On March 12, 2023, the NAM filed a coalition amicus letter urging the California Supreme Court to review a Court of Appeal decision endorsing a novel theory of liability where plaintiffs do not have to prove that a product is defective or unreasonably dangerous, but rather can assert that a company is liable for researching and developing another product that it “knew” was “safer” and failing to bring that product to market. In this case, the plaintiffs concede that the product at issue—a medication used to prevent and treat HIV/AIDS—is useful and not defective. Nevertheless, the Court of Appeal agreed with the plaintiffs that the manufacturer of the product can be held liable for the delay in bringing to market a different product the plaintiffs contend is safer.
We will argue that the decision conflicts with longstanding law and will result in a flood of litigation if left in place. The negligence theory that the Court of Appeal accepted could be repurposed against any manufacturer, not just a drug maker. And it will not be hard for enterprising plaintiffs’ lawyers to plead a claim under this new theory of negligence. California Supreme Corut review is necessary to clarify the scope of manufacturer liability and to bring California law back in line with the general and sound rule that a manufacturer can be held liable only for the products it made and sold, not products it could have made and sold.