Kwaak v. Pfizer

• Decision Date: 29 February 2008
• Docket Number: No. 07-P-317.,07-P-317.
• Citation: 881 N.E.2d 812,71 Mass. App. Ct. 293
• Court: Appeals Court of Massachusetts
• Parties: Sherry KWAAK & another<SMALL><SUP>1</SUP></SMALL> v. PFIZER, INC.

881 N.E.2d 812

71 Mass. App. Ct. 293

Sherry KWAAK & another¹ v. PFIZER, INC.

No. 07-P-317.

Appeals Court of Massachusetts, Middlesex.

Argued December 17, 2007.

Decided February 29, 2008.

Thomas A. Smart, New York (Richard A. De Sevo, New York, with him) for the defendant.

Kenneth. D. Quat, Concord (David Pastor, Boston, with him) for the plaintiffs.

Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan, for New England Legal Foundation, amicus curiae, submitted a brief.

Present: COWIN, BROWN, & KAFKER, JJ.

KAFKER, J.

Sherry Kwaak and Jerry Natale, by separate complaints filed in Superior Court, sued Pfizer, Inc. (Pfizer), the manufacturer of Listerine brand mouthwash (Listerine), alleging that a Listerine advertising campaign that claimed that Listerine was "as effective as floss" was deceptive, violated G.L. c. 93A, § 2, and thus caused them and others similarly situated economic injury. The plaintiffs sought certification of a class of all Massachusetts consumers who purchased Listerine during the advertising campaign. A Superior Court judge allowed a motion for class certification under both Mass. R.Civ.P. 23, 365 Mass. 767 (1974) (rule 23), and G.L. c. 93A, § 9(2), and Pfizer filed an interlocutory appeal. Because the facts underlying the claims of the purported class are too diverse, we reverse the order of the Superior Court granting class certification.

Background. In June, 2004, Pfizer began an advertising campaign for Listerine. The advertisements were targeted primarily at nonmouthwash users actively involved in their health care who "know that they should floss on a regular basis—but don't always get to it or do it properly." Secondary targets were current users of Listerine who "embrace the brand and could be encouraged to use it more frequently based on the new claim" that it was as effective as floss.

The new claim arose out of two clinical studies conducted by Pfizer: the Sharma Study, published in the American Journal of Dentistry in 2002, and the Bauroth Study, published in the Journal of the American Dental Association in 2003. As summarized by the Sharma Study, "twicedaily rinsing with [Listerine] is `at least as good as' daily flossing in controlling interproximal gingivitis when both are used unsupervised over a 6-month period."² The studies provided "additional support for the use of [Listerine] as an adjunct to [flossing]." Neither study suggested that "mouthrinse should be used instead of dental floss or any other interproximal cleaning device." The studies also did not compare the benefits provided by Listerine and flossing to those persons with severe gingivitis or periodontitis. The studies recognized that the effectiveness of flossing was apparently dependent on "flossing technique," as many people do not floss correctly. An estimated eighty-seven percent of consumers floss infrequently or do not floss at all.

The advertising campaign included four different television advertisements, print advertising, and labels and tags attached to some bottles of Listerine. Despite some internal disagreement, the American Dental Association approved the advertising. McNeil-PPC, Inc. v. Pfizer, Inc., 351 F.Supp.2d 226, 241 (S.D.N.Y. 2005). The first television advertisements, which were produced in several different versions, claimed that "Listerine's as effective as floss," and "[s]o even if you don't floss like you should, now you can get healthy benefits by simply rinsing." Later versions of the television advertisements added to the statement that "Listerine's as effective as floss in fighting plaque" the caveat "[a]gainst plaque and gingivitis between teeth."³ Later versions also told consumers to "floss daily" and "ask your dentist" and informed consumers that "there's no replacement for floss" or "not a replacement for floss." In its first month or so of television advertising, an estimated sixty-eight million people nationwide had seen the commercials. In Massachusetts, Pfizer aired the advertisements at various times on network, syndicated, and cable television.

The print and bottle label advertisements included the statement, "Only Listerine Antiseptic is clinically proven to be as effective as floss," continuing (in smaller print), "at reducing plaque and gingivitis between the teeth." Later advertisements added the statements "ask your dentist," "floss daily," and "not a replacement for floss."

