Recently, a team of Tucker Ellis attorneys represented the International Association of Defense Counsel (IADC) as an amicus curiae in an appeal to the California Supreme Court on an issue of importance to life sciences companies. The case—Gilead Tenofovir Cases—addressed a question of first impression. On August 3, the Court rejected the theory adopted by the Court of Appeal; if left undisturbed, that theory could have affected product manufacturers nationwide.

The case presented the following issue: Does a drug manufacturer have a duty of reasonable care to users of a drug it is currently selling, which is not alleged to be defective, when making decisions about the commercialization of an allegedly safer, and at least equally effective, alternative drug? The plaintiffs argued that the manufacturer was negligent because it unreasonably delayed bringing to market another drug that it had invented and that it knew was equally effective and less toxic than the non-defective drug that allegedly caused their injuries. The plaintiffs alleged they would have switched to the alternative drug and avoided injury had the manufacturer not unreasonably delayed bringing the alternative drug to market. Although the Court of Appeal accepted the plaintiffs’ novel theory, the California Supreme Court rejected it. The manufacturer marshalled support for its arguments from scores of amici curiae. In rejecting the plaintiffs’ theory of liability, the California Supreme Court cited points made by three amici—including Tucker Ellis client IADC.

The Tucker Ellis team was led by Peter Choate—who wrote the amicus brief—with assistance from Maha Kabbash, Cheska Tolentino, and Anna-Sophie Tirre.