                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


        AMANDA WATTS, an adult individual, Plaintiff/Appellant,

                                      v.

      MEDICIS PHARMACEUTICAL CORPORATION, an Arizona
                 corporation, Defendant/Appellee.

                            No. 1 CA-CV 13-0358
                              FILED 1-29-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-008081
                The Honorable Lisa Daniel Flores, Judge

                 JUDGMENT VACATED; REMANDED


                                 COUNSEL

Tidmore Law Offices, L.L.P., Phoenix
By Mick Levin
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Donald L. Myles, Jr., Lori L. Voepel, Josh M. Snell
Counsel for Defendant/Appellee

Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson
By Stanley G. Feldman
      and
Knapp & Roberts, P.C., Scottsdale
By David L. Abney, Dana R. Roberts
Co-Counsel for Amicus Curiae Arizona Association for Justice/Arizona Trial
Lawyers Association
                             WATTS v. MEDICIS
                             Opinion of the Court



                                   OPINION

Judge John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Chief Judge Diane M. Johnsen
joined.


G E M M I L L, 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.

                               BACKGROUND

¶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. Dept.
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


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                           Opinion of the Court

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 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.




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                            Opinion of the Court

¶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).

                               DISCUSSION

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 independently
review our jurisdiction over an appeal. Engle v. Landman, 221 Ariz. 504, 508,
¶ 10, 212 P.3d 842, 846 (App. 2009).

       A.     Motion for New Trial Following Dismissal Under Rule
              12(b)(6)

¶11           The trial court entered its judgment dismissing the complaint
in January 2013, and Watts filed her notice of appeal in May 2013. Her
notice of appeal was timely, therefore, only if her Rule 59 motion extended
the 30-day appeal period. Ordinarily, a motion for new trial under Rule
59(a) extends the time to file a notice of appeal. ARCAP 9(b)(1)(D). Medicis
argues that Rule 59(a) does not apply to a dismissal under Rule 12(b)(6) and
therefore Watts’s motion did not extend her time to appeal, meaning her
notice of appeal was untimely. Moreover, Medicis claims that the Rule
59(a) motion was not a time-extending motion because it was substantively
deficient. We disagree.

¶12           Medicis argues that because a dismissal under Rule 12(b)(6)
does not require, and in fact precludes, any determination of facts by the
court, a Rule 59 motion “for new trial” may not be filed from a ruling on a



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Rule 12(b)(6) motion. Arizona courts, however, have previously held that
Rule 59(a) affords a remedy even when the trial court has not engaged in
fact-finding. A timely motion for new trial will extend the appeal time after
a grant of summary judgment, see Maganas v. Northroup, 112 Ariz. 46, 48,
537 P.2d 595, 597 (1975), a dismissal for failure to prosecute, see Hartford
Accident & Indem. Co. v. Sorrells, 50 Ariz. 90, 93–94, 69 P.2d 240, 242 (1937),
and the denial of relief under Rule 60(c) for an inadvertently entered
judgment, see Tripati v. Forwith, 223 Ariz. 81, 84, ¶ 14, 219 P.3d 291, 294 (App.
2009). “In fact a ‘motion for new trial’ is almost a misnomer,” as Rule 59
does not require that there have been a trial. 2A Daniel J. McAuliffe &
Shirley J. McAuliffe, Arizona Practice Series, Civil Trial Practice §30.8 (2d ed.
2014). Furthermore, allowing a party to file a motion for a new trial
following a dismissal on the pleadings is consistent with Arizona’s general
principle that “[l]itigation should be concluded where possible in the trial
court” rather than on appeal. Maganas, 112 Ariz. at 48, 537 P.2d at 597.
Accordingly, we conclude that a timely motion for new trial under Rule
59(a) following a court’s dismissal for failure to state a claim is a time-
extending motion.1

¶13           Medicis also asserts that because the motion raised an
argument not made in response to the motion to dismiss, it was
substantively deficient and, as a result, should not extend the time to file a
notice of appeal. The fact that a motion for new trial may be without merit,
however, does not change its time-extending nature. See ARCAP 9(b)(1)(D)
(specifying that the denial of a motion for new trial extends the time for
appeal). Therefore, the motion for new trial was an appropriate, time-
extending motion. Watts’s notice of appeal was timely filed within thirty
days after entry of the formal order denying the motion for new trial.


