Dechert LLP attorney Michelle Yeary cautions against applying perfect hindsight to drug liability.

“We all know hindsight is 20/20.  And, it’s easy.  There are dozens of television and radio programs that thrive on Monday morning quarterbacking.  There’s no risk in saying the coach should have called for a pass when you already know the run didn’t work.  It’s also dangerous because it’s easy.  People are often too quick to point out that you should have taken path B after everyone learns path A is full of potholes.  Pointing it out is one thing, holding you liable for it is another.”

Yeary takes a look at what happened in Holley v. Gilead Science, Inc., 2019 WL 2077845 (N.D. Cal. May 10, 2019). The case involves two of the main active ingredients in AIDS drugs: TDF and TAF. The plaintiff alleges that the defendant should be responsible for allegedly knowingly using TDF over TAF (allegedly a safer alternative). TDF was FDA approved first and TAF second.  Unfortunately, Yeary wrote, hindsight “can be used to demand perfection,” allowing  plaintiffs to “proceed on what is essentially a stop-selling theory,” that first-generation drugs should not be submitted to the FDA because, in hindsight, “later approved treatments were safer.” That’s what happened in Holley, she said.

Read the complete post by Michelle Yeary on the Drug and Device Law Blog here. 

Read the opinion here.