Myers v. Hoffman La-Roche, Inc – 10/2/2007

October 3, 2007

Arizona Court of Appeals Division One Holds That Claims Against Pharmaceutical Company In Connection With Injuries Suffered In Utero Are Not Barred by the “Wrongful Life” Doctrine or the “Learned Intermediary” Doctrine.

Plaintiff brought suit against Defendants, seeking damages for personal injuries Plaintiff sustained after her mother took Accutane while pregnant with Plaintiff. The superior court granted Defendants’ motions to dismiss, which asserted that (1) Plaintiff’s complaint constituted a claim for “wrongful life,” which is not allowed under Arizona law; and (2) the warnings about the medication were adequate as a matter of law pursuant to the “learned intermediary” doctrine.

Judge Johnsen, writing for a unanimous panel, reversed and remanded. Regarding the first issue, the Arizona Appeals Court distinguished Plaintiff’s claim from a “wrongful life” claim, in which a child alleges that defendants caused the child’s life by preventing the mother from terminating a pregnancy. In contrast, Plaintiff’s claim asserted that Defendants caused her injuries in utero by negligently adopting and carrying out an inadequate safety program. Thus, Plaintiff’s claim should not have been dismissed.

Regarding the second issue, the court of appeals held that the “learned intermediary” doctrine did not preclude Plaintiff’s claims. The learned intermediary doctrine provides that the manufacturer or supplier of a prescription drug has no legal duty to warn a consumer of the dangerous propensities of a drug, as long as the manufacturer gives “reasonable instructions or warnings” to the prescribing physician. The court found that the adequacy of instructions and warnings ordinarily is a question of fact and, in this instance, a motion to dismiss should not be granted given the lack of a full record in this case.

Judge Johnsen authored the opinion; Judges Orozco and Ehrlich concurred.