1 Medicis also argues that Watts’s motion for new trial did not properly set
forth the grounds required by Rule 59(a). To be proper under Rule 59(a), a
motion must invoke one or more of the grounds set forth in the rule and
refer to Rule 59(a) as the motion’s authority. Farmers Ins. Co. of Ariz. v.
Vagnozzi, 132 Ariz. 219, 221–22, 644 P.2d 1305, 1307–08 (1982). Watts’s
motion cited Rule 59(a) and set forth a basis within that rule by arguing that
the decision was contrary to law. Further, in denying the motion, the trial
court gave no indication that it treated it as anything other than a motion
for new trial under Rule 59. See Vagnozzi, 132 Ariz. at 222, 644 P.2d at 1308
(explaining that when the trial court treats a motion as a Rule 59(a) motion,
the appellate court also will do so). Watts’s motion was appropriately made
and decided under Rule 59(a).



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       B.     Notice of Appeal

¶14            Next, Medicis raises a jurisdictional issue regarding the scope
of Watts’s notice of appeal. Because the notice of appeal refers only to the
trial court’s ruling denying Watts’s motion for new trial and not the prior
dismissal and judgment, Medicis claims that on appeal, Watts may argue
only the issues presented in her motion for new trial. Accordingly, Medicis
asserts that this court lacks jurisdiction to consider Watts’s other
arguments. The record leads us to the opposite conclusion.

¶15           In its order denying Watts’s Rule 59(a) motion for new trial,
the court explained the following:

       The Court considered the parties’ papers related to the
       pending motion, as well as the papers related to Defendant’s
       September 4, 2012 motion to dismiss and the Court’s
       December 11, 2012 ruling [granting Defendant’s motion to
       dismiss].

Accordingly, in denying the motion for new trial, the court reviewed and
considered the entirety of the arguments related to the dismissal of Watts’s
claims under Rule 12(b).

¶16          Watts’s notice of appeal specifically references the court’s
order denying the motion for new trial as the “final ruling of the court,”
thereby incorporating the breadth of that ruling:

       NOTICE IS GIVEN that Plaintiff Amanda Watts, by and
       through counsel undersigned, hereby appeals to the Court of
       Appeals, Division One, from the final Ruling of the Court, entered
       on April 30, 2013, in favor of Defendant Medicis
       Pharmaceutical Corporation, signed by the Honorable Lisa
       Daniel Flores.

(Emphasis added.)

¶17           Generally, when a notice of appeal following a motion for
new trial does not specifically or separately appeal the underlying
judgment, this court’s review is limited to issues raised in the motion.
Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 355, ¶ 7, 322 P.3d
168, 172 (App. 2014). The Arizona Supreme Court has explained, however,



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that the sufficiency of a timely notice of appeal should be liberally
construed “if the result is neither misleading nor prejudicial to the appellees
involved.” Hanen v. Willis, 102 Ariz. 6, 8, 423 P.2d 95, 97 (1967). Although
an appellant who fails to follow the rules of appellate procedure risks losing
the right to judicial review on the merits, imposing such a sanction on a
timely filed appeal “should generally result upon a showing of prejudice
to an adverse party.” Hill v. City of Phoenix, 193 Ariz. 570, 574, ¶ 18, 975 P.2d
700, 704 (1999). Absent such prejudice, “society’s interests in adjudicating
appeals on the merits should govern.” Id.

¶18            For example, in Wendling v. Southwest Savings & Loan
Association, 143 Ariz. 599, 694 P.2d 1213 (App. 1984), the court held it had
jurisdiction only to review the issues raised in a Rule 59 motion when the
notice of appeal referenced only that motion. Id. at 601, 694 P.2d at 1215.
Significantly, the Rule 59 motion in that case was based “solely on the
grounds of newly discovered evidence” and did not otherwise allege a
specific error with respect to the underlying judgment. Id. (emphasis in
original).

