Appeal from the Superior Court in Maricopa County The Honorable Lisa Daniel Flores, Judge No. CV2012-008081
Opinion of the Court of Appeals, Division One 236 Ariz. 511, 342 P.3d 847 (App. 2015)
Mick Levin (argued), Michael D. Malin, Mick Levin, P.L.C., Phoenix, Attorneys for Amanda Watts.
Donald L. Myles, Jr., Lori L. Voepel (argued), Joshua M. Snell, Jones, Skelton & Hochuli, P.L.C., Phoenix, Attorneys for Medicis Pharmaceutical Corporation.
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, David W. Garbarino, Stephen J. Emedi, Assistant Attorneys General, Phoenix, Attorneys for Amicus Curiae State of Arizona.
Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson; and David L. Abney, Dana R. Roberts, Knapp & Roberts, P.C, Scottsdale, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association.
Wayne D. Struble, Bowman and Brooke LLP, Phoenix, Attorney for Amicus Curiae The Product Liability Advisory Council, Inc.
Alan Blankenheimer, Covington & Burling LLP, Los Angeles, CA; Michael X. Imbroscio (argued), Paul W. Schmidt, Covington & Burling LLP, Washington, D.C., Attorneys for Amicus Curiae The Pharmaceutical Research and Manufacturers of America, the U.S. Chamber of Commerce, the U.S. Chamber Litigation Center, the Arizona Chamber of Commerce & Industry, and the Arizona Manufacturers Council.
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, and BERCH (Retired) joined.
PELANDER VICE CHIEF JUSTICE.
¶1 Under the learned intermediary doctrine ("LID"), a manufacturer satisfies its duty to warn end users by giving appropriate warnings to the specialized class of persons who may prescribe or administer the product. We hold today that the LID generally applies to a prescription drug manufacturer. We further conclude that the LID is not displaced by the Uniform Contribution Among Tortfeasors Act ("UCATA"), A.R.S. §§ 12-2501 through -2509. Finally, we hold that prescription drugs are "merchandise" for purposes of the Consumer Fraud Act ("CFA"), A.R.S. §§ 44-1521 through -1534, and the CFA does not require a direct merchant-consumer transaction to support a patient's statutory claim against a drug manufacturer.
¶2 Because the superior court dismissed the plaintiffs complaint under Arizona Rule of Civil Procedure 12(b)(6), we "look only to the pleading itself" and consider its well-pleaded factual allegations, reasonable inferences from the alleged facts, and the complaint's exhibits. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346 (2008); see Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 9, 284 P.3d 863, 867 (2012).
¶3 Medicis Pharmaceutical Corporation manufactures and distributes Solodyn, which contains minocycline. In its full prescribing informational materials for Solodyn, Medicis warns: "The long-term use of minocycline in the treatment of acne has been associated with drug-induced lupus-like syndrome, autoimmune hepatitis and vasculitis." Those materials also state: "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."
¶4 In April 2008, Amanda Watts, then a minor, sought medical treatment for acne and received a prescription for Solodyn from her medical provider. Watts apparently did not receive the full prescribing information noted above, but did receive two other publications about the drug. The first was a "MediSAVE" card, which her medical provider gave to her, that outlined a discount-purchasing program for Solodyn. The MediSAVE card and its accompanying information stated that "[t]he safety of using [Solodyn] longer than 12 weeks has not been studied and is not known." Second, Watts received an informational insert about Solodyn from her pharmacist. The insert warned that patients should consult a doctor if symptoms did not improve within twelve weeks. Watts used Solodyn as prescribed for twenty weeks.
¶5 About two years later, Watts received another prescription for Solodyn and took it as directed for another twenty weeks. In October 2010, Watts was hospitalized and diagnosed with drug-induced lupus and hepatitis, both allegedly side effects from using Solodyn. Although she has recovered from the hepatitis, doctors expect her to have lupus for the rest of her life.
¶6 Watts sued Medicis alleging consumer fraud and product liability, seeking both compensatory and punitive damages. In her statutory CFA claim, Watts alleged that in connection with the sale or advertisement of Solodyn, Medicis knowingly misrepresented and omitted material facts on the MediSAVE card she received and on which she relied. She also alleged that the drug was defective and unreasonably dangerous because Medicis failed to adequately warn her of the consequences of its long-term use. The superior court granted Medicis's motion to dismiss.
¶7 The court of appeals vacated the judgment of dismissal and remanded the case for further proceedings. Watts v. Medicis Pharm. Corp., 236 Ariz. 511, 513 ¶ 1, 342 P.3d 847, 849 (App. 2015). The court concluded that the LID "is inconsistent with UCATA" and "cannot coexist with" that Act. Id. at 518 ¶ 35, 519 ¶ 38, 342 P.3d at 854, 855. Noting "the realities of modern-day pharmaceutical marketing, " the court of appeals also found ...