Watts v. Medicis Pharm. Corp.

• Decision Date: 29 January 2015
• Docket Number: No. 1 CA–CV 13–0358.,1 CA–CV 13–0358.
• Citation: 705 Ariz. Adv. Rep. 19,236 Ariz. 511,342 P.3d 847
• Parties: Amanda WATTS, an adult individual, Plaintiff/Appellant, v. MEDICIS PHARMACEUTICAL CORPORATION, an Arizona corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

236 Ariz. 511
342 P.3d 847
705 Ariz. Adv. Rep. 19

Amanda WATTS, an adult individual, Plaintiff/Appellant
v.
MEDICIS PHARMACEUTICAL CORPORATION, an Arizona corporation, Defendant/Appellee.

No. 1 CA–CV 13–0358.

Court of Appeals of Arizona, Division 1.

Jan. 29, 2015.

342 P.3d 848

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

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

Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., By Stanley G. Feldman, Tucson and Knapp & Roberts, P.C., By David L. Abney, Dana R. Roberts, Scottsdale, Co–Counsel for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association.

Judge JOHN C. GEMMILL delivered the opinion of the Court, in which Presiding Judge LAWRENCE F. WINTHROP and Chief Judge DIANE M. JOHNSEN joined.

342 P.3d 849

OPINION

GEMMILL, 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 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

342 P.3d 850

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.

¶ 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. Engel 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 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 & Indemnity 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

342 P.3d 851

¶ 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...