Thursday, August 19, 2010
C.A. Throws Out Suit Against Drug Data Publisher as SLAPP
By KENNETH OFGANG, Staff Writer
A suit charging a publisher of pharmaceutical information with responsibility for the death of a man who committed suicide while taking the antidepressant Paxil must be tossed out as a strategic lawsuit against public participation, the Fourth District Court of Appeal has ruled.
Orange Superior Court Judge Kirk H. Nakamura had denied the motion brought by FirstData, Inc., reasoning that the anti-SLAPP statute did not apply because “the gravamen of the causes of action against” the company “is for wrongful death,” which “do[es] not arise out of free speech in connection with a public issue.”
But Div. Three of the appellate court, in a July 23 opinion certified Tuesday for publication, said the suit implicated First DataBank’s right to publish, that its Paxil monograph concerned the public issue of treatment for depression, that the “commercial transactions” exception to the statute did not apply, and that the plaintiffs were unlikely to prevail in the action because they could not show the defendant owed them any duty.
FirstData published monographs for almost 100,000 drugs approved by the Food and Drug Administration, summarizing technical information in everyday language. The monographs are intended to supplement patient guides and package inserts provided to consumers when the drugs are dispensed.
The family of Bruce Rivera alleged in its complaint that the 50-year-old was prescribed Paxil for stress, that he filled the prescription at a Costco pharmacy, and that he committed suicide a short time later. The family sued the doctor who prescribed the drug, along with Costco and FirstData.
In alleging FirstData was negligent, the plaintiffs said the publisher should have included in the monograph the “black-box” suicide warning issued by the FDA, and that the language in the document was, as a whole, vague, inaccurate, and confusing. The publisher brought a special motion to strike under Code of Civil Procedure Sec. 425.16, but Nakamura ruled that the suit did not arise out of free speech in connection with a public issue, and that even if it did, the commercial transactions exception of Sec. 425.17(c) would bar the motion.
Justice William Rylaarsdam, however, writing for the Court of Appeal, said the statute’s application to “speech in connection with a public issue or an issue of public interest” must be broadly construed, and that earlier cases make clear that medical treatments are issues of public interest.
The commercial transactions exception, he went on to explain, does not apply because FirstData does not make or sell Paxil, and did not publish the monograph in order to promote its own goods or services. While the plaintiffs argued that FirstData acted as an agent of Costco, Rylaarsdam said, they presented no evidence to support that argument.
Because the anti-SLAPP statute applied, the justice continued, the burden was on the plaintiffs to show a probability of prevailing on the merits. Their purported showing was inadequate, he said, because they demonstrated no duty owing to them by FirstData.
The contents of the monograph are not regulated by the government, Rylaarsdam wrote, and there is no requirement that the information in it be presented “in any particular format or order.” The plaintiffs’ assertions that some of the language in the monograph was confusing could not establish liability, the justice added, because there was no showing that any such confusion caused Rivera’s suicide.
Nor was a prima facie case of liability established on the basis of the allegation that the FDA suicide warning was omitted, the justice said. Not only was the allegation unsupported by evidence, Rylaarsdam explained, but the defendant showed that at the time Rivera obtained his prescription, the FDA only required a suicide warning for children and adolescents.
Attorneys on appeal were Donald J. Farber and Lloyd Kirschbaum for the plaintiffs and Davis Wright Tremaine’s Thomas R. Burke, Rochelle L. Wilcox, Jeffrey Glasser; Jonathan R. Donnellan and Kristina E. Findikyan for the defendant.
The case is Rivera v. First DataBank, Inc., 10 S.O.S. 4862.
Copyright 2010, Metropolitan News Company