The American Tort Reform Foundation's (ATRF) "Judicial Hellholes" program, which reports on abuses in the civil justice system, has stated that a decision by a California Appellate Court in a lawsuit against Gilead Sciences could escalate the "tort tax" burden borne by California residents. The ATRF expressed apprehension that this trend might be adopted by the rest of the country.
According to Verus, the Court of Appeals issued a partial ruling on Jan. 9, enabling plaintiffs' claims for negligence against Gilead Sciences to proceed. This ruling is part of a years-long lawsuit against Gilead over its HIV drug tenofovir disoproxil fumarate (TDF), which was introduced in 2001. While TDF has effectively treated symptoms of HIV, patients have experienced adverse effects such as bone and kidney damage. During TDF's development, Gilead reportedly discovered tenofovir alafenamide fumarate (TAF), which could serve as a safer alternative to TDF. Plaintiffs in the case allege that Gilead delayed TAF's development to maximize its profits from TDF.
In its report on the case, titled 'Gilead Tenofovir Cases, Gilead Sciences v. Superior Court of the City and County of San Francisco', the "Judicial Hellholes" program stated that the court has essentially established a new duty requiring businesses to innovate. The case has "significantly expanded product liability finding that even if a product is not defective or unreasonably dangerous, a company can be held liable if it was researching and developing another product that it 'knew' was 'safer' and did not release it fast enough," said the report.
The report labeled California as "a perennial Judicial Hellhole", stating its courts "are a breeding ground for novel legal theories." According to ATRF, "The latest ruling is just another notch in the state’s belt, reinforcing its reputation as a laboratory for plaintiff lawyers." The report indicated that California's legal climate has created a burden for the state's residents, who pay an average annual "tort tax" of $2,120. In the Bay Area, where the case against Gilead began, residents' tort tax is $5,888 each year.
The ATRF voiced concern that this development could spread to other states. The report stated that California "courts consistently serve as a launching pad for legal theories that, if successful, are exported across the country. As California goes, unfortunately, so goes the nation in terms of legal trends."
Launched in 2002 as an educational resource bringing awareness to abuses in the civil justice system, ATRF's "Judicial Hellholes" program refers to jurisdictions where judges tend to engage in "unbalanced" court proceedings, typically against defendants. The ATRF is a Washington D.C.-based nonprofit founded in 1997.