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

2

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, 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

3

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 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

4

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 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

5

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.
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

6

¶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
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

7

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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Opinion of the Court

8

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 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

9

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 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

10

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 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

11

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.
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

12

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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Opinion of the Court

13

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 
WATTS V. MEDICIS PHARMACEUTICAL CORP.

Opinion of the Court

14

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.