Watts v.Medicis Pharmaceutical Corp., 705 Ariz. Adv. Rep. 19 (App. Div. I, January 29, 2015) (J. Gemmill)

LEARNED INTERMEDIARY DOCTRINE INCONSISTENT WITH AZ COMPARATIVE FAULT & REALITIES OF 21st CENTURY DRUG ADVERTISING

Plaintiff alleges she contracted hepatitis and lupus from an acne medication manufactured and sold by the defendant and prescribed by her doctor.  The Plaintiff further alleged that while she received a couple of informational brochures on the drug, these brochures, unlike the warnings delivered to the doctor, did not warn of these potential side effects. The defendant's motion to dismiss was granted by the trial court based upon the common law “learned intermediary” doctrine. Dyer v. Best Pharmacal, 118 Ariz. 465, 468, 577 P.2d 1084, 1087 (App. 1978). The Arizona Court of Appeals vacated the judgment and remanded the case to the trial court.

Initially the court of appeals found that it is permissible to file a rule 59 Motion for New Trial after the denial of a motion to dismiss.  It then found that while the notice of appeal only referenced the denial of the new trial motion, since the trial court minute entry denying that motion stated the trial court had considered the underlying motion to dismiss the appellate court had jurisdiction to consider all arguments made regarding the motion to dismiss as well as the motion for new trial.  It was important to the court that it found no prejudice to the defendant in so doing.

Next the court addressed the dismissal of plaintiff's complaint under the  Arizona Consumer Fraud Act. A.R.S. §44-1522. Plaintiff alleged that she was misled by statements in the informational brochures that the effects of long term use of the drug were unknown when in fact, literature sent only to the doctor identified many side effects from long term use. The act creates a private right of action and is intended to protect consumers against misleading, deceptive and false advertising of any “merchandise." “Merchandise” is defined to include "objects, wares, goods, commodities, [or] intangibles[.]" A.R.S. §44-1521(4). Here the court found, “it is a tangible good available for purchase in the marketplace” and as such covered by the act.

The court then turned to the learned intermediary doctrine first recognized by the Arizona Court of Appeals in 1978 (Dyer, supra) but never considered by the Arizona Supreme Court. This doctrine allows that a manufacturer is not liable for “failing to warn consumers of a product's potential risks so long as it provides a proper warning to the specialized class of people who are authorized to sell, install, or provide the product.” Typically, provided warnings are given the prescribing physician, the doctrine shields the drug manufacturer from failure to warn claims by the patient.

In 1984 (amended 1987) Arizona adopted the Uniform Contribution Against Joint Tortfeasors Act [UCATA]. Among other things the act eliminates joint and several liability in most circumstances and adopts a comparative fault approach whereby a party's responsibility for harm caused a plaintiff is defined by that party's percentage of fault contributing to the harm .  In today's world of drug advertising the public no longer relies exclusively upon prescribing doctors for information about the drugs they choose to take.  Where it is alleged a drug manufacturer misled the plaintiff in its advertising, UCATA allows the manufacturer to be held accountable for its percentage of fault. Under such circumstances the learned intermediary doctrine has no viability.