To Our Clients and the Families Who Trusted Us with This Fight:
We are writing to update you on the California Supreme Court's decision in the Gilead Tenofovir Cases (No. S283862), a case in which we served as one of the lead counsel on behalf of thousands of plaintiffs across California.
This litigation involved approximately 24,000 people who took a Gilead Sciences HIV medication called TDF (tenofovir disoproxil fumarate) and allege they suffered serious bone and kidney injuries as a result. Plaintiffs argued that Gilead had developed an alternative drug at the same time that it developed TDF, which it knew was safer than TDF, known as TAF (tenofovir alafenamide), and decided not to bring it to market because it would hurt sales of the more dangerous drug TDF. Gilead determined that if they shelved the safer drug for 10 years and let their patent run out on TDF, they would make billions of dollars more than if they protected their patients by selling the safer drug. And that is exactly what happened: in that 10 years Gilead made $32 Billion on the sale of TDF.
We regret to inform you that the Court ruled in Gilead's favor. The Court held that, under California law, Gilead did not owe plaintiffs a legal duty to develop and bring TAF to market sooner, even if it knew TAF was a safer drug than TDF.
In reaching its decision, the Court held that for a plaintiff to bring a negligence action, the plaintiff must show in this instance that Gilead’s conduct resulted in a DEFECTIVE product and here, plaintiffs admitted that TDF was not defective. The Court held that if plaintiffs could not show that TDF was defective, even if Gilead knew that its safer product TAF would save lives and that it weas unreasonable to withhold TAF in favor of selling the more dangerous product so it could make more money, that as a policy matter an action alleging that it was unreasonable and therefore negligent to withhold the safer product, could not be brought. In this regard the Court explained that drug development is inherently uncertain. Before a drug completes clinical testing and receives FDA approval, a manufacturer cannot know whether it will ultimately prove to be safe and effective (this is not true) or whether it will ever be approved for sale. Because of that uncertainty, the Court concluded that Gilead could not reasonably have foreseen that delaying TAF would cause harm to patients taking TDF.
In short, the Court held that California law does not impose a duty of care on a drug manufacturer, under these circumstances, to develop and sell an alternative new drug sooner, even if the manufacturer has already developed that drug.
The full decision can be accessed online here: https://www4.courts.ca.gov/opinions/documents/S283862.PDF
Because of the Court's decision, these claims cannot move forward, and there are no further legal steps available to pursue this matter.
A Personal Message from Attorney William Kershaw
"I was extremely disappointed in the Gilead Sciences decision by our California Supreme Court, which for the first time said it's reasonable for a pharmaceutical company to hold back a safer drug from patients, and continue selling a more dangerous one so it can maximize profits under a patent, even when it knows that the more dangerous drug will cause serious bone and kidney damage because it's ten times more toxic than the safer alternative. Historically, our California Supreme Court has been known as a court that protects access to justice for those who have been injured and are less fortunate. In this case, I don't believe the Court struck that same balance. I feel horrible for all our clients, and indeed for the thousands of people who bravely participated in this litigation and put themselves through exceptionally difficult work to make things right for an injured community. To all of you: thank you for your effort. It is a deeply disappointing outcome, and you deserved better from this Court."
Our Gratitude to You
We know this is deeply disappointing news, especially considering what you have endured. We are truly sorry that the Court's decision did not result in the outcome we had all hoped for. It has been our privilege to represent you, and we appreciate the trust you placed in our firm throughout this litigation.
We wish you and your family all the best moving forward. If you have any questions about the Court's decision, please do not hesitate to contact us at (916) 520-6639. Thank you.
