REVISED FEBRUARY 22, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 01-40122

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ELIZABETH RIVERA; ARKANSAS CARPENTERS HEALTH AND WELFARE FUND,

ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellees,

VERSUS

WYETH-AYERST LABORATORIES,

A DIVISION OF AMERICAN HOME PRODUCTS CORPORATION;

AMERICAN HOME PRODUCTS CORPORATION,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

February 15, 2002

Before SMITH and EMILIO M. GARZA,

Circuit Judges, and CUMMINGS,

*

District Judge.

JERRY E. SMITH, Circuit Judge:

Pursuant to FED. R. CIV. P. 23(f), defendants Wyeth-Ayerst Laboratories (“Wyeth”)

andAmerican Home Products Corporation appeal the certification 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 the 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 for short-term management of acute pain. Although all NSAID’s

carry certain risks of liver and gastrointestinal

damage, clinicaltrialsrevealed that Duract had

additional negative effects. Wyeth included a

package insert in each box of Duract detailing

these dangers, reporting the results ofthe clinical trials, recommending Duract be used for

only short periods (“generally less than ten

days”), and warning that Duract may not be

appropriate for those with preexisting liver

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

and its package insert.

In December 1997, Wyeth received three

reports ofliver 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

liverfailure and reemphasizing that Duract was

intended “only for the short term (10 days 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 Duract, eleven had taken the drug

for over ten days, and one had preexisting liver

disease. Wyeth stated that because no change

in Duract’s package insert could guarantee

physicians would stop prescribing the drug for

long-term use, it was withdrawing Duract

fromthe market. Wyeth established a program

to refund Duract users for any unused portion

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 physical or emotional1

injury. In fact, the class explicitly excludes any

patients who have been injured by Duract.

Nor do plaintiffs claim Duract was ineffective

as a pain killer or has any future health consequences. 

Although the class includes citizens of all

fifty states and the District of Columbia, plaintiffs 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 Deceptive Trade

Practices Act (“DTPA”), TEX. BUS. & COM.

CODE ANN. §§ 17.50, 17.46 (Vernon Supp.

1998), (2) the implied warranty of merchantability, TEX. BUS. & COM. CODE ANN.

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

law unjust 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 allegedSSin their original complaint, their second amended complaint,

or their brief to this courtSSthat they suffered emotional 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 themedicine,”

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

Wyeth-Ayerst Labs., 121 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

that 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 plaintiffs’ concession in favor of discovery, the

court denied Wyeth’s request for discovery

and an evidentiary hearing and certified the

class under FED. R. CIV. P. 23(b).2

Even though FED.R.CIV.P. 26(d) prohibits

discovery and evidentiary hearings in advance

ofthe pretrial conference, and the pretrial conference had been held only thirteen days earlier, the district court rebuked Wyeth for not

having pursued discovery over the past four

months and decided 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’sreimbursement ofDuract patients, the court held

that the claims of Rivera and the Fund “appear

to be typical” of the class members. 

Similarly, 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 eventually to provide a workable

subclass plan that would solve any problems.

Wyeth timely filed, and this court granted,

an application for interlocutory appeal pursuant to rule 23(f). Apparently estimating that

their odds on appeal were bleak, plaintiffs

moved the district court to issue an order “expressing the court’s intent to vacate the class

certification order and to reconsider the class

certification issue upon remand.” The plaintiffs noted that the district court had erred in

failing to conduct a choice-of-law analysis and

failing to demand plaintiffs submit a subclass

plan before certification; plaintiffs requested

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

III.

Rarely on appeal doesthe 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 district court order”

moved him to argue when it was “crystal

clear” we would have to vacate and remand. 3

Counsel was only half right, however: Because thissuit does not even present a justiciable case or controversy under Article III, we

vacate and render a judgment of dismissal.

IV.

Article III limits the judicial power of the

federal courts to “Cases” and “Controversies”

but does not define those terms. Instead, “the

Constitution’s centralmechanism of separation

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

to legislatures, to executives, and to courts.”

Lujan v. Defenders of Wildlife, 504 U.S. 555,

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

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

584 (S.D. Tex. 2000).

3 We are sympathetic to counsel’s plight on

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

an officer of the court, in acknowledging the

weakness of the position thrust on him and his

clients by the district court.
4

part” of this common understanding is the

doctrine of standing. Id. at 560.

The “irreducible constitutional minimum of

standing contains three elements”: “[T]he

plaintiff 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 likely . . . that the injury will be

redressed by a favorable decision.” Id. at 560-

61 (internal quotations omitted).4 The plaintiffs, as the party invoking federal jurisdiction,

bear the burden of establishing these elements.

Steel Co. v. Citizens 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 before it certified the class.5

Had it done so, it would have found that

plaintiffs had demonstrated neither injury nor

causation.

A.

Even though the certification inquiry is

more straightforward, we must decide standing

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

The procedural posture of this 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.” Bertulli v. Indep. Ass’n of

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

2001). Accordingly, standing maySSindeed

mustSSbe addressed even under the limits of a

rule 23(f) appeal. Id.6

Standing is a question of law that we review de novo. Pederson v. La. State Univ.,

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

for clear error all facts expressly or impliedly

found by the district court. Id.

B.

To establish an injury in fact, plaintiffsmust

demonstrate “aninvasion of a legallyprotected

interest which is . . . concrete and particularized.” Defenders 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. 584, 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 forsuitsin

which the class certification issues are “logically

antecedent 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, 831 (1999) (citations omitted), this exception is not applicable here. 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 requirement, [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 something like

this: Wyeth sold Duract; Rivera purchased

and used Duract; Wyeth did not list enough

warnings on Duract, and/or Duract was defective; other patients were injured by Duract;

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

or emotional injury, was ineffective as a pain

killer, or has any future health consequencesto

users. Instead, they assert that their loss of

cash is an “economic injury.”

The plaintiffs never define this “economic

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

listing 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-class

member patients. The plaintiffs claim that Wyeth violated the implied warranty of merchantability by selling a defective drug, but then

aver that the drug was not defective as to

them. Similarly, the plaintiffs claim Wyeth violated the DTPA by failing to issue warnings

sufficient to advise injured users, but then concede 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 requiresthat the party seeking review be himself

among the injured.” Sierra Club v. Morton,

405 U.S. 727, 734-35 (1972); accord Defenders of Wildlife, 504 U.S. at 563. It is not

enough that Wyeth may have violated a legal

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

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

is that the injury be personal.” Bertulli, 242

F.3d at 295.

The plaintiffs’ most plausible argument for

finding they have suffered “invasion of a legally protected interest” is their claim they

were denied “the benefit ofthe bargain” due to

them under general, contract law type principles. The plaintiffs do not actually argue

breach of contractSSlikely a smart decision,

given that there was no contract. Instead, they

invoke Coghlan v. Wellcraft Marine Corp.,

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

given that Coghlan explicitly distinguishes

valid, contract law suits from the “no-injury

products liability law suit” plaintiffs bring.

The Coghlan plaintiffs 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 fiberglasswood hybrid). In holding that the Coghlans

had suffered an injury, we explained that

[t]he keydistinction between [theCoghlans’] case and a “no-injury” products

liability suit is that the Coghlans’ claims

are rooted in basic contract law rather

than the law of product liability: the

Coghlans assert theywere promised one

thing but were given a different, less

valuable thing. The core allegation in a

no-injury product liability 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 ignore the fact that

plaintiffs have no contract, the general princi-
6

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

benefit of her bargain. “An award of damages

for breach of contract issupposed to place the

injured party as nearly as possible in the position that he would have occupied had the

defaulting party performed the contract.” Id.

at 453-54. Duract worked. Had Wyeth provided additional warnings or made Duract safer, the plaintiffs would be in the same position

they occupy now. Accordingly, they cannot

have a legally protected contract interest.

The confusion arises from the plaintiffs’

attempt to recast their product liability claimin

the language of contract law. The wrongs

they allegeSSfailure to warn and sale of a

defective productSSare products liability

claims. Id. at 455 n.4. Yet, the damages they

assertSSbenefit of the bargain, out of pocket

expendituresSSare contract law damages. The

plaintiffs apparently believe that if they keep

oscillating between tort and contract law

claims, theycan obscure the fact that theyhave

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.’” Sierra

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 with 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

curedSSperhaps 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 establish causation. Standing requires “a causal connection between the injury

and the conduct complained ofSSthe injury has

to be fairly traceable to the challenged action

of the defendant, and not the result of the

independent action of some third party not

before the court.” Defenders of Wildlife, 504

U.S. at 560 (internalquotations and alterations

omitted).

The facts provide plaintiffs an additional

hurdle in demonstrating 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 ofstanding “depends on the

unfettered choicesmade byindependent actors

not before the courts and whose exercise of

broad and legitimate discretion the courts

cannot presume either to control or to predict

. . . it becomes the burden of the 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, plaintiffsmust show that had

Wyeth acted “lawfully” (produced a safer drug

or provided more extensive warnings), the

physicians would not have prescribedSSand

7

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

Supp. 700, 703 (noting the applicability of the

“learned intermediary doctrine”), aff’d, 165 F.3d

374 (5th Cir. 1999).
7

the plaintiffswould not have purchasedSSDuract.

Rivera and the class do not even assert this

conclusion, much less adduce 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

not indicate which warnings were missing),

plaintiffs never assert that they were part of a

risk group that should have been warned. To

find causation, we would have to infer the

absurdSSfor example, that an extra warning,

though inapplicable to Rivera, might have

scared her and her doctor from Duract. Such

reasoning istoo speculative to establishArticle

III standing.8

Because this suit does not present a justiciable case or controversy under Article III,

we do not reach the class certification question

and intimate 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]tanding is not an ingenious academic exercise in the conceivable” (internal quotations and citation omitted)).