Anti-SLAPP Statute: Negligent Undertaking

Hardin v. PDX, Inc., (First District, June 19, 2014) 227 Cal.App.4th 159, 173 Cal.Rptr.3d 397.

A woman who suffered complete blindness and permanent scarring after taking a prescription anticonvulsant drug, filed suit against several defendants, including the manufacturer, the prescribing doctor and the pharmacy where the drug was purchased, alleging that she would not have taken the drug had she been provided adequate warnings.  The plaintiff also named a supplier of software which distributed to pharmacy customers information known as drug education monographs, and alleged the defendant was negligent in reprogramming its software to permit the pharmacy to print abbreviated warnings, omitting 3 pages of additional information about the drug.

The defendant moved to strike the plaintiff’s claims under Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute) on the ground that the products liability and negligence claims against it arose from protected speech concerning a public issue or an issue of public interest. The trial court denied the motion, finding that the activity underlying the alleged liability was the reprogramming of software, and was not in furtherance of the defendant’s right of petition or free speech within the meaning of section 425.16. The court of appeal affirmed, holding that the plaintiff had demonstrated a probability she may prevail on her claim under a theory of negligent undertaking, distinguishing the case from Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 115 Cal.Rptr.3d 1:

Rivera is also of limited precedential value ….. it does not address Hardin’s theory that, in undertaking to provide patient drug monographs, PDX assumed a duty of care under the negligent undertaking doctrine. (citation) This common law theory, restated in section 324A of the Restatement (Second) of Torts (hereinafter section 324A), “is one of liability to third persons for physical harm caused when, under certain listed circumstances, one negligently performs an undertaking to another. In its entirety, section 324A reads: ‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if [¶] (a) his failure to exercise reasonable care increases the risk of such harm, or [¶] (b) he has undertaken to perform a duty owed by the other to the third person, or [¶] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’ [¶] … Indeed, ‘[i]t is ancient learning that one who assumes to act … may thereby become subject to a duty of acting carefully, if he acts at all.’”…

Other jurisdictions, although apparently no California courts, have considered that parties who engage in providing medication warnings to consumers may be found to have assumed a duty to use due care in carrying out their enterprise. (citations)…Here, Hardin presented evidence that PDX knew that enabling Safeway to print the abbreviated monograph could place patients at risk, including, notably, the acknowledgement in its 2006 agreement with Safeway that providing the full eight-section version would better enable patients to “use the medication properly and appropriately, receive the maximum benefit, and avoid harm.” This record sufficiently makes out a claim that PDX assumed a duty of care by undertaking to render services to Safeway “of a kind [it] should have recognized as necessary for the protection of third persons….” (citation)

Citing Rivera, PDX also argues it had no duty to Hardin because the abbreviated Lamotrigine monograph included a warning that it did not cover all possible adverse effects and advised patients to read the medication guide and consult their physicians before taking the medication. We disagree with PDX’s view that, as a matter of law, this language has any bearing upon the scope of its duty. The cited provisos and their foreseeable effect on consumers are relevant to whether PDX acted with due care when it enabled Safeway to omit warnings from WKH monographs, but it is the nature of PDX’s undertaking, not the care with which it was carried out, that determines whether it assumed a duty under section 324A in the first place.

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