¶19            The scope of the notice of appeal in this case is not as narrow
as Medicis claims, nor is it as narrow as the notice of appeal in Wendling.
Unlike Wendling, Watts’s Rule 59(a) motion was not based on newly
discovered evidence, but on what Watts asserts was an error in the
underlying judgment. Moreover, Watts appealed from the “final Ruling of
the Court, entered on April 30, 2013.” As explained above, the April 30
ruling was not merely a denial of the motion for new trial, because the trial
court noted that it had also considered again the “the papers related to
Defendant’s September 4, 2012 motion to dismiss and the Court’s December
11, 2012 ruling” granting the motion to dismiss. By referencing the April
30 ruling as the “final” ruling, therefore, Watts’s notice of appeal
sufficiently encompasses both the arguments made in the new trial motion
and in the earlier motion to dismiss.

¶20            Furthermore, Medicis has not established that it suffered any
prejudice from Watts’s failure to specifically reference the underlying
judgment. In Hanen, for example, a notice of appeal incorrectly identified
the date of the judgment being appealed. 102 Ariz. at 9, 423 P.2d at 98.
Although the incorrectly stated date raised a question as to the timeliness
of the appeal, the court nonetheless exercised jurisdiction because there was
“no evidence in the record that the incorrect date misled or prejudiced
appellees.” Id. In this case, Medicis filed an answering brief on appeal that
responded on the merits to each of Watts’s arguments in her opening brief.



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It did not raise any issue regarding the alleged deficiency in the notice of
appeal. In fact, Medicis raised this specific jurisdictional challenge just one
day before oral argument in this court. Medicis was not, therefore,
prejudiced or misled by the notice of appeal.

¶21          For these reasons, we conclude that Watts’s notice of appeal
was sufficient to invoke our appellate jurisdiction regarding each of the
arguments she made in the trial court. We therefore have jurisdiction to
hear the appeal on the merits.

II.    Watts’s Appeal

¶22            We review de novo a dismissal for failure to state a claim
under Rule 12(b)(6) and will affirm if there is no legal theory under which
the plaintiff could be entitled to relief. Blankenbaker v. Marks, 231 Ariz. 575,
577, ¶ 6, 299 P.3d 747, 749 (App. 2013).

       A.     Consumer Fraud

¶23            First, Watts alleges that Medicis violated Arizona’s Consumer
Fraud Act, A.R.S. § 44-1522 et seq., by affirmatively misstating the known
risks of Solodyn to induce consumers to purchase the medication. We
review the interpretation of a statute de novo, City of Phoenix v. Harnish, 214
Ariz. 158, 161, ¶ 6, 150 P.3d 245, 248 (App. 2006), and look first to the plain
meaning of the statutory language as the most reliable indicator of its
construction, New Sun Bus. Park, L.L.C. v. Yuma County, LLC, 221 Ariz. 43,
46, ¶ 12, 209 P.3d 179, 182 (App. 2009).

¶24           The Arizona Consumer Fraud Act (CFA) prohibits “any
deception, deceptive or unfair act or practice, fraud, false promise, [or]
misrepresentation” in connection with “the sale or advertisement of any
merchandise.” A.R.S. § 44-1522. “Merchandise” includes “objects, wares,
goods, commodities, [or] intangibles[.]” A.R.S. § 44-1521(4). As our
supreme court has determined, the CFA also provides consumers with an
implied private cause of action against persons who violate the act. Sellinger
v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 576, 521 P.2d 1119, 1122
(1974).   The elements of a private claim are a false promise or
misrepresentation, made in connection with the sale or advertisement of
merchandise, and the plaintiff’s consequent and proximate injury from
reliance on such a misrepresentation. Dunlap v. Jimmy GMC of Tucson, Inc.,
136 Ariz. 338, 342, 666 P.2d 83, 87 (App. 1983). Such reliance need not be




                                       8
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                            Opinion of the Court

reasonable. Parks v. Macro-Dynamics Inc., 121 Ariz. 517, 520, 591 P.2d 1005,
1008 (App. 1979).

¶25              Medicis argues that because prescription drugs are not
merchandise as defined by the act, Watts’s claim was properly dismissed.
As this court has explained, the purpose of the CFA is to protect consumers
from being deceived by unfair business practices in the sale and
advertisement of merchandise. State ex rel. Horne v. AutoZone, Inc., 227 Ariz.
471, 477, ¶ 12, 258 P.3d 289, 295 (App. 2011), vacated in part on other grounds
by State ex rel. Horne v. AutoZone, Inc., 229 Ariz. 358, 275 P.3d 1278 (2012).
Medication is “merchandise” as defined by the plain language of the
statute: it is a tangible good available for purchase in the marketplace.

