Amanda Watts v. Medicis Pharmaceutical Corporation

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

AMANDA WATTS, AN ADULT INDIVIDUAL,

Plaintiff/Appellant,

v.

MEDICIS PHARMACEUTICAL CORPORATION, AN ARIZONA CORPORATION,

Defendant/Appellee.

No. CV-15-0065-PR

Filed January 21, 2016

Appeal from the Superior Court in Maricopa County

The Honorable Lisa Daniel Flores, Judge

No. CV2012-008081

REVERSED

Opinion of the Court of Appeals, Division One

236 Ariz. 511, 342 P.3d 847 (App. 2015)

AFFIRMED IN PART; VACATED IN PART

COUNSEL:

Mick Levin (argued), Michael D. Malin, Mick Levin, P.L.C., Phoenix,

Attorneys for Amanda Watts

Donald L. Myles, Jr., Lori L. Voepel (argued), Joshua M. Snell, Jones, Skelton

& Hochuli, P.L.C., Phoenix, Attorneys for Medicis Pharmaceutical

Corporation

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor

General, David W. Garbarino, Stephen J. Emedi, Assistant Attorneys

General, Phoenix, Attorneys for Amicus Curiae State of Arizona

WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.,

Tucson; and David L. Abney, Dana R. Roberts, Knapp & Roberts, P.C.,

Scottsdale, Attorneys for Amicus Curiae Arizona Association for

Justice/Arizona Trial Lawyers Association

Wayne D. Struble, Bowman and Brooke LLP, Phoenix, Attorney for Amicus

Curiae The Product Liability Advisory Council, Inc.

Alan Blankenheimer, Covington & Burling LLP, Los Angeles, CA; Michael

X. Imbroscio (argued), Paul W. Schmidt, Covington & Burling LLP,

Washington, D.C., Attorneys for Amicus Curiae The Pharmaceutical

Research and Manufacturers of America, the U.S. Chamber of Commerce,

the U.S. Chamber Litigation Center, the Arizona Chamber of Commerce &

Industry, and the Arizona Manufacturers Council

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in

which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, and

BERCH (RETIRED) joined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶1 Under the learned intermediary doctrine (“LID”), a

manufacturer satisfies its duty to warn end users by giving appropriate

warnings to the specialized class of persons who may prescribe or

administer the product. We hold today that the LID generally applies to a

prescription drug manufacturer. We further conclude that the LID is not

displaced by the Uniform Contribution Among Tortfeasors Act

(“UCATA”), A.R.S. §§ 12-2501 through -2509. Finally, we hold that

prescription drugs are “merchandise” for purposes of the Consumer Fraud

Act (“CFA”), A.R.S. §§ 44-1521 through -1534, and the CFA does not require

a direct merchant-consumer transaction to support a patient’s statutory

claim against a drug manufacturer.

I.

¶2 Because the superior court dismissed the plaintiff’s complaint

under Arizona Rule of Civil Procedure 12(b)(6), we “look only to the

pleading itself” and consider its well-pleaded factual allegations,

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Opinion of the Court

reasonable inferences from the alleged facts, and the complaint’s exhibits.

Cullen v. Auto–Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346

(2008); see Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 9, 284 P.3d 863, 867

(2012).

¶3 Medicis Pharmaceutical Corporation manufactures and

distributes Solodyn, which contains minocycline. In its full prescribing

informational materials for Solodyn, Medicis warns: “The long-term use of

minocycline in the treatment of acne has been associated with drug-induced

lupus-like syndrome, autoimmune hepatitis and vasculitis.” Those

materials also state: “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.”

¶4 In April 2008, Amanda Watts, then a minor, sought medical

treatment for acne and received a prescription for Solodyn from her medical

provider. Watts apparently did not receive the full prescribing information

noted above, but did receive two other publications about the drug. The

first was a “MediSAVE” card, which her medical provider gave to her, that

outlined a discount-purchasing program for Solodyn. The MediSAVE card

and its accompanying information stated that “[t]he safety of using

[Solodyn] longer than 12 weeks has not been studied and is not known.”

Second, Watts received an informational insert about Solodyn from her

pharmacist. The insert warned that patients should consult a doctor if

symptoms did not improve within twelve weeks. Watts used Solodyn as

prescribed for twenty weeks.

¶5 About two years later, Watts received another prescription for

Solodyn and took it as directed for another twenty weeks. In October 2010,

Watts was hospitalized and diagnosed with drug-induced lupus and

hepatitis, both allegedly side effects from using Solodyn. Although she has

recovered from the hepatitis, doctors expect her to have lupus for the rest

of her life.

¶6 Watts sued Medicis alleging consumer fraud and product

liability, seeking both compensatory and punitive damages. In her

statutory CFA claim, Watts alleged that in connection with the sale or

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advertisement of Solodyn, Medicis knowingly misrepresented and omitted

material facts on the MediSAVE card she received and on which she relied.

She also alleged that the drug was defective and unreasonably dangerous

because Medicis failed to adequately warn her of the consequences of its

long-term use. The superior court granted Medicis’s motion to dismiss.

¶7 The court of appeals vacated the judgment of dismissal and

remanded the case for further proceedings. Watts v. Medicis Pharm. Corp.,

236 Ariz. 511, 513 ¶ 1, 342 P.3d 847, 849 (App. 2015). The court concluded

that the LID “is inconsistent with UCATA” and “cannot coexist with” that

Act. Id. at 518 ¶ 35, 519 ¶ 38, 342 P.3d at 854, 855. Noting “the realities of

modern-day pharmaceutical marketing,” the court of appeals also found

the policy rationale for the LID is “not persuasive now.” Id. at 519 ¶ 37, 520

¶ 41, 342 P.3d at 855, 856.

¶8 We granted review because the legal issues are of statewide

importance and likely to recur. We have jurisdiction under article 6, section

5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶9 We review dismissal of claims under Rule 12(b)(6) de novo.

Coleman, 230 Ariz. at 355–56 ¶¶ 7–8, 284 P.3d at 866–67. We also review the

interpretation of a statute de novo. See Zamora v. Reinstein, 185 Ariz. 272,

275, 915 P.2d 1227, 1230 (1996).

A.

¶10 Generally, a claim of strict products liability may be based on

“informational defects encompassing instructions and warnings” that

render a product defective and unreasonably dangerous. Gosewisch v. Am.

Honda Motor Co., 153 Ariz. 400, 403, 737 P.2d 376, 379 (1987). To establish

such a claim, the plaintiff must prove, among other things, that the

manufacturer had a duty to warn of the product’s dangerous propensities

and that the lack of an adequate warning made the product defective and

unreasonably dangerous. Id. “In certain contexts, however, the

manufacturer’s or supplier’s duty to warn end users of the dangerous

propensities of its product is limited to providing an adequate warning to

an intermediary, who then assumes the duty to pass the necessary warnings

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on to the end users.” Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 154 (Tex.

2012). This legal doctrine is known as the LID.

¶11 In 1978, our court of appeals adopted the LID in a product

liability case against pharmaceutical companies that manufactured a drug

that allegedly was unsafe due to informational defects. Dyer v. Best

Pharmacal, 118 Ariz. 465, 577 P.2d 1084 (App. 1978). In affirming summary

judgment in favor of the drug companies, the court applied the LID, finding

that the doctrine was supported by principles of both duty and causation.

Id. at 467–69, 577 P.2d at 1086–88. Regarding duty, “[a] drug manufacturer

has discharged his duty to the public if he has properly warned the

administering physician of the contraindications and possible side effects

of the drug.” Id. at 468, 577 P.2d at 1087. Regarding causation, a learned

intermediary (the prescribing physician) who received an adequate

warning regarding a drug’s side effects or proper use but unforeseeably

disregarded the warning constituted an intervening, superseding event

that broke the chain of causation between the manufacturer and the patient.

Id. at 467–69, 577 P.2d at 1086–88.

¶12 As subsequent Arizona cases have recognized, the LID is

based on principles of duty, not causation. See, e.g., Dole Food Co. v. N.C.

Foam Indus., Inc., 188 Ariz. 298, 302–03, 935 P.2d 876, 880–81 (App. 1996)

(assessing factors to determine when, under the LID, the “manufacturer’s

duty to warn is ordinarily satisfied”); Davis v. Cessna Aircraft Corp., 182 Ariz.

26, 38, 893 P.2d 26, 38 (App. 1994) (applying the LID “to determine whether

[a manufacturer] satisfied its duty to warn”); see also Restatement (Third) of

Torts: Prod. Liab. § 6 cmt. b (Am. Law Inst. 1998) (“Third Restatement”)

(“The rationale supporting this ‘learned intermediary’ rule is that only

health-care professionals are in a position to understand the significance of

the risks involved and to assess the relative advantages and disadvantages

of a given form of prescription-based therapy. The duty then devolves on

the health-care provider to supply to the patient such information as is

deemed appropriate under the circumstances so that the patient can make

an informed choice as to therapy.”). Thus, the court of appeals here

correctly remarked that, “[i]n its application, the [LID] appears to be less a

rule of causation and more a standard for determining when a drug

manufacturer has satisfied its duty to warn.” Watts, 236 Ariz. at 517 ¶ 31,

342 P.3d at 853.

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¶13 Manufacturers generally have a duty to warn consumers of

foreseeable risks of harm from using their products. See Third Restatement

at § 2. But under the LID, if the manufacturer provides complete, accurate,

and appropriate warnings about the product to the learned intermediary, it

fulfills its duty to warn the consumer. See id. at § 6; Centocor, 372 S.W.3d at

142. The premise for the LID is that certain types of goods (such as

prescription drugs) are complex and vary in effect, depending on the end

user’s unique circumstances, and therefore can be obtained only through a

qualified intermediary like a prescribing physician, who can evaluate the

patient’s condition and weigh the risks and benefits. See Reyes v. Wyeth

Labs., 498 F.2d 1264, 1276 (5th Cir. 1974). As applied to prescription drug

manufacturers, the Third Restatement states the doctrine as follows:

A prescription drug or medical device is not reasonably safe

due to inadequate instructions or warnings if reasonable

instructions or warnings regarding foreseeable risks of harm

are not provided to:

(1) prescribing and other health-care providers who

are in a position to reduce the risks of harm in accordance

with the instructions or warnings; or

(2) the patient when the manufacturer knows or has

reason to know that health-care providers will not be in a

position to reduce the risks of harm in accordance with the

instructions or warnings.

Third Restatement § 6(d).

¶14 Although the court of appeals has embraced the LID, this

Court has not yet addressed the doctrine. In our view, the Third

Restatement properly states the LID, and therefore we adopt § 6(d) as our

expression of it. Cf. Ft. Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 102, 800

P.2d 962, 968 (1990) (“Absent Arizona law to the contrary, this court will

usually apply the law of the Restatement.”); Larkin v. Pfizer, Inc., 153 S.W.3d

758, 770 (Ky. 2004) (adopting the Restatement Third’s expression of the

LID); Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827, 842 (Neb. 2000)

(adopting the Third Restatement § 6(d)). Adopting the doctrine places us

with the majority of jurisdictions that have considered the matter. See

generally Centocor, 372 S.W.3d at 158 n.17 (noting that “the highest courts of

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at least thirty-five states have adopted some form of the [LID] within the

prescription drug products-liability context or cited favorably to its

application within this context”).

¶15 Contrary to Watts’s assertion, the LID does not create a

blanket immunity for pharmaceutical manufacturers. The doctrine does

not apply, for instance, if the manufacturer fails to provide adequate

warnings to the learned intermediary. See McEwen v. Ortho Pharm. Corp.,

528 P.2d 522, 529 (Or. 1974) (if it fails to properly warn the prescribing

physician, “the manufacturer is directly liable to the patient for a breach of

such duty.”); Pittman v. Upjohn Co., 890 S.W.2d 425, 429 (Tenn. 1994) (“[T]he

learned intermediary doctrine does not shield a drug manufacturer from

liability for inadequate warnings to the physician.”). In that event, as

Medicis acknowledged at oral argument in this Court, a patient could sue

and directly recover from a drug manufacturer based on its failure to

properly warn the prescribing physician.

¶16 Watts also asserts, and the court of appeals agreed, that the

underlying rationale for the LID is no longer viable. But we find persuasive

the reasoning of the Texas Supreme Court in rejecting this argument.

Prescription drugs are likely to be complex medicines,

esoteric in formula and varied in effect. As a medical expert,

the prescribing physician can take into account the

propensities of the drug, as well as the susceptibilities of his

patient. His is the task of weighing the benefits of any

medication against its potential dangers. The choice he makes

is an informed one, an individualized medical judgment

bottomed on a knowledge of both patient and palliative.

Pharmaceutical companies then, who must warn ultimate

purchasers of dangers inherent in patent drugs sold over the

counter, in selling prescription drugs are required to warn

only the prescribing physician, who acts as a “learned

intermediary” between manufacturer and consumer. . . .

Because patients can obtain prescription drugs only through

their prescribing physician or another authorized

intermediary and because the “learned intermediary” is best

suited to weigh the patient’s individual needs in conjunction

with the risks and benefits of the prescription drug, we are in

agreement with the overwhelming majority of other courts

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that have considered the learned intermediary doctrine and

hold that, within the physician-patient relationship, the

learned intermediary doctrine applies and generally limits

the drug manufacturer’s duty to warn to the prescribing

physician.

Centocor, 372 S.W.3d at 159 (citations omitted); see also Larkin, 153 S.W.3d at

763–64 (stating that policy reasons support the LID because (1) the

“prescribing physician is in a superior position to impart the warning and

can provide an independent medical decision as to whether use of the drug

is appropriate for treatment of a particular patient,” (2) the “manufacturers

lack effective means to communicate directly with each patient,” and

(3) any duty to directly warn the end user would unduly interfere with the

physician-patient relationship).

¶17 In finding the policy rationale for the LID unpersuasive, the

court of appeals relied on State ex rel. Johnson & Johnson Corp. v. Karl, 647

S.E.2d 899 (W. Va. 2007). In Karl, the West Virginia Supreme Court found

the LID outdated and that “existing law of comparative contribution among

joint tortfeasors is adequate to address issues of liability among physicians

and drug companies . . . .” Id. at 913. No other court has followed Karl, and

several courts have criticized it. See Centocor, 372 S.W.3d at 158 (noting that

no other court has followed Karl); see also Tyree v. Boston Sci. Corp., 56 F.

Supp. 3d 826, 828 n.2 (S.D. W. Va. 2014) (discussing Karl and surveying

jurisdictions that have rejected its reasoning). Even the West Virginia

Supreme Court itself later relegated Karl to a “but see” citation, observing

that “the high degree of federal regulation of prescriptive drug products

attenuates the effect product marketing has on a consumer’s prescriptive

drug purchasing decision.” White v. Wyeth, 705 S.E.2d 828, 838 (W. Va.

2010). Like these other courts, we do not find Karl persuasive.

¶18 Watts alternatively urges this Court to adopt a

direct-to-consumer (“DTC”) advertising exception to the LID. See Perez v.

Wyeth Labs. Inc., 734 A.2d 1245, 1247, 1256 (N.J. 1999) (concluding that

“when mass marketing of prescription drugs seeks to influence a patient’s

choice of a drug, a pharmaceutical manufacturer that makes direct claims

to consumers for the efficacy of its product should not be unqualifiedly

relieved of a duty to provide proper warnings of the dangers or side effects

of the product,” and “[c]onsumer-direct advertising of pharmaceuticals

thus belies each of the premises on which the [LID] rests”). The Third

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Restatement, however, provides a different exception to the LID that

sufficiently protects consumers. See Third Restatement § 6(d)(2) (“A

prescription drug or medical device is not reasonably safe due to

inadequate instructions or warnings if reasonable instructions or warnings

regarding foreseeable risks of harm are not provided to: . . . the patient

when the manufacturer knows or has reason to know that health-care

providers will not be in a position to reduce the risks of harm in accordance

with the instructions or warnings.”).

¶19 In light of this broad exception, we decline to recognize a DTC

advertising exception, which has been adopted only in New Jersey. See

Centocor, 372 S.W.3d at 161 (noting that “[i]n the more than twelve years

since Perez, many courts have declined to follow [New Jersey’s] sweeping

departure from the [LID]”); Larkin, 153 S.W.3d at 766 (surveying exceptions

to the LID and noting that only New Jersey has adopted the DTC

advertising exception); see also Beale v. Biomet, Inc., 492 F. Supp. 2d 1360,

1376 (S.D. Fla. 2007) (stating that “[s]ince Perez was decided, no court . . .

has recognized the DTC exception to the learned intermediary doctrine,

and several courts have expressly rejected the DTC exception”).

B.

¶20 In 1984, the Arizona Legislature enacted UCATA, which

allows a tortfeasor who paid more than its share of damages attributed to

it by the factfinder to seek contribution from other co-tortfeasors. A.R.S.

§ 12-2505. Three years later, the legislature amended the Act by eliminating

plaintiffs’ ability to recover jointly from any or all liable defendants. A.R.S.

§ 12-2506(A). This Court has noted that Arizona’s pure comparative fault

scheme protects defendants from bearing more than their fair share of

liability for a plaintiff’s injuries under the harsh common-law rule of joint

and several liability. State Farm Ins. Co. v. Premier Manufactured Sys., Inc.,

217 Ariz. 222, 224–25 ¶¶ 8–12, 172 P.3d 410, 412–13 (2007).

¶21 The court of appeals erred by concluding that the LID is

incompatible with UCATA. As the court correctly observed, “UCATA’s

ultimate effect was to prevent a partially responsible defendant from being

held liable for the damages caused by his co-defendant.” Watts, 236 Ariz.

at 518 ¶ 36, 342 P.3d at 854. The LID, the court reasoned, “precludes a

complete assessment of comparative fault among tortfeasors because it

preemptively limits the scope of a manufacturer’s duty.” Id. The court of

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appeals thus concluded that “applying the [LID] 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.” Id.

¶22 We find that reasoning flawed. Neither UCATA nor our case

law undermines the LID. UCATA requires apportionment of damages

based on degrees of fault. See A.R.S. §§ 12-2506(A) (“Each defendant is

liable only for the amount of damages allocated to that defendant in direct

proportion to that defendant’s percentage of fault . . . .”); -2506(B) (“In

assessing percentages of fault the trier of fact shall consider the fault of all

persons who contributed to the alleged injury . . . .”). “Fault” is defined as

“an actionable breach of legal duty, act or omission . . . .” A.R.S.

§ 12-2506(F)(2). Thus, UCATA’s scheme is premised on notions of fault,

which necessarily presuppose a breach of duty. Under the LID, however, a

manufacturer satisfies its duty to warn the end user by adequately warning

the learned intermediary, which duty, if satisfied, means that no actionable

breach of a legal duty to the end user occurs. See Dole Food, 188 Ariz. at

302-03, 935 P.2d at 880–81; Davis, 182 Ariz. at 38, 893 P.2d at 38.

¶23 Because the LID and UCATA address two distinct subjects,

they are not mutually exclusive. The LID identifies circumstances when a

manufacturer has met its duty to warn and thus is not at fault. UCATA

does not identify the scope of duties or when parties are at fault; instead,

given a determination that multiple parties are at fault, it specifies how

liability is apportioned among them.

¶24 In sum, the LID neither insulates a manufacturer from

liability in proportion to its share of fault nor shifts a disproportionate share

of liability to someone else. Rather, the doctrine provides a means by which

a manufacturer may satisfy its duty to warn the end user. A manufacturer

that properly warns the learned intermediary fulfills its duty, a result that

comports with UCATA because the drug manufacturer in that

circumstance has not breached its duty and therefore is not at fault. See

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 853 (10th Cir. 2003) (noting

that “Wyoming’s [pure] comparative fault statute has no effect on the

application of the [LID]” because the doctrine “addresses a drug

manufacturer’s duty to provide a warning to consumers,” whereas the

statutory scheme does not “define[] or affect[] the scope of the defendant’s

initial duty”) (citations omitted). But if the manufacturer fails to properly

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warn the learned intermediary, it may be found to have breached its duty

and its liability can be determined based on comparative fault under

UCATA.

C.

¶25 Watts and an amicus curiae also argue that the LID violates

the anti-abrogation clause in article 18, § 6 of the Arizona Constitution. This

clause provides that “[t]he right of action to recover damages for injuries

shall never be abrogated, and the amount recovered shall not be subject to

any statutory limitation . . . .” Ariz. Const. art. 18, § 6.

¶26 The LID is a common-law doctrine, not a statutory limitation.

See Third Restatement § 6 cmt. a; Cronin v. Sheldon, 195 Ariz. 531, 540–41

¶¶ 44–46, 991 P.2d 231, 240–41 (1999) (discussing that the anti-abrogation

clause limits the legislature’s ability to abrogate a common-law claim but

allows the legislature to regulate common-law claims). “Our

anti-abrogation jurisprudence normally asks whether a statute

unconstitutionally deprives a litigant of access to the courts.” Nunez v. Prof’l

Transit Mgmt. of Tucson, Inc., 229 Ariz. 117, 123 ¶ 26, 271 P.3d 1104, 1110

(2012). Article 18, § 6 does not preclude this Court from declaring,

clarifying, or modifying the common law, id., and therefore the LID does

not offend that clause.

¶27 Moreover, the LID does not abrogate a right to recover

damages, but instead provides a means for a manufacturer to fulfill its duty

to warn the end user by properly warning the learned intermediary. See

Third Restatement § 6 cmt. b; see also Larkin, 153 S.W.3d at 765. It does not

prevent a plaintiff from asserting an action against the manufacturer in

appropriate circumstances, such as when the full medical information and

warnings are not given to the medical provider. See Premier Manufactured

Sys., Inc., 217 Ariz. at 228 ¶¶ 27–30, 172 P.3d at 416; see also Baker v. Univ.

Physicians Healthcare, 231 Ariz. 379, 388 ¶¶ 34–35, 296 P.3d 42, 51 (2013)

(discussing that the plaintiff still had a reasonable possibility of obtaining

legal redress under the applicable statute); Nunez, 229 Ariz. at 122–23

¶¶ 24–26, 271 P.3d at 1109–10 (discussing that the application of a different

duty of care did not violate the anti-abrogation clause because the

defendant still had reasonable possibility of obtaining legal redress). The

LID also does not prevent the plaintiff from suing the prescribing medical

provider.

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D.

¶28 Watts did not allege in her complaint that she received the full

prescribing informational materials, see supra ¶ 3, but she did allege that

“Medicis provided” those warnings, without specifying to whom, and

attached them as an exhibit to her complaint. Watts also did not specifically

allege that Medicis breached its duty by giving inadequate or otherwise

defective warnings to her prescribing physician and other health-care

providers who were in a position to reduce the risks of harm. She did allege

more generally, however, that “Medicis failed to provide an adequate

warning of the danger” of using Solodyn for more than twelve weeks.

¶29 Viewed in a light most favorable to Watts, Cullen, 218 Ariz. at

419 ¶ 7, 189 P.3d at 346, her complaint implies that Medicis failed to give

appropriate warnings to her or the pertinent health-care provider.

Accordingly, we vacate the superior court’s dismissal of Watts’s product

liability claim and remand the case for further proceedings. If Medicis

establishes that there is no genuine factual dispute that it provided

complete, adequate warnings for Solodyn to Watts’s prescribing physician

and other health-care providers who were in a position to reduce the risks

of harm, the LID applies and, as a matter of law, Medicis satisfied its duty

to warn and would be entitled to summary judgment on the product

liability claim.

E.

¶30 Medicis additionally asserts that the court of appeals erred by

finding the CFA applicable to this case because prescription

pharmaceuticals are not merchandise and there is no direct

merchant-consumer transaction between drug manufacturers and patients.

We disagree.

¶31 The CFA provides:

The act, use or employment by any person of any

deception, deceptive or unfair act or practice, fraud, false

pretense, false promise, misrepresentation, or concealment,

suppression or omission of any material fact with intent that

others rely on such concealment, suppression or omission, in

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connection with the sale or advertisement of any merchandise

whether or not any person has in fact been misled, deceived

or damaged thereby, is declared to be an unlawful practice.

A.R.S. § 44-1522(A) (emphasis added). Thus, the statute does not expressly

require a direct merchant-consumer transaction. Rather, to succeed on a

claim of consumer fraud, a plaintiff must show (1) a false promise or

misrepresentation made in connection with the sale or advertisement of

“merchandise,” and (2) consequent and proximate injury resulting from the

misrepresentation. See Kuehn v. Stanley, 208 Ariz. 124, 129 ¶ 16, 91 P.3d 346,

351 (App. 2004).

¶32 The CFA defines “merchandise” as “any objects, wares,

goods, commodities, intangibles . . . .” A.R.S. § 44-1521(5). The statute does

not define “objects” or “goods.” Absent statutory definitions, courts

generally apply common meanings, State v. Cox, 217 Ariz. 353, 356 ¶ 20, 174

P.3d 265, 268 (2007), and may resort to dictionary definitions, State ex rel.

Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 344 ¶ 9, 322 P.3d 160,

161 (2014).

¶33 As relevant to this case, the noun “object” is defined as

“something that is put or may be regarded as put in the way of some of the

senses: a discrete visible or tangible thing.” Webster’s Third New

International Dictionary 1555 (2002). Likewise, a definition of “good” is

“tangible movable personal property having intrinsic value but [usually]

excluding money and other choses in action . . . .” Id. at 978. Under those

definitions, pharmaceutical drugs are objects and goods and thus constitute

“merchandise” under the CFA. The court of appeals did not err in

concluding that the CFA applies to prescription pharmaceuticals.

¶34 Here, Watts alleged an actionable claim under the CFA. She

alleged that Medicis affirmatively misrepresented Solodyn by stating that

“[t]he safety of using [Solodyn] longer than 12 weeks has not been studied

and is not known,” even though it knew (as Medicis’s full prescribing

informational material states) that taking the drug for longer than twelve

weeks can cause drug-induced lupus. The superior court thus erred in

dismissing Watts’s CFA claim.

¶35 We express no opinion on two points that were not argued in

either the trial court or court of appeals and are beyond the issues framed

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in Medicis’s petition for review in this Court, without prejudice to the

parties further litigating them on remand: (1) whether the MediSAVE card

that Watts received is an “advertisement” under the CFA,

§§ 44-1521(1), -1522(A), and (2) whether federal law preempts Watts’s CFA

claim. See generally Third Restatement § 6 cmt. b. (discussing that federal

law may displace certain state tort claims).

III.

¶36 For the foregoing reasons, we vacate ¶¶ 28–41 of the court of

appeals’ opinion and affirm the portion relating to Watts’s CFA claim,

Watts, 236 Ariz. at 516–17 ¶¶ 23–27, 342 P.3d at 852–53. We reverse the

superior court’s order dismissing Watts’s complaint, and we remand the

case to that court for further proceedings consistent with this opinion.

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