Pfizer attached some form of label or neck tag making the "as effective as floss" claim to at least some bottles of their Listerine products, while other bottles were never given neck tags or labels making the "as effective as floss" claim. When a dental floss manufacturer sued Pfizer, alleging that the advertisements violated the Lanham Act, 15 U.S.C. 1125(a)(2000) (prohibiting false advertising), a judge of the Federal District Court issued a preliminary injunction preventing Pfizer from continuing the advertising campaign. McNeil-PPC, Inc. v. Pfizer, Inc., 351 F.Supp.2d at 256-257. Pfizer later agreed to stop the campaign completely. The proposed class period, from June 1, 2004, to April 27, 2005, corresponds with the length of Pfizer's advertising campaign. Its television advertisements making the "as effective as floss" claim stopped on January 8, 2005. Sales of Listerine were estimated to increase ten percent during the advertising campaign. During the proposed class period, the price of Listerine Varied throughout the Commonwealth, and from State to State.

Kwaak and Natale, the putative class representatives in this case, both had used Listerine for at least ten years before the advertising campaign. Kwaak bought Listerine and other mouth rinses to freshen her breath and clean her mouth, and Natale bought Listerine to fight plaque and gingivitis and to freshen his breath. Both continued to purchase Listerine during the class period, and Natale has purchased Listerine since commencing this lawsuit. Kwaak switched, to less expensive generic brands of mouthwash when the wife of her lawyer informed her that Listerine "wasn't doing what it stated it was." The plaintiffs do not seek damages based on a negative impact on their health. Instead, they argue that Pfizer's deceptive advertising gave Listerine "an actual value at the time of purchase less than the value paid for the product."

Kwaak and Natale testified to seeing television commercials, but not print advertisements, bottle labels, or neck tags. Neither could remember the specific television commercials they saw. Essentially all they remember from the commercials is that Listerine was described as being as effective as floss. Neither testified that the commercials expressly stated that they should stop flossing. In fact, both continued to floss after seeing the commercials, although Natale testified that he did so less frequently. Kwaak testified to buying mate Listerine than before she saw the commercials because she thought it could replace flossing, while Natale did not increase his usage. Neither could remember much of anything about the price they paid for Listerine.

In her pleadings, Kwaak referred to surveys done to calculate the impact of Pfizer's advertisements on the perception of consumers. Kwaak alleged that "31% of those who saw the commercial and 26% of those who viewed the shoulder label took away a replacement message."

A Superior Court judge allowed Kwaak's motion to consolidate her case with that of Natale. Relying on Aspinall v. Philip Morris Cos., 442 Mass. 381, 397, 813 N.E.2d 476 (2004) (Aspinall), another judge allowed the plaintiffs' motion for class certification under both rule 23 and G.L. c. 93A, § 9(2). A single justice of this court granted Pfizer's petition for review of that certification order by a full panel of this court, and Pfizer filed its notice of appeal.

Discussion. The motion judge granted class certification on the grounds that the plaintiffs met the requirements of both rule 23 and G.L. 93A, § 9(2), and so we analyze this case under both sets of requirements.

On a motion for class certification pursuant to either rule 23 or G.L. c. 93A, § 9(2), "[t]he plaintiffs bear the burden of providing information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements of rule 23 [and c.93A § 9(2) ]; they do not bear the burden of producing evidence sufficient to prove that the requirements have been met" (emphasis added). Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 87, 746 N.E.2d 522 (2001). The standard of review of that judgment is abuse of discretion, although as explained below, that discretion has been described somewhat differently for the two different types of class certifications. See id. at 84-85, 746 N.E.2d 522 ("[t]he decision to grant or deny class status under rule 23 is within the broad discretion of the motion judge"); Aspinall, 442 Mass. at 391-392, 813 N.E.2d 476, quoting from Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605-606, 477 N.E.2d 116 (1985) ("A judge possesses `a degree of discretion' in this matter, but when the judge is deciding a certification request under [G.L. c. 93A] § 9(2), the judge must bear in mind `a pressing need for an effective private remedy for consumers'").

Under rule 23(a), a class may be certified "only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or" defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." In addition, the court must find that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.". Mass.R.Civ.P. 23(b).

Under G.L. c. 93A, § 9(2...