Court errs in denying Anti-SLAPP motion to strike claims alleging that defendant’s pamphlets, which contained medication information, were confusing.  Evelyn Rivera et al., v. First Databank, Inc., (No.G042377 California Courts of Appeal, Fourth Appellate District, Division Three, August 17, 2010).


Defendant published medication information and pamphlets for thousands of drugs approved by the FDA.  The pamphlets synthesized information in drug manufacturers’ patient medication guides and package inserts into a document that consumers could understand.  Plaintiff filled a prescription for medication at a pharmacy which allegedly used the information provided by the defendant.  Shortly after using the medication plaintiff committed suicide.  Members of his family sued the defendant for negligence and breach of contract, claiming that the suicide warning in the drug information was confusing.  The defendant filed an Anti-SLAPP motion arguing that the information was protected speech.  The trial court denied the motion ruling that the gravamen of the plaintiff’s claims was wrongful death which did not arise from free speech in relation to a public issue.  The appeals court reversed and remanded the matter back to the trial court. 


Pursuant to California Code of Civil Procedure Section 425.16, a party may move to strike in a cause of action against it arising from an act in furtherance of free speech rights in connection with a public issue.  In analyzing the above statute’s application, the courts first examine whether a challenged action is one arising from protected activity.  If so, the plaintiff must then show a likelihood of prevailing on the claim.  Here, the plaintiff based a complaint on the confusing language of the drug information.  This constituted publication which is an exercise of free speech and a protected activity.  Also, plaintiff failed to show that the defendant owed them a duty.  Next, they failed to show that they would prevail on its claim.  As such, this court held that the trial court erred in denying the defendant’s Anti-SLAPP motion.

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