Rivera, et al v. Wyeth-Ayerst, et al

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), defen-
dants Wyeth-Ayerst Laboratories (“Wyeth”)
and American Home Products Corporation ap-
peal the certification of a nationwide class of
drug purchasers and their insurance compa-
nies. 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.

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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 man-
agement 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 clini-
cal 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 Administra-
tion (“FDA”) approved Duract, its labeling,
and its package insert.
In December 1997, Wyeth received three
reports of liver failure by patients who had tak-
en Duract for long-term relief without un-
dergoing 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 days or
less).” After receiving new reports of liver
failure among long term users, Wyeth volun-
tarily 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
from the market. Wyeth established a program
to refund Duract users for any unused portion
of their prescription.
II.
Elizabeth Rivera and the Arkansas Carpen-
ters Health and Welfare Fund (the “Fund”)
filed this nationwide class action suit. Rivera
seeks to represent all patients who were pre-
scribed, had purchased, and had ingested Dur-
act but suffered no physical or emotional1 in-
jury. 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 conse-
quences.
Although the class includes citizens of all
fifty states and the District of Columbia, plain-
tiffs state their complaint under Texas law.
They allege that Wyeth failed to warn of Dur-
act’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 merchant-
ability, 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 ori-
ginal complaint, their second amended complaint,
or their brief to this courtSSthat they suffered emo-
tional 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 worry-
ing about potential illness caused by the medicine,”
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.

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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; accord-
ingly, on November 28, 2000, the parties sub-
mitted a proposed discovery plan to the dis-
trict court. That same day, despite the plain-
tiffs’ 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
of the pretrial conference, and the pretrial con-
ference had been held only thirteen days ear-
lier, 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’s re-
imbursement of Duract 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 Wy-
eth’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 pursu-
ant to rule 23(f). Apparently estimating that
their odds on appeal were bleak, plaintiffs
moved the district court to issue an order “ex-
pressing the court’s intent to vacate the class
certification order and to reconsider the class
certification issue upon remand.” The plain-
tiffs 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 re-
mand; nonetheless, the court denied the mo-
tion on the stated ground of lack of jurisdic-
tion.
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 argu-
ment, the attorney for Rivera and the Fund did
just that, admitting that only a “feeling of ob-
ligation 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: Be-
cause this suit does not even present a justicia-
ble 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 central mechanism of separation
of powers depends largely upon common un-
derstanding 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.

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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 plain-
tiffs, 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 funda-
mental 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 cer-
tification 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 re-
view 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, plaintiffs must
demonstrate “an invasion of a legally protected
interest which is . . . concrete and particular-
ized.” 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. Wyeth-
Ayerst 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 funda-
mental 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 are “logically
antecedent to the existence of any Article III is-
sues,” Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 612 (1997); accord Ortiz v. Fibreboard
Corp., 527 U.S. 815, 831 (1999) (citations omit-
ted), 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 certifica-
tion 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)).

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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 defec-
tive; other patients were injured by Duract;
Rivera would like her money back. The plain-
tiffs do not claim Duract caused them physical
or emotional injury, was ineffective as a pain
killer, or has any future health consequences to
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 Wy-
eth violated the implied warranty of merchant-
ability by selling a defective drug, but then
aver that the drug was not defective as to
them. Similarly, the plaintiffs claim Wyeth vi-
olated the DTPA by failing to issue warnings
sufficient to advise injured users, but then con-
cede 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 re-
quires that the party seeking review be himself
among the injured.” Sierra Club v. Morton,
405 U.S. 727, 734-35 (1972); accord Defend-
ers 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 plain-
tiffs 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 le-
gally protected interest” is their claim they
were denied “the benefit of the bargain” due to
them under general, contract law type princi-
ples. 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 dam-
ages equal to the difference in value between
what they were promised (an all fiberglass
boat) and what they received (the fiberglass-
wood hybrid). In holding that the Coghlans
had suffered an injury, we explained that
[t]he key distinction between [the Cogh-
lans’] 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 they were 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-

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ples they invoke do not help them. By plain-
tiffs’ own admission, Rivera paid for an effec-
tive pain killer, and she received just thatSSthe
benefit of her bargain. “An award of damages
for breach of contract is supposed to place the
injured party as nearly as po ssible in the po-
sition that he would have occupied had the
defaulting party performed the contract.” Id.
at 453-54. Duract worked. Had Wyeth pro-
vided additional warnings or made Duract saf-
er, 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 claim in
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, they can obscure the fact that they have
asserted no concrete injury. Such artful plead-
ing, 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 adver-
sary context and in a form historically viewed
as capable of judicial resolution.’” Sierra
Club, 405 U.S. at 732 (quoting Flast v. Co-
hen, 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 negli-
gence 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 re-
quires “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 (internal quotations 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 in-
dependent medical judgment to prescribe it.7
Where an element of standing “depends on the
unfettered choices made by independent actors
not before t he 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 es-
tablish causation, plaintiffs must 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 Nor-
plant 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).

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the plaintiffs would not have purchasedSSDur-
act.
Rivera and the class do not even assert this
conclusion, much less adduce any facts sup-
porting 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 is too speculative to establish Article
III standing.8
Because this suit does not present a justi-
ciable case or controversy under Article III,
we do not reach the class certification question
and intimate no view on its merits. We RE-
VERSE and RENDER a judgment of dis-
missal.
8 See Defenders of Wildlife, 504 U.S. at 566
(stating that “[s]tanding is not an ingenious aca-
demic exercise in the conceivable” (internal quo-
tations and citation omitted)).

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