Court of Appeal Upholds Denial of Anti-SLAPP Motion and Allows Suit Over Drug Monograph to Go Forward
A woman who claims she suffered total blindness and other deleterious effects as a result of taking an anti-epilepsy drug can sue the distributor of a monograph she claims understated the drug’s risks, the First District Court of Appeal has ruled.
Div. Three Thursday affirmed an Alameda Superior Court judge’s denial of an anti-SLAPP motion brought by PDX, Inc.
The distributor had contended that distribution of the monograph (a shortened version of the drug warnings) was a protected activity, but the trial court held, and the appellate court affirmed, that the plaintiff had met the second prong of the anti-SLAPP analysis, showing that she was likely to prevail on the action.
I question the legitimacy of these sorts of actions, but that is for the jury to decide. Plaintiff alleges that the following warning, which was contained in the complete drug warning documentation, was omitted from the monogram.
“SERIOUS AND SOMETIMES FATAL RASHES HAVE OCCURRED RARELY WITH THE USE OF THIS MEDICINE. . . . Contact your doctor immediately if you develop rash symptoms, including red, swollen, blistered or peeling skin. Treatment with this medication should be stopped unless it is clearly determined that the medicine did not cause the rash. Even if the medicine is stopped, a rash caused by this medicine may still become life-threatening or cause serious side effects (such as permanent scarring).”
Hardin alleges that she read the monogram, and had this warning been included, she never would have taken the drug.