MERCK & COMPANY Inc. IN INTEREST
| Decision Date | 24 March 2011 |
| Docket Number | 2010-SC-000529-MR |
| Parties | MERCK & COMPANY, INC., APPELLANT HON. STEPHEN D. COMBS (JUDGE, PIKE CIRCUIT COURT), APPELLEE AND JAMES RATLIFF, REAL PARTY IN INTEREST |
| Court | United States State Supreme Court — District of Kentucky |
OPINION TEXT STARTS HERE
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
PIKE CIRCUIT COURT NO. 04-CI-01493
MEMORANDUM OPINION OF THE COURTAppellant, Merck & Co., Inc., appeals from an order of the Court of Appeals denying its petition for a writ of mandamus against Appellee, Judge Stephen D. Combs, of the Pike Circuit Court. The underlying lawsuit, brought by the Real Party in Interest, James Ratliff, is a class action alleging that Merck concealed the dangerous side effects of the prescription pain medication marketed under the name "Vioxx". Merck now seeks an order directing the Pike Circuit Court to enter summary judgment in its favor or, alternatively, to vacate the court's order certifying a class action pursuant to CR 23.
Merck contends that it was entitled to summary judgment on Ratliff's claims. Alternatively, Merck contends that the class certified in this case is impermissible because Ratliff is an improper class representative, and becauseclass issues do not predominate over individualized issues. For the reasons set forth below, we affirm the Court of Appeals.
On May 20, 1999, the Food and Drug Administration ("FDA") approved Vioxx for sale in the United States. Vioxx quickly gained widespread acceptance among physicians treating patients with arthritis and other conditions causing chronic or acute pain. However, on September 30, 2004, Merck withdrew Vioxx from the market after a study indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as heart attacks and strokes. Following the withdrawal of Vioxx, the FDA issued a Public Health Advisory informing all patients who were currently taking Vioxx to contact their physician for guidance regarding the discontinuation of the drug and alternative therapies. In a press release, Merck likewise acknowledged that patients who were currently taking Vioxx "should contact their health care providers to discuss discontinuing the use of Vioxx and possible alternative treatments." Thousands of lawsuits followed in both state and federal court. See In re Vioxx Products Liability Litigation, 401 F.Supp. 2d 565, 571 (E.D. La. 2005).
Ratliff, who took Vioxx from January of 2000 through early 2004, filed the present class action litigation in Pike Circuit Court on behalf of himself and all others similarly situated in Kentucky. As ultimately certified by the circuit court, the class is defined as being comprised "of all Kentucky residents whohave purchased and taken Vioxx during the period of May 1999 through September 30, 2004, and who, upon recommendation and advice of the FDA and Merck have or will contact physicians to seek advice regarding their Vioxx use[.]
As grounds for relief Ratliff pled: (1) violations of the Kentucky Consumer Protection Act; (2) fraudulent concealment and/or misrepresentation; (3) negligent and/or grossly negligent misrepresentation; and (4) unjust enrichment. As damages he sought compensatory damages for: (1) reimbursement of the cost of the drug itself; (2) reimbursement for the cost of the precautious medical exams; and (3) the loss of wages for lost work-time to receive the medical examinations. Collectively, his damages amount to about $350.00. He projects that other members of the putative class would experience similar damages.1 Merck opposed the motion to certify the class on the grounds that: (1) plaintiffs causes of action require proof of causation arid reliance, which would entail individualized inquiries that are unsuited for a class trial; (2) Ratliff is neither a typical nor adequate class representative; and (3) the proposed class definition is unworkable because there is no practical way to ascertain class membership. At the same time, Merck moved forsummary judgment on Ratliff s claims on the grounds that: (1) Kentucky law does not allow product liability actions where the plaintiff was not injured by the product's alleged defect; (2) Ratliff has not suffered any actual economic loss because under his prescription drug plan he paid the exact same co-pay for Vioxx as he did for the prescription pain medication he would have taken in lieu of Vioxx; and (3) Ratliff lacks privity with Merck as required by Kentucky law to assert a claim under the Consumer Protection Act.
On April 2, 2010, the circuit court entered orders denying Merck's motion for summary judgment and certifying the class as described above.
On May 6, 2010, Merck petitioned the Court of Appeals for writ of mandamus directing the circuit court to enter judgment in Merck's favor or, alternatively, to vacate its order certifying the class. On July 12, 2010, the Court of Appeals, relying principally upon our decision in Garrard County Board of Education v. Jackson, 12 S.W.3d 686 (Ky. 2000), entered an order denying Merck's petition. This appeal followed.
"A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted."Hoskins v. Maricle, 150 S.W.3d 1,10 (Ky. 2004). Although Hoskins involved a writ of prohibition, we have applied the same standard for the issuance of a writ of mandamus. Hodge v. Coleman, 244 S.W.3d 102, 109 (Ky. 2008), n. 25. Relief by way of prohibition or mandamus is an "extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief/' Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). We review a decision to deny a writ for abuse of discretion. Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005).
Merck contends that the Court of Appeals should have granted a writ of prohibition against further proceedings as a class action for the same reasons upon which the circuit court should have denied certification of the described class. We need not look at the specific merits of Merck's arguments in favor of a writ of prohibition, because Jackson, 12 S.W.3d 686, is dispositive. In Jackson, the class action plaintiffs filed a lawsuit in Garrard Circuit Court alleging exposure to unsafe environmental conditions at a local middle school. The trial court granted the plaintiffs' motion to certify the matter as a class action. The defendants sought mandamus relief in the Court of Appeals for an order instructing the circuit court to decertify the class action, which was denied.
In affirming the Court of Appeals' denial of the writ, we stated that "the act of class certification itself is not a proper subject for relief in the form of awrit of mandamus [.]". Id. at 689. Citing the mandatory requirements for mandamus relief of irreparable harm and no adequate remedy by appeal, we made clