals-court-to-scrutinize-novel-liability-theory-for-prescription-drugs/?ref=fdaweb.com) says plaintiffs in the case alleged injury from Gilead Science’s HIV/AIDS drug TDF (tenofovir disoproxil fumarate), but did not allege any defect with the design, manufacture, marketing, or labeling of the drug.

“In denying Gilead’s summary judgment motion,” WLF says, “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.”

In its friend-of-the-court brief, WLF says the trial court’s theory of liability is a significant departure from California tort law. “A concession that the product at issue is not defective should end the litigation,” the release says. “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.”