Barnes-Hind, Inc. v. Superior Court

Barnes-Hind, Inc. (Barnes-Hind) and Allergan Pharmaceuticals, Inc. (Allergan) are competitive manufacturers of contact lens solutions. Allergan sued Barnes-Hind, complaining of certain of Barnes-Hind’s advertisements and direct communications to doctors and users. One of Allergan’s theories, most recently embodied in the fourth count of its second amended complaint, is that Barnes-Hind’s publications amounted to libel per se. Respondent superior court overruled Barnes-Hind’s demurrer to the second amended complaint; Barnes-Hind seeks pretrial review. In a technical sense, respondent court’s order is probably correct: In its fourth count Allergan has pleaded facts arguably sufficient to constitute a claim on a theory of libel per quod, and thus sufficient to show that it may be entitled to some relief. But it is clear from the proceedings both here and in respondent court that the real issue is whether Allergan can plead libel per se. We conclude that it cannot. A writ of mandate will issue.

From the second amended complaint it appears that Allergan manufactures (among other products) a contact lens solution called “Soflens” which contains an enzyme to remove protein…