Can Drug Companies Be Sued for Consumer Fraud for their marketing? Yes, holds the Arizona Court of Appeals

The Arizona Court of Appeals has ruled that prescription drug companies can be sued for consumer fraud under Arizona’s Consumer Fraud Act.  The published decision is a major victory for patients and consumers, particularly in this day and age where drug company advertising has flooded television and radio advertising, speaking directly to consumers.

The case is Amanda Watts v. Medicis Pharmaceutical Corporation, Case No. 1 CA-CV 13-0358, and involves the drug Solodyn.  The drug is an oral antibiotic manufactured by Scottsdale-based Medicis Pharmaceutical Co.

In 2008, while Watts was a minor, she obtained a prescription for Solodyn to treat chronic acne.  Two years later, she got a new prescription and used the drug again.  Both times, Watts ended up using the drug for 20 weeks.

According to the decision, before using the drug, Watts received two informational publications that did not disclose a link to the potential development of autoimmune disorders. However, the company provided information available to the doctor that warned of lupus-like syndrome and autoimmune hepatitis from “long term” use and that doctors should tell patients of symptoms that might develop, which should cause them to stop immediately and seek medical attention.

Watts was hospitalized in late 2010 with drug-induced lupus and drug-induced hepatitis.

In a subsequent lawsuit, Watts alleged that both conditions are side effects of her using Solodyn.   Watts may suffer from lupus the rest of her life.

On appeal, the Arizona Court unanimously set aside a prior rule barring such lawsuits, which was based on the presumption that a drug company’s only obligation is to provide the full list of complications and side effects to doctors, and that patients do not need that sort of information.

Significantly, the decision expressly relies on the fact of how manufacturers now market such products directly to the public.

The decision points out that prescription medication is often advertised and sold to consumers in a manner similar to other consumer goods.

Although the author of the unanimous opinion, Judge Gemmill, acknowledged that patients still need a doctor’s prescription in order to get such drugs, he concluded that the situation is no longer the one-way discussion that it used to be (between a doctor and patient).

“Consumers discuss medications with their medical providers and may express preferences based on advertising,” concludes the decision.  Further, the decision explained that patients still have to decide whether to buy and actually use a drug — even after getting a prescription.

“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.” “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,” the judge wrote.

Furthermore, internet sites and medical databases give consumers access to both manufacturer-provided and third-party information about drugs.

“A physician no longer is necessarily the consumer’s sole source of information about the effects, benefits, and risks of the medication.”

Accordingly, the Arizona Court of Appeals concluded that this means a manufacturer should not be shielded from liability.  “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.”

Consequently, the Court held that Arizona’s Consumer Fraud Act provided a valid cause of action for Watts against the drug manufacturer, because Arizona law prohibits “any deception, deceptive or unfair act or practice, fraud, false promise or misrepresentation” in connection with “the sale or advertisement of any merchandise.”  In addition, the Court of Appeals revived Watt’s claim for punitive damages against the drug manufacturer.

A copy of the published decision can be viewed here.  Because the decision is published, it is considered precedent and may be cited and applied by lower trial courts.

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