¶26            Moreover, prescription medication is often advertised and
sold to consumers in a manner similar to other consumer goods, implicating
the need for the protection of the CFA. Although a medical professional
must first issue a prescription in order for a consumer to obtain certain
drugs, consumers discuss medications with their medical providers and
may express preferences based on advertising. Consumers also have a
meaningful choice whether to purchase and use particular drugs once
prescribed. As a result, consumers may be deceived through fraudulent
misrepresentations in connection with the sale of prescription drugs just as
in the sale of traditional consumer goods. We therefore hold that the CFA
applies to the sale and advertisement of prescription medications.

¶27           Watts’s complaint alleges that Medicis’s promotional
materials and product labeling affirmatively and falsely state that the safety
of using Solodyn for longer than twelve weeks is unknown. She also alleges
that she relied on those statements to her detriment when deciding to take
Solodyn and that her use of Solodyn was the proximate cause of her injury.
Accordingly, Watts adequately pled the elements of a private cause of
action under the CFA. The trial court erred in dismissing the claim.

       B.     Product Liability, UCATA, and the Learned Intermediary
              Doctrine

¶28          Watts also contests the trial court’s dismissal of her common
law product liability claim on the basis of the learned intermediary
doctrine. Watts argues that the doctrine is both outdated in light of modern
medical practice and legally inconsistent with the Uniform Contribution
Among Tortfeasors Act (UCATA), codified at A.R.S. § 12-2501 et seq.




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               1.     History of the Learned Intermediary Doctrine

¶29           This court first adopted the learned intermediary doctrine in
1978. Dyer v. Best Pharmacal, 118 Ariz. 465, 468, 577 P.2d 1084, 1087 (App.
1978). Under this doctrine, a manufacturer is not liable 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. Id.; see also Davis v. Cessna Aircraft Corp., 182 Ariz.
26, 38, 893 P.2d 26, 38 (App. 1994) (applying the learned intermediary
doctrine to a manufacturer of airplane parts). In the context of a
prescription drug, a physician is presumed to act as an intermediary whose
services and advice are necessary before a consumer may receive the drug.
Dyer, 118 Ariz. at 468, 577 P.2d 1087.

¶30            In adopting the learned intermediary doctrine, this court
characterized it as a doctrine of proximate causation. Id. at 467, 577 P.2d at
1086 (“The ultimate question here thus becomes whether the appellees’
alleged negligence proximately caused [the plaintiff’s] injuries.”). The Dyer
court explained that a prescribing physician’s actions in failing to warn the
patient of a drug’s risks would constitute unforeseeable, superseding forces
that would break the chain of causation between a drug manufacturer’s
distribution of the product and a consumer’s harm. Id. at 469, 577 P.2d at
1088 (“a drug manufacturer cannot be required legally to foresee that a
licensed physician will disregard express warnings regarding a drug’s
use”).

¶31            In its application, the learned intermediary doctrine appears
to be less a rule of causation and more a standard for determining when a
drug manufacturer has satisfied its duty to warn. See Dole Food Co., Inc. v.
North Carolina Foam Indus., Inc., 188 Ariz. 298, 302–03, 935 P.2d 876, 880–81
(App. 1996) (assessing factors to determine when, under the learned
intermediary doctrine, the “manufacturer’s duty to warn is ordinarily
satisfied”); Davis, 182 Ariz. at 38, 893 P.2d at 38 (applying the learned
intermediary doctrine “[i]n order to determine whether [a manufacturer]
satisfied its duty to warn”); Piper v. Bear Medical Sys., Inc., 180 Ariz. 170, 178,
883 P.2d 407, 415 (App. 1993) (discussing defendant’s argument that its
“duty to warn was satisfied by warning doctors under the learned
intermediary doctrine” (internal citations omitted)).

¶32         Therefore, under the learned intermediary doctrine, a
manufacturer satisfies its duty to warn so long as it provides adequate



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information to the party who prescribes, installs, or facilitates the use of a
product. Applying the doctrine in this case would shield Medicis from
liability for insufficiently warning Watts about Solodyn’s risks so long as
Medicis provided adequate instructions and warnings to the prescribing
physician.

              2.      Uniform Contribution Among Tortfeasors Act

¶33            In 1984, Arizona significantly amended its tort liability
scheme by adopting UCATA. Before UCATA, Arizona common law
imposed joint and several liability when multiple tortfeasors were
responsible for a single injury to a plaintiff. State Farm Ins. Co. v. Premier
Manufactured Sys., Inc., 217 Ariz. 222, 224, ¶ 8, 172 P.3d 410, 412 (2007).
Under the common law system, a co-defendant who paid more than his or
her proportionate share of a plaintiff’s damages did not have the right to
seek contribution from his fellow tortfeasors. Id. That defendant was
therefore left to bear the risk of a co-defendant’s insolvency. Id. UCATA
helped alleviate the harshness of such a result by allowing a co-defendant
in a tort action to seek contribution from other tortfeasors. Id.

¶34            In 1987, UCATA was amended to abolish joint liability
between co-defendants in most circumstances. Id. at 225, ¶ 12, 172 P.3d at
413. The 1987 amendment established a system of several-only liability, or
pure comparative fault, making each co-defendant in a tort case liable for
no more than his or her respective percentage of fault. In Premier
Manufactured Systems, the Arizona Supreme Court further explained the
effect of UCATA on strict product liability cases. 217 Ariz. at 227, ¶ 21, 172
P.3d at 415. Under UCATA, each defendant in a product liability case is
individually responsible for its own contribution to the plaintiff’s injury,
independent of the actions of the co-defendants: “the various participants
in the chain of distribution are liable not for the actions of others, but rather
for their own actions in distributing the defective product.” Id. at 226, ¶ 20,
172 P.3d at 414 (emphasis in original). The result is that the burden of an
insolvent defendant now rests on the plaintiff, not on other defendants. Id.

              3.      The Learned Intermediary Doctrine and UCATA

¶35            Although the court of appeals has followed the learned
intermediary doctrine since 1978, the Arizona Supreme Court has never
explicitly adopted or commented on the doctrine. This court must consider
the continued viability of the doctrine in light of UCATA’s approach to
allocating liability. See Green v. Lisa Frank, Inc., 221 Ariz. 138, 148, ¶ 20, 211



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P.3d 16, 26 (App. 2009) (explaining that a “statutory provision authorized
by the Constitution always supersedes the common law”) (quoting State ex
rel. Conway v. Glenn, 60 Ariz. 22, 30, 131 P.2d 363, 367 (1942)). In doing so,
we conclude that protecting a prescription drug manufacturer from
possible liability for its own actions in distributing a product, simply
because another participant in the chain of distribution is also expected to
act, is inconsistent with UCATA. See Premier Manufactured Sys., 217 Ariz. at
227, ¶ 21, 172 P.3d at 415.

¶36             As the Supreme Court explained in Premier Manufactured
Systems, UCATA’s ultimate effect was to prevent a partially responsible
defendant from being held liable for the damages caused by his co-
defendant. Id. at 224, ¶ 8, 172 P.3d at 412. Under the learned intermediary
doctrine, however, a prescribing physician may bear all of the responsibility
when a consumer is given an inadequate warning about a drug, even when
a manufacturer played some role in making that warning insufficient. In
fact, the learned intermediary doctrine precludes a complete assessment of
comparative fault among tortfeasors because it preemptively limits the
scope of a manufacturer’s duty. See Dyer, 118 Ariz. at 468, 577 P.2d at 1087
(explaining that once a physician takes an active role in prescribing the
medication, “only the risk of harm created by that conduct remain[s].”). As
such, applying the learned intermediary doctrine in the context of
prescription pharmaceuticals conflicts with both UCATA and the holding
of Premier Manufactured Systems that each defendant in a tort case is liable
for his or her own respective share of fault, no more and no less.

¶37            This conclusion is further supported by the realities of
modern-day pharmaceutical marketing. As Watts points out, drug
manufacturers are turning with increasing frequency to direct consumer
advertising to promote their products. See State ex rel. Johnson & Johnson
Corp. v. Karl, 647 S.E.2d 899, 908 n.14 (W. Va. 2007) (discussing increased
nation-wide spending in direct consumer marketing of prescription
medications). Consumers are regularly presented with advertisements for
medications to treat a variety of symptoms, prompting them to ask,
encourage, and even pressure their medical providers to prescribe these
brand-name medications. Tamar V. Terzia, Note, Direct-to-Consumer
Prescription Drug Advertising, 25 Am. J.L. & Med. 149, 157–58 (1999).
Similarly, Internet sites and medical databases give consumers access to a
wealth of third-party and manufacturer-provided information about
pharmaceutical products. Johnson, 647 S.E.2d at 907 n.12. While it is true
that a patient must first receive a prescription from a “learned
intermediary” in order to obtain prescription drugs, a physician no longer



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is necessarily the consumer’s sole source of information about the effects,
benefits, and risks of the medications he or she takes.

¶38            Accordingly, under our system of comparative fault, when
the manufacturer of a product furnishes false or misleading information to
the consumer, that manufacturer should not be shielded from liability
simply because it provided adequate warnings to a third party. Instead,
whether a consumer was adequately warned should ordinarily be
determined by examining the actions of all involved in the chain of
distribution. See Premier Manufactured Sys., 217 Ariz. at 227, ¶ 21, 172 P.3d
at 415. Otherwise, a consumer may be left without recourse against a
manufacturer in a situation where an adequate warning to a prescribing
physician is undermined or negated by the flawed or incomplete
representations of the manufacturer to the consumer. Elimination of the
learned intermediary doctrine in these circumstances allows a fair
allocation of fault under UCATA, and a consumer who is harmed by false
or misleading information from either a manufacturer or the prescribing
physician may recover in accordance with each defendant’s percentage of
fault. In short, the learned intermediary doctrine cannot coexist with
UCATA.

¶39           In this case, Watts’s complaint alleges that she saw and relied
on information produced and distributed by Medicis, including a savings
program card containing information about Solodyn and a prescription
insert included with the drug itself. These informational materials indicate
that the safety of using Solodyn for longer than twelve weeks was
unknown, but did not provide any information about the risk of
autoimmune disorders such as drug-induced lupus.

¶40           Watts also alleges that she relied on these manufacturer-
provided materials in choosing to take Solodyn at her physician’s
recommendation.       Notwithstanding the actions of any prescribing
physician, Watts’s allegations give rise to questions of fact regarding
whether Medicis adequately warned Watts about the risks of Solodyn and
whether the alleged inadequacy of such a warning contributed to Watts’s
injuries. Accordingly, Watts has identified a legal theory under which she
may be entitled to relief against Medicis, meaning her claim does not fail as
a matter of law under Rule 12(b)(6).2


2 Watts also argues that the learned intermediary doctrine violates Article
18, section 6 of the Arizona Constitution. But because we decide the issue



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                           WATTS v. MEDICIS
                           Opinion of the Court


¶41           In reaching this conclusion, we depart from this court’s prior
holdings applying the learned intermediary doctrine. However correct the
Dyer court’s foreseeability and causation analysis may have been in 1978, it
is not persuasive now; and the learned intermediary doctrine is inconsistent
with UCATA.

      C.     Punitive Damages

¶42            Finally, Watts claims punitive damages against Medicis for
“consciously pursu[ing] a course of conduct” which created a “substantial
risk of significant harm” to others: namely, misrepresenting its knowledge
of the risks of Solodyn use for longer than twelve weeks. The trial court
dismissed Watts’s punitive damages claims because the underlying claims
were also dismissed. Because we vacate the dismissal of Watts’s consumer
fraud and product liability claims, we also vacate the dismissal of her
punitive damages claim.

¶43           Medicis argues that even if the underlying claims are
reinstated, both Arizona and federal law preclude Watt’s punitive damages
claim. Under A.R.S. § 12-701(A), the maker of a drug is not liable for
punitive damages if the drug was manufactured and labeled in accordance
with FDA standards. The potential application of that statute requires more
factual development than exists in this record. Accordingly, we remand
Watts’s claim for punitive damages.




on a statutory basis, we decline to address this constitutional claim. See
Hayes v. Continental Ins. Co., 178 Ariz. 264, 273, 872 P.2d 668, 677 (1994)
(explaining that “if possible we construe statues to avoid unnecessary
resolution of constitutional issues”).


                                    14
                         WATTS v. MEDICIS
                         Opinion of the Court



                           CONCLUSION

¶44          For these reasons, we vacate the judgment of dismissal and
remand for further proceedings consistent with this opinion.




                               :ama




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