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November 19. 2015

Arizona Supreme Court Hears Oral Argument on Whether to Uphold Learned Intermediary Doctrine

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Earlier this week, the Arizona Supreme Court heard oral argument in Watts v. Medicis Pharmaceutical Corp. The defendant in Watts is challenging the intermediate Court of Appeals' rejection of the learned intermediary doctrine as incompatible with the Uniform Contribution Among Tortfeasors Act (UCATA) which Arizona has adopted. 

Amanda Watts sued Medicis after she allegedly experienced adverse effects from using Solodyn (minocycline), a prescription acne medication. Medicis's prescribing information for physicians warned of a risk of autoimmune syndromes associated with long-term (>12 weeks) use, as did the drug’s approved patient labeling. But Watts received other written information about the drug, including from the pharmacy, which stated that the risks associated with long-term use were unknown. The trial court dismissed Watts's claims for violation of Arizona's Consumer Fraud Act ("CFA"), A.R.S. § 44-1522 et seq. and for strict product liability. It held that pharmaceuticals are not merchandise as defined by the CFA, and that the learned intermediary doctrine barred any claim against the manufacturer for failure to warn. The Court of Appeals, however, reversed on both points. It concluded that pharmaceuticals are covered by the CFA. It also held that the learned intermediary doctrine is inconsistent with UCATA because it precludes a complete assessment of comparative fault among tortfeasors by shielding a manufacturer from liability so long as it provided adequate information to a third-party physician. 

The argument before the Arizona Supreme Court was lively, with each of the five justices actively questioning each side. The justices' questions revealed several areas of concern. They expressed some skepticism that comparative fault and the learned intermediary doctrine actually address the same issues, distinguishing between causation and duty. Noting that the conflation of these issues seemed to have stemmed from a 1978 Arizona Court of Appeals decision, many of the justices' questions focused on the more recent explication of the learned intermediary doctrine the Restatement (Third) of Torts, and whether, from a policy standpoint, the Court should follow it.

Several of the justices' questions reflected concern about the practical impact of adopting or rejecting the learned intermediary doctrine. For example, they asked counsel for Medicis what kind of remedy an injured plaintiff could have if a drug manufacturer’s direct-to-patient communications are false or misleading, but its physician-directed materials are accurate. On the other hand, one justice asked Plaintiff's counsel whether abandoning the learned intermediary doctrine and requiring that patients receive the full prescribing information would lead to endless litigation over whether this sophisticated medical information was understandable by lay patients.  

Following argument, the Court took the matter under advisement. A published opinion is expected sometime in 2016.