Modification: Gilead Tenofovir Cases

GILEAD TENOFOVIR CASES

GILEAD LIFE SCIENCES, INC.,

Petitioner,

v.

THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,

Respondent;

PLAINTIFFS IN JCCP NO. 5043,

Real Parties in Interest.

No. A165558

(San Francisco City & County Super. Ct. No. CJC-19-005043, JCCP No. 5043)

California Court of Appeal

First Appellate District

Division Four

Filed February 1, 2024

ORDER MODIFYING

OPINION AND DENYING

REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 9, 2024, be modified as follows.

1. On page 11, delete the text of footnote 4 and replace it with the following text:

Gilead cites some evidence in the summary judgment record that it contends supports its rebuttal of plaintiffs' factual allegations, whereas plaintiffs contend that evidence they submitted in opposition to the summary judgment motion supports them. However, Gilead did not seek summary judgment on the ground that undisputed evidence established that it lacked actual knowledge that TAF was safer and at least as effective as TDF, and in its petition for rehearing, Gilead contends that it did not consider plaintiffs' allegations of knowledge and motivation material to the legal issues its motion raised.

2. At the top of page 59, after the sentence ending "and, if necessary, on appeal from an adverse judgment." add as footnote 20 the following footnote, which will require renumbering of the subsequent footnote:

²⁰ In its petition for rehearing, Gilead requests that we direct the trial court to permit further development of a record as to the appropriateness of the narrower Rowland exception, and to permit Gilead to file a summary judgment motion on the issues of whether Gilead possessed actual knowledge in 2004 that TAF was safer than, and as effective as, TDF, and whether Gilead's narrower Rowland exception is appropriate. Our intent in the above discussion is that on remand the parties will have an opportunity to develop the record further, and to present potentially dispositive legal issues to the court for adjudication. While we see no reason why the trial court could not proceed as Gilead proposes, we also do not preclude it from employing other procedures, in the exercise of its sound discretion, to effectuate our intent.

There is no change in the judgment.

The petition for rehearing, filed January 24, 2024, is denied.

BROWN, P. J.