This post is from the non-Reed Smith side of the blog only.

Last week we mentioned the decision in Watts v. Medicis Pharmaceutical Corp., 2015 Ariz. App. LEXIS 12 (Ariz. Ct. App. Jan. 29, 2015) in a breaking news post when it first hit the wires and promised more detail would follow.  Well that day has come.

We take a lot of abuse here in New Jersey:  waste dumps, wise guys, Jersey Shore; Chris Christie.  But as drug and device products liability lawyers in New Jersey, we bear another burden — Perez v. Wyeth Laboratories, Inc., 734 A.2d 1245 (N.J. 1999) – the decision that makes New Jersey the only state to adopt a direct-to-consumer (“DTC”) exception to the learned intermediary rule (putting aside West Virginia’s use of DTC as an excuse for rejecting the rule altogether).  But it is a burden we are more than happy to bear on our own.  Texans managed to dodge a bullet and avoided joining our ranks in 2012.  And the DTC issue has been rather quiet in our world in the last few years.

Unfortunately, in Watts an Arizona intermediate appellate court has decided to see whether it wants to keep New Jersey company.  Arizona is one of the relatively few states where the highest court has never passed on the learned intermediary rule.  But heretofore, its appellate courts have gotten it right – adopting and applying the doctrine.  That is, until now.


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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