Appeal from the Superior Court in Maricopa County. No. CV2012-008081. The Honorable Lisa Daniel Flores, Judge.
For Plaintiff/Appellant: Mick Levin, Tidmore Law Offices, L.L.P., Phoenix.
For Defendant/Appellee: Donald L. Myles, Jr., Lori L. Voepel, Josh M. Snell, Jones, Skelton & Hochuli, P.L.C., Phoenix.
For Arizona Association for Justice/Arizona Trial Lawyers Association, Amicus Curiae: Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson; David L. Abney, Dana R. Roberts, Knapp & Roberts, P.C., Scottsdale.
Judge John C. Gemmill delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Chief Judge Diane M. Johnsen joined.
[236 Ariz. 513] GEMMILL, Judge:
[¶1] Amanda Watts appeals the trial court's dismissal of her product liability action against Medicis Pharmaceutical Corporation. Watts's claim is based on injuries she allegedly suffered after using a prescription acne medication manufactured by Medicis. The primary issues presented are whether the common law learned intermediary doctrine is inconsistent with Arizona's comparative fault tort system and whether the Arizona Consumer Fraud Act applies to consumer advertising by a drug manufacturer or seller. For the reasons that follow, we vacate the dismissal of Watts's complaint and remand for further proceedings.
[¶2] On an appeal from the grant of a motion to dismiss, we accept as true the well-pled facts in the complaint. Fidelity Sec. Life Ins. Co. v. Department of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). We construe the reasonable inferences from the well-pled facts in the light most favorable to the non-moving party. Luchanski v. Congrove, 193 Ariz. 176, 179 ¶ 17, 971 P.2d 636, 639 (App. 1998) (citing Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 508, 744 P.2d 29, 35 (1987)).
[¶3] In April 2008, Watts, a minor at the time, sought medical treatment for chronic acne. Watts's medical provider prescribed Solodyn, a prescription oral antibiotic with active ingredient minocycline. Medicis, an Arizona corporation, manufactures and distributes Solodyn. After receiving a prescription, Watts used Solodyn as prescribed for twenty weeks. When Watts returned to the same medical provider in May 2010, again with concerns about acne, the provider again prescribed Solodyn, and Watts took it as directed for another twenty weeks.
[¶4] Before using Solodyn, Watts received two informational publications providing details about the drug, neither of which disclosed any link between Solodyn use and the development of auto-immune diseases. The first was a " MediSAVE" card, which her medical provider gave to her, that outlined a discount purchase program for Solodyn. The MediSAVE card and its accompanying information indicated that the safety of using Solodyn for longer than twelve weeks " has not been studied and is not known." Additionally, when she filled the prescription at a local pharmacy, Watts received an informational insert about Solodyn's possible side effects and safety considerations. That insert warned that patients should consult a doctor if symptoms did not improve within twelve weeks.
[¶5] Watts does not allege that she received either the U.S. Food and Drug Administration (FDA) approved patient labeling or the full prescribing information for Solodyn that is provided to physicians. The FDA-approved patient labeling states that possible side effects of Solodyn use include joint pain and effects on the liver. Contrary to the MediSAVE card and insert Watts received, the full prescribing information warns specifically that lupus-like syndrome and autoimmune hepatitis are possible results associated with the " long-term" use of minocycline. It also warns, in a section labeled " Patient Counseling Information," that patients should be advised:
Autoimmune syndromes, including drug-induced lupus-like syndrome, autoimmune hepatitis, vasculitis and serum sickness have been observed with tetracycline-class drugs, including minocycline. Symptoms may be manifested by arthralgia, fever, rash and malaise. Patients who experience such symptoms should be cautioned to stop the drug immediately and seek medical help.
[¶6] In October 2010, Watts began to suffer from debilitating joint pain. After being hospitalized, Watts was diagnosed with drug-induced lupus and drug-induced hepatitis, both allegedly side effects of her use of Solodyn. Although she has recovered from the hepatitis, doctors predict that she may suffer from lupus for the rest of her life.
[¶7] Watts filed a complaint against Medicis, alleging consumer fraud, product liability, and punitive damages claims. She alleged that Medicis knowingly used false pretenses and omitted material facts from the information
[236 Ariz. 514] presented to her regarding Solodyn's risks in order to induce her to buy and use Solodyn. She also alleged that the drug was unreasonably dangerous because Medicis failed to provide adequate warnings of its known dangers.
[¶8] In response to Watts's complaint, Medicis filed a motion to dismiss for failure to state a claim under Arizona Rule of Civil Procedure 12(b)(6), which the trial court granted in December 2012. Watts filed a timely Rule 59 motion for new trial, which the trial court denied in a signed order in April 2013.
[¶9] Watts timely appeals the trial court's dismissal of her complaint and denial of her motion for new trial. This court has jurisdiction under Arizona Revised Statutes (" A.R.S." ) sections 12-120.21(A)(1) and -2101(A)(1).
I. Medicis's Jurisdictional Arguments
[¶10] As a threshold matter, Medicis argues that this court does not have jurisdiction over Watts's appeal for two main reasons. First, Medicis contends that Watts did not timely appeal because her Rule 59 motion did not extend the time for filing her notice of appeal. Second, Medicis argues that Watts's notice of appeal is limited to the trial court's dismissal of her motion for new trial and did not constitute an appeal from the trial court's underlying judgment of dismissal under Rule 12(b)(6). We ...