Calif. Justices to Weigh Gilead Negligence Claim in HIV Suit

Litigation attorney Eric Alexander was highlighted in a Law360 article commenting on a case before the California Supreme Court that could create a new standard for negligence under product liability law. The case arose when a group of plaintiffs sued drugmaker Gilead, accusing it of continuing to sell its HIV drug tenofovir disoproxil fumarate (TDF) to boost profits despite knowing it could pivot to a safer alternative in tenofovir alafenamide fumarate (TAF). Gilead is appealing a state appellate court's ruling that the company must face a negligence claim under California law; the court determined that the legal duty of a manufacturer to exercise reasonable care extends beyond not marketing a defective product, which in this instance meant not continuing to sell a product while knowing a safer option was available. Mr. Alexander, who leads Holland & Knight's Product Liability – Life Sciences Team, warned a decision upholding the appellate ruling could establish a looser, "unprecedented" bar for assessing negligence in the life sciences industry that would in turn open a wave of claims and hinder research and development.

"It's very shocking for somebody who understands the history of development of product liability, and specifically liability for prescription medical products in this country, to think that you're going to penalize a company for continuing to do research," he said. "...No state has ever recognized anything close to this sort of theory of liability."

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