[Drug and Device Law] Breaking News - Phoenix, We Have A Problem

We’ve just learned that an Arizona appellate court has held, in effect, that the learned intermediary rule can’t apply in direct to consumer cases because it – get this – it supposedly violates the Uniform Contribution Among Joint Tortfeasors Act (UCATA).  The case is Watts v. Medicis Pharmaceutical Corp., 2015 Ariz. App. Lexis. 12 (Ariz. App. Jan. 29, 2015).  Arizona is one of the relatively few states where the highest court has never passed on the learned intermediary rule.  According to our Head Count post, the Arizona Court of Appeals has followed the learned intermediary rule three times:  Piper v. Bear Medical Systems, Inc., 883 P.2d 407, 415 (Ariz. App. 1993); Gaston v. Hunter, 588 P.2d 326, 340 (Ariz. App. 1978); Dyer v. Best Pharmacal, 577 P.2d 1084, 1087 (Ariz. App. 1978).  But not anymore, according to Watts, at least not if a plaintiff claims that s/he was personally influenced to seek a drug by false direct to consumer advertising.

The UCATA rationale is so unusual that we’ll need some time to dissect it.  However, we believe, for reasons expressed a few years ago in the second half of this post, the traditional causation regime under the learned intermediary rule easily incorporates situations where direct to consumer advertising allegedly influenced a plaintiff to influence a prescribing physician to obtain a drug.

All we can say right now – after 5 on a Friday − is that Watts  (1) is inconsistent with three prior rulings of the same court; and (2) is based on a rationale that nobody has adopted anywhere – not even in West Virginia.

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Posted By Bexis to Drug and Device Law at 1/30/2015 05:23:00 PM

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