Garner v. Medicis Pharmaceutical Corporation

• Court: District Court, D. Arizona
• Decided: July 27, 2021
• Docket: 2:21-cv-00145
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Alec Garner, et al., No. CV-21-00145-PHX-GMS

10 Plaintiffs, ORDER

11 v.

12 Medicis Pharmaceutical Corporation, et al.,

13 Defendants. 14 15 16 Pending before the Court is Defendants Medicis Pharmaceutical Corporation 17 (“Medicis”) and Bausch Health US, LLC’s (“Bausch”) (collectively, “Defendants”) 18 Motion to Dismiss Plaintiff Erica Lupori’s (“Ms. Lupori”) First Amended Complaint. 19 (Doc. 15.) For the following reasons, the motion is denied.1 20 BACKGROUND 21 Solodyn is an acne-treatment drug. (Doc. 14 ¶ 16.) The Food and Drug 22 Administration approved Solodyn for sale in 2006 and required Medicis to include the 23 following statement in Solodyn’s promotional materials: “Safety of Solodyn has not been 24 established beyond 12 weeks of use.” Id. ¶¶ 13–14. Instead of including this statement, 25 Medicis, and later Bausch, disseminated promotional materials that stated: “The safety of 26 using Solodyn beyond 12 weeks has not been studied and is not known.” Id. ¶ 26.

27 1 Defendants requested oral argument. That request is denied because the parties have had an adequate opportunity to discuss the law and evidence and oral argument will not aid the 28 Court’s decision. See Lake at Las Vegas Invs. Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 The First Amended Complaint further alleges that, no later than February 2008, 2 Medicis, and later Bausch, studied the safety of using Solodyn beyond 12 weeks and 3 discovered that more than one percent of patients may have elevated liver function tests 4 after 25 weeks of use and that more than half of one percent of patients may suffer from 5 drug-induced lupus. Id. ¶¶ 27–28. Despite these findings, Medicis continued to use the 6 language mentioned above in its promotional materials even though Medicis, and later 7 Bausch, knew the information was false. Id. ¶ 29. 8 Ms. Lupori was first prescribed Solodyn on September 7, 2010. Id. ¶ 46. Ms. Lupori 9 alleges she relied on the representation that “the safety of using SOLODYN longer than 12 10 weeks has not been studied and is not known” prior to purchasing and consuming Solodyn. 11 Id. ¶ 50. In late June 2012, Ms. Lupori began experiencing severe joint pain and stopped 12 taking Solodyn. Id. ¶¶ 53–54. In September 2012, Ms. Lupori reported to her physician 13 with drug-induced lupus. Id. ¶ 56. 14 On December 28, 2020, Ms. Lupori, along with others, filed suit against Defendants 15 in Maricopa County Superior Court for violation of the Arizona Consumer Fraud Act. 16 (Doc. 1-3, Ex. A.) Defendants removed the case to this Court on January 27, 2021. 17 (Doc. 1.) After Plaintiffs filed their First Amended Complaint, (Doc. 14), Defendants 18 moved to dismiss Ms. Lupori’s claim for untimeliness, (Doc. 15). 19 DISCUSSION 20 I. Legal Standard 21 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 22 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 23 elements of a cause of action”; it must contain factual allegations sufficient to “raise the 24 right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 25 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint 26 for failure to state a claim, “allegations of material fact are taken as true and construed in 27 the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 28 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a 1 presumption of truthfulness, and “conclusory allegations of law and unwarranted 2 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 3 696, 699 (9th Cir. 1998). 4 II. Analysis 5 The statute of limitations for an Arizona Consumer Fraud Act claim, A.R.S. 6 § 44-1522, is one year. A.R.S. § 12-541(5). The limitations period begins to run when 7 “the defrauded party discovers or with reasonable diligence could have discovered the 8 fraud.” Alaface v. Nat’l Inv. Co., 181 Ariz. 586, 591, 892 P.2d 1375, 1380 (Ct. App. 1994) 9 (quoting Mister Donut of Am., Inc. v. Harris, 150 Ariz. 321, 323, 723 P.2d 670, 672 10 (1986)). A court should not grant a motion to dismiss unless it “appears certain plaintiff 11 will not be entitled to relief under any set of facts susceptible of proof under the claims 12 stated.” Anson v. Am. Motors Corp., 155 Ariz. 420, 421, 747 P.2d 581, 582 (Ct. App. 13 1987). 14 Here, Ms. Lupori alleges that after she was diagnosed with drug-induced lupus she 15 “made a reasonable investigation into the cause of her drug-induced lupus—specifically, 16 she reviewed the promotional marketing materials she had available to her at the time, 17 inquired with her medical providers, and performed internet research.” (Doc. 14 ¶ 59.) 18 She further alleges she was unable to determine that Medicis, and later Bausch, made the 19 misrepresentation about the safety of using Solodyn after 12 weeks until the law office for 20 Mick Levin ran advertisements about the misrepresentation in January 2020. Id. ¶¶ 45, 60. 21 As Ms. Lupori asserts that she made a reasonable investigation and did not discover the 22 alleged misrepresentation until the advertisement, it is plausible that Ms. Lupori, with 23 reasonable diligence, could not have discovered the misrepresentation until January 2020. 24 Although Ms. Lupori alleges that a 2012 lawsuit and subsequent 2016 Arizona Supreme 25 Court decision addressed the alleged misrepresentation, id. ¶¶ 42–43, whether that case 26 would have come up in a reasonable investigation is a question of fact not capable of 27 resolution at the motion to dismiss stage. As Plaintiffs filed this lawsuit within a year of 28 January 2020, Defendants’ motion is denied. 1 Accordingly, 2 IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiff || Erica Lupori’s First Amended Complaint (Doc. 15) is DENIED. 4 Dated this 27th day of July, 2021. ° Wars ) ‘ A Whacrsay Sooo) 7 Chief United states District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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