The opinion abolishes the learned intermediary doctrine.

Watts took Medicis’ acne drug for several months; it allegedly gave her lupus. (Taking serious drugs for trivial problems is a form of insanity for which we do blame drug companies; their commercials promise relief from any annoyance while, over scenes of happy and attractive people playing in fields or eyeing each other suggestively, the mellow voice mildly mentions the threat of a dozen different deaths.) Watts sued, alleging consumer fraud and products liability. Medicis made a 12(b)(6) motion, which the trial court granted.

Medicis’ defense of Watts’ appeal first presented some jurisdictional arguments. We omit them, as they ranged from clueless to hopeless.

The Consumer Fraud Act prevents misrepresentation in the “sale or advertisement of any merchandise.” Watts alleged that the company documentation she received said that the effects of long-term use were unknown but that Medicis knew (and informed doctors) that it could cause lupus. (Did her doctor tell her? The opinion avoids answering that, though presumably the Compliant did as well.) Medicis’ response? That a drug is not “merchandise.” But the statute defines “merchandise” – “objects, wares, goods, commodities, and intangibles”; the court says that drugs fall under the plain meaning of that. For some reason it then feels the need to justify the result on what are basically policy grounds. In any event, it concludes that Watts’ allegations were sufficient under the Act.

As to learned intermediary, Watts’ argument was that it is inconsistent with contribution among tortfeasors. The court notes that the doctrine was at first analyzed as a causation issue but that other cases refer to it as a duty-to-warn issue. So which is it? Here is the court’s analysis of that, in its entirety: “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.”  So which is it? Well, if the answer were “causation” then the court would be stuck because UCATA would have nothing to do with it. And a bit later “appears to be . . . more” has morphed into a legal conclusion: “the learned intermediary doctrine precludes a complete assessment of comparative fault among tortfeasors because it preemptively limits the scope of a manufacturer’s duty.” And “Watts’ allegations give rise to questions of fact regarding whether Medicis adequately warned Watts.”

The court tells us that this result “is further supported by the realities of modern-day pharmaceutical marketing.” Of course, there are no facts or “realities” in the record, this being an appeal from a 12(b)(6) dismissal. The court’s discussion of consumer fraud was carefully phrased to acknowledge that. And a principal reason for analyzing learned intermediary in the context of UCATA is to avoid having to discuss the policy issues that led to its adoption; here the court suggests that it could analyze policy if it wanted to, which in turn underscores its almost complete failure to do so. But divorcing reality from mere fact is no doubt fine by the amicus since its next step will be to argue that learned intermediary should be abolished simply because pharmaceutical advertising exists, regardless of the facts of a given case, a result it will contend this case either already establishes or at least “foreshadows.”

(link to opinion)