## REVISED FEBRUARY 22, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-40122

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### E LIZABETH 

### R IVERA 

### ; A RKANSAS 

### C ARPENTERS 

### H EALTH AND 

### W ELFARE 

### F UND



### ,

ON B EHALF OF T HEMSELVES AND O THERS S IMILARLY S ITUATED

,



### Plaintiffs-Appellees,

VERSUS



### W YETH 

### -A YERST 

### L ABORATORIES



### ,

A D IVISION OF A MERICAN H OME P RODUCTS C ORPORATION ;



### A MERICAN 

### H OME 

### P RODUCTS 

### C ORPORATION



### ,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________ February 15, 2002

Before S MITH

and E MILIO M. G ARZA

, Circuit Judges, and C UMMINGS

, *

District Judge.

J ERRY E. S MITH , Circuit Judge: Pursuant to F ED

. R. C IV

. P . 23(f), defendan t s Wyeth-Ayerst Laboratories (“Wyeth”)

and Amer ican Home Products Corporation appeal the certif

i cation of a nationwide class of

drug purchasers and their insurance companies. Because we conclude that this suit does

not present a justiciable case or controversy

under Article III of the Constitution, we re- * District Judge of th e Northern District of

Texas, sitting by designation.2

verse and render a judgment of dismissal.

I.

In July 1997, Wyeth began distributing

Duract, a non-steroidal anti-inflammatory drug

(“NSAID”) prescribed f

or short-term management of acute pain. Although all NSAID’s

carry certain risks of liver and gastrointestinal

damage, clinical trials revealed that Duract had

additional negative effects. Wyeth included a

package insert in each box of Duract detailing

these dangers, reporting the results of the clinical trials, recommendi n g Duract be used for

only s h ort periods (“generally less than ten

day s”), and warning that Duract may not be

appropriate for those with preexisti ng liver

conditions. The Food and Drug Administration (“FDA”) approved Duract, its labeling,

and its package insert.

In December 1997, Wyeth received three

reports of liver failure by patients who had taken Duract for long-term relief without undergoing liver testing. In February 1998, after

receiving FDA approval, Wyeth issued a new,

revised package insert reporting these cases of

liver failure and reemphasizing that Duract was

intended “only for the short term ( 10 day s or

less ) .” After receiving new reports of liver

failure among long term users, Wyeth voluntarily withdrew Duract from the market in

June 1998.

Wyeth explained that of the twelve patients

injured by Du ract, eleven had taken the drug

for over ten days, and one had preexisting liver

disease. Wyeth stated that because no change

in Duract’s pack a ge insert could guarantee

physicians would stop prescribing the drug for

long-term use, it was withdr awing Duract

from the market. Wyeth established a program

to refund Duract users for any unused porti on

of their prescription. II.

Elizabeth Rivera and the Arkansas Carpenters Health

and Welfare Fund (the “Fund”)

filed this nationwide class action suit. Rivera

seeks to represent all patients who were prescribed, had purchased, and had ingested Duract but suffered no physica l o r emotional 1 injury. In fact, the class explicitly excludes any

p atients who have been injured by Dur act.

Nor do plaintiffs claim Duract was ineffective

as a pain killer or has any future health consequences.

Although the class includes citizens of all

fift y states and the District of Columbia, plaint iffs state their complaint under Texas law.

They allege that Wyeth failed to warn of Duract’s dangers and that Duract was defective in

violation of (1) the Texas De ceptive Trade

Practices Act (“DT PA”), T E X

. B US

. & C OM

. C ODE A NN

. §§ 17.50, 17.46 (Vernon Supp.

1998), (2) the implied warranty o f merchantabilit y, T EX

. B US

. & C OM

. C ODE A NN

. § 2.314(a) (Vernon 1994), and (3) common

law u n just enrichment, and thus Wyeth owes

them economic damages. The Fund asserts a

derivative claim: It seeks to represent all

third-party payers who have reimbursed these

patients for Duract.

1 The plaintiffs have never alleged SS in their original complaint, their second amended complaint,

or their brief to this court SS that they suffered emotion al distress. Yet, in its November 8 order

denying Wyeth’s motion to dismiss, the district

court based its holding on this fact. It concluded

that “even if the medicine does not cause physical

injury, the user may spend months or years worrying about potential illness caused by the medicine,”

and this stated a claim under Texas law. Rivera v.

Wyeth-Ayerst Labs.

, 1 21 F. Supp. 2d 614, 619

(S.D. Tex. 2000). To eliminate all confusion, the

plaintiffs repudiated the district court’s claim in

their brief to this court.3

Wyeth asked the district court to deny the

motion to certify the class on the pleadings or,

in the alternative, to allow class discovery and

an evidentiary hearing. The plaintiffs agreed

tha t discovery would be appropriate; accordingly, on November 28, 2000, the parties submitted a proposed discovery plan to the district court. That same day, despite the plaint iffs’ concession i n favor of discovery, the

co urt denied Wyeth’s request for discovery

and a n evidentiary hearing and certified the

class under F ED

. R. C IV

. P. 23(b). 2

Even though F ED

. R. C IV

. P. 26(d) prohibits

discovery and evidentiary hearings in advance

of the pretrial conference, and the pretrial conference had been

held only thirteen days earlier, the district court rebuked Wyeth f or not

having pursued discovery over th e past f our

months and de c ided it could certify the class

without any discovery. Accordingly, although

the record contained no evidence on Rivera’s

purchase or use of Duract or on the Fund’s reimbursement of Duract patients, the court held

that the claims of Rivera and the Fund “appear

to be typical” of the class members.

Simi larly, the district court dismissed Wyeth’s argument that variations in the fifty

states’ laws would swamp any common issues.

There was no need to analyze different states’

laws or even to decide which laws applied, the

district court held, because plaintiffs had

promised ev ent ually to provide a workable

subclass plan that would solve any problems.

Wyeth t imely filed, and this court granted,

an application for interlocutory appeal pursuant to rule 23(f). Apparently estimat ing t hat

their odds on appeal wer e bleak, plaintiffs moved the district court to issue an order “expressing the cour t ’s intent to vacate the class

certification order and to reconsider the class

certification issue upon remand.” The plaint iffs noted t hat the district court had erred in

failing to conduct a choice-of-law analysis and

failing to demand plaint iff s submit a subclass

plan before certification; plaint iffs requ ested

the court to assure that it would do so on remand; nonetheless, the court denied the m otion on the stated ground of lack of jurisdiction.

III.

Rarely on appeal does the appellee concede

that the district court’s order is so fatally

flawed that it cannot stand. Yet, at oral argument, the attorney for Rivera and the Fund did

just that, admitting that only a “feeling of obligation to support the dist r ict court order”

moved him to argue when it was “crystal

clear” we would have to vacate and remand. 3

Counsel was o n ly half right, however: Because this suit does not even present a justiciable case o r controversy under Article III, we

vacate and render a judgment of dismissal.

IV.

Artic le III limits the judicial power of the

federal courts to “Cases” and “Controversies”

but does not define those terms. Instead, “the

Constitution’s central mechani sm of separation

of powers depends largely upon common understanding of what activities are appropriate

to legislatures, to executives, and t o courts.”

Lujan v. Defenders of Wildlife

, 504 U.S. 555,

559-60 (1992). An “essential and unchanging

2 Rivera v. Wyeth-Aye rst Labs. , 197 F.R.D.

584 (S.D. Tex. 2000). 3 We are sympat hetic to counsel’s plight on

appeal, and we appreciate his candor, in his role as

an officer of the court, in a c knowledging the

weakness of the position thrust on him and his

clients by the district court.4

part” of this common understandi n g is the

doctrine of standing. Id. at 560.

The “irreducible constitutional minimum of

s t anding contains three elements”: “[T]he

plaint iff must have suffered an injury in fact,”

“there must be a causal connection between

the injury and the conduct complained of,” and

“it must be lik ely . . . that the injury will be

redressed by a favorable decision.” I d. at 560-

61 (internal quotati ons omitted). 4 The plaint iffs, as the party invoking federal jurisdiction,

bear the burden of establishing these elements.

Steel Co. v. Citize ns for a Better Env’t , 523

U.S. 83, 103 (1998). Failure to establish any

one deprives the federal courts of jurisdiction

to hear the suit. Id.

The district court erred by not demanding

such a showing befor e it certified the class. 5

Had it done so, it would ha v e found that

plaintiffs had demonstrated neither injury nor

causation.

A.

Ev en t hough the certification inquiry is

more straightforward, we m ust decide standing

first, because it determines the court’s fundamental power even to hear the suit. Id. at 94.

The procedural posture of t his case does not

alter our conclusion. Though rule 23(f) allows a party to appeal

only the issue of class certification, “[s]tanding

is an inherent prerequisite to the class certification inquiry.” B ertulli v. Indep. Ass’n of

C ont’l Pilots , 242 F.3d 290, 294 (5th Cir.

2001). Accordingly, standing may 

### S S indeed

must 

### SS be addressed even under the limit s of a

rule 23(f) appeal. Id. 6

Standing is a

question of l aw that we review de novo. Pederson v. La. State Univ.

, 213 F.3d 858, 869 (5th Cir. 2000). We review

for c lear error all facts expressly or impliedly

found by the district court. Id.

B.

To establish an injury in fact, plaint iffs must

demonstrate “an invasion of a legally protected

interest which is

. . . concrete and parti cul arized.” D efenders of Wildlife

, 504 U.S. at 560.

4 Accord Pub. Citizen, Inc. v. Bomer

, 274 F.3d

212, 217 (5th Cir. 2001).

5 Although Wyeth argued that plaintiffs lacked

standing, the district court refused to address the

question, insisting it had done so in its November

8 denial of a motion to dismiss. Rivera v. WyethAyerst Labs.

, 197 F.R.D. 58 4, 588 (S.D. Tex.

2000). The November 8 order, however, does not

mention standing. Rivera v. Wyeth-Ayerst Labs.

, 121 F. Supp. 2d 614 (S.D. Tex. 2000). 6 See also Steel Co.

, 523 U.S. at 94 (“‘On

every writ of error or appeal, the first and fundamental question is that of jurisdiction’” (quoting

Great S. Fire Proof Hotel Co. v. Jones , 177 U.S.

449, 453 (1900))).

Although there is a limited exception for suits in

which the class certification issues ar e “logically

anteceden t to the existence of any Article III issues,” Amchem Prods., Inc. v. Windsor , 521 U.S.

591, 612 (1997); accord Ortiz v. Fibreboard

Corp.

, 527 U.S. 815, 8 31 (1999) (citations omitted), this exception is not applicable he re. In the

instant case, in contrast to Ortiz and Amchem, the

standing question would exist whether Rivera filed

her claim alone or as part of a class; class certification did not create the jurisdictional issue. Nor are

we precluded from addressing standing by the fact

that the district court did not discuss it. “[B]ecause

‘standing is a jurisdictional requir ement, [it] may

always be addressed for the first time on appeal.’”

Pub. Citizen

, 274 F.3d at 217 (quoting Sierra Club

v. Cedar Point Oil Co.

, 73 F.3d 546, 555 n.22 (5th

Cir. 1996)).5

Rivera’s claim to injury runs s o mething like

this: Wyeth sold Duract; Rivera purchased

and used Duract; Wyeth did not list enough

warnings on Duract, and/or Duract was defectiv e; o t her patients were injured by Duract;

Rivera would like her money back. The plaint iffs do not claim Duract caused them physical

or emotional injury, was ineffective as a pain

killer, or has any future health consequences to

use rs. Instead, they assert that their loss of

cash is an “economic injury.”

The plainti f

fs never define this “economic

injury,” but, instead, spend most of their brief

lis t ing helpful suggestions on how a court

could calculate damages. These arguments are

relevant (if at all) to redressability, not injury.

Merely asking for money does not establish an

injury in fact.

Notably, the wrongs Rivera and the class

allege are those suffered by other, non-c l ass

member patients. The plaintiffs claim that Wyeth violated the implied warranty of merchantabilit y by selling a defective drug, b ut then

aver that the drug was not defecti ve as to

them. Similarly, t he plaint iffs claim Wyeth violated the DTPA by failing to issue warn ings

sufficient to advise injured users, but then conc ede they were not among the injured . Such

wrongs cannot constitute an injury in fact.

“[T]he ‘injury

in fact’ test requires more

than an injury to a cognizable interest. It requires that the party seeking review be himself

amo ng the injured.” S ierra Club v. Morton

, 405 U.S. 727, 734-35 (1972); accord Defenders of Wildlife

, 504 U.S. at 563. It is not

enough t hat Wyeth may have violated a legal

duty owed to some other patients; the plaint iffs must show that Wyeth violated a legal

duty owed to them. “What courts require . . .

is that the injury be p ersonal.” B ertulli

, 242 F.3d at 295.

The plaint iffs’ most plausible argument for

finding they have suffered “i nvasion of a legally protected interest” is their claim th e y

were denied “the benefit of the bargain” due to

them under general, contra c t law type principle s. The plaintiffs do not actually argue

breach of con tract 

### S

S likely a smart decision,

given that there was no contract. Instead, they

invoke Coghlan v. Wellcraft Mari ne Corp.

, 240 F.3d 449 (5th Cir. 2001), a bold move

given that Coghlan explicitly distinguis h es

valid, contract law suits from the “no -injury

products liability law suit” plaintiffs bring.

T he C oghlan plaint iffs had contracted to

buy an all fiberglass boat but instead received

a less valuable, wood-fiberglass hybrid. They

sued for breach of contract, requesting damages equal to the difference in value between

what they were promised (an all fiberglass

boat) and what they received (the fiberglassw o o d hybrid). In holding that the Coghlans

had suffered an injury, we explained that

[t]he key distinction between [the Coghlans’] case and a “no-injury” products

liabilit y suit is that the Coghlans’ claims

are rooted in basic contract law rat h er

than the law of product liabili ty: the

Coghlans assert they were promised one

thing but were given a different, less

valuable thing. The core allegation in a

no-injury product liabilit

y class action is

. . . the defendant produced or sold a

defective product and/or failed to warn

of the product’s dangers.

Id. at 455 n.4.

Even if we were to ig nore the fact that

plaintiffs have no contract, the general princi-6

ples they invoke do not help them. By plaint iffs’ own admission, Rivera paid for an effective pain killer, and she received just that 

### SS the

benefit of her bargain. “An award of damages

for breach of contract is supposed to place the

injured party as nearl

y as po ssible in the position that he would have occupied had the

defaulting party performed the contract.” I d.

at 453-54. Duract worked. Had Wy eth provided additional warnings or made Duract safer, the plaint iffs would be in the same position

they occupy now. Accordingly, they canno t

have a legally protected contract interest.

The confusion arises from the plaintif f s’

attempt to recast their product liabilit y claim in

the language of contract law. The wrongs

they allege 

### S

S f ailure to warn and sale of a

defective product 

### SS

are produ ct s liability

claims. I d. at 455 n.4. Yet, the damages they

assert 

### SS benefit of the barg ain, out of pocket

expenditures 

### SS

are contract law damages. The

plaint iffs apparen t ly believe that if they keep

oscillating between tort and contrac t law

claims, they can obscure the fact that they have

asserted no concrete injury. Such artful pleading, however, is not enough to create an injury

in fact.

These are not merely pleading exercises;

Article III’s standing requirements assure that

“‘the dispute

. . . will be presented in an adversary context and in a form historically viewed

as capable of judicial resolution.’” S ier r a

Club

, 405 U.S. at 732 (quoting Flast v. Cohen

, 392 U.S. 83, 101 (1968)). Courts should

not be deciding legal questions in the abstract,

but based on a fully developed factual record.

By definition, Rivera’s no-injury “damages”

will not vary

wit h Wyeth’s degree of negligence or the drug’s propensity for harm. Rivera has not even indicated what additional

warnings Wyeth should have included or

which of Duract’s defects Wyeth should have

cured 

### SS perhaps because as one not injured by

the drugs, she does not know.

C.

In addition to their failure to demonstrate

an injury in

fact, plaintiffs fail to plead facts

essential to establ

ish causation. Standing requires “a causal connection between the injury

and the conduct complained of 

### SS the injury has

to be fa irly traceable to the challenged action

of the defend ant, and not the resul t of the

ind ependent action of some third party not

before the court.” D efenders of Wildlife

, 504

U.S. at 560 (internal quotati ons and alterations

omitted).

The facts provide plaintiffs an additional

hurdle in demonstrati ng causation. Duract

was a prescription drug; before a patient could

take Duract, his physician had to make an independent medical

judgment to prescribe it. 7

Where an element of standing “depends on the

unfettered choices made by independent actors

not be fore t he courts and whose exercise of

broad and legi

t imate discretion the courts

cannot presume either to control or to predict

. . . it becomes the bur den o f t he plaintiff to

adduce facts showing that those choices have

been or will be made in such a manner as to

produce causation.” Id. at 562. Thus, to establish causation, plaint iffs must show that had

Wyeth acted “lawfully” (produced a safer drug

or provided more extensive warnings), the

physicia ns would not have prescribed 

### S S and

7 See Burton v. Am. Home Prods. (In re Norplant Contraceptive Prods. Liab. Liti g.) , 955 F.

Supp. 700, 703 (noting the applicab ility of the

“learned inter m ediary doctrine”), aff’d

, 165 F.3d

374 (5th Cir. 1999).7

the plaint iffs would not have purchased 

### SSDuract.

Rivera and the class do not even assert this

conclusion, much less a dduce any facts supporting it. One logically could assume that if

Duract had been safer, physicians would have

been more willing to prescribe it. And even if

Wyeth had issued more warnings (plaintiffs do

no t indicate which warnings were missing),

plaintiffs never assert that they were part of a

risk group that should have been warned. To

find causat io n, we would have to infer the

absurd 

### SS for example, that an extra war ning,

t hough inapplicable to Rivera, might h ave

scared her and her doctor from Duract. Such

reasoning is too speculative to establish Article

III standing. 8

Becau se t his suit does not present a justiciable case or controversy under Article III,

we do not reach the class certification question

and int ima

t e no view on its merits. We REVERSE and RENDER a judgment of dismissal.

8 See Defenders of Wildlife , 504 U.S. at 566

(stating that “[s]tandin g is not an ingenious academic exercise in the conceivable” (intern al quotations and citation omitted)).