Crazyfornia Gets Crazier

California pioneered modern product liability law, which probably has done some good although it had unintended consequences, too. But now California has gone too far. Its appellate court has held that a manufacturer can be sued for not producing a product:

Some 24,000 patients have sued Gilead Sciences in California state court for failing to introduce an allegedly safer version of an HIV drug. The Food and Drug Administration in 2001 approved a life-saving HIV medication by Gilead. The plaintiffs don’t argue that the drug is defective or lacked adequate warnings.

They claim that Gilead should have launched sooner an alternative HIV treatment that carries fewer bone and kidney side effects. They say Gilead delayed developing the new drug to maximize profits from its other HIV medication. Gilead disputes these claims and says it wasn’t clear from its early studies that the new drug would be safer or more effective.

Never before has a court held that a company can be held liable for not producing a product that plaintiff consumers did not buy. The possibilities here are endless.

The appellate court said its ruling doesn’t create a “duty to innovate” or “pursue ever-better new products.” But once a company starts tinkering with a new and potentially improved product, it could be legally obligated to bring it to market, no matter the commercial or technological barriers.

This will create a disincentive to innovate. As Gilead noted in a statement, “the court’s decision will have widespread, negative consequences across all fields of innovation and manufacturing.” It also creates a Catch-22 for businesses. If they rush to roll out new products, they could be sued for glitches. But if they take too long in some court’s opinion, they could be sued for dawdling.

This theory is, frankly, completely insane. It shares a quality with many other progressive theories–a complete disregard for the actual, real world.

At the rate California is going, it soon will be home to no one except welfare recipients, illegal immigrants and plaintiffs’ lawyers. The last productive citizen to rent a one-way U-Haul can turn out the lights. Or, rather, that probably won’t be necessary, since by then California will be relying on wind and solar energy, and the lights will already be off.

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