Arizona Court of Appeals Division One holds that the Consumer Fraud Act applies to the sale and advertisement of prescription medications but that the learned-intermediary doctrine does not.

In April 2008, Amanda Watts’s medical provider prescribed an antibiotic manufactured by Medicis as treatment for Watts’s chronic acne.  Before using the antibiotic, Watts received two informational publications providing details about the drug.  Neither publication disclosed any link between the drug and the development of auto-immune diseases.  

In October 2010, Watts began to suffer from debilitating joint pain.  She was later diagnosed with lupus and hepatitis and filed a complaint against Medicis, alleging consumer fraud and product liability.  In response to Watts’s complaint, Medicis filed a motion to dismiss for failure to state a claim, which the trial court granted in December 2012.  Watts timely filed a Rule 59 motion for a new trial, which the trial court also denied.  Watts then appealed the dismissal of her complaint and the denial of her motion for a new trial.

On appeal, Medicis argued that the Court of Appeals lacked jurisdiction to hear Watts’s appeal because it claimed (1) her Rule 59 motion did not extend the time for filing her notice of appeal and (2) her notice of appeal is limited to the trial court’s dismissal of her motion for new trial.  The Court of Appeals rejected both arguments, concluding that the motion for new trial was an appropriate, time-extending motion and that the notice of appeal included the dismissal of her complaint because the court’s ruling denying the motion for new trial referenced the motion to dismiss and the ruling granting the motion to dismiss.

As to the merits, the Court of Appeals concluded that the trial court erred in granting the motion to dismiss.  The Court first held that the trial court erred in dismissing Watts’s consumer fraud claim because, contrary to the trial court’s conclusion, the Consumer Fraud Act applies to the sale and advertisement of prescription medications.  The Court also overturned the trial court’s dismissal of her common-law product liability claim on the basis of the learned intermediary doctrine—which protects a manufacturer from liability 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.  The Court refused to apply the intermediary doctrine in the context of prescription pharmaceuticals because it concluded that doing so would conflict with Arizona law that each defendant in a tort case is liable for his or her own respective share of fault. 

Judge Gemmill authored the opinion; Judges Winthrop and Johnsen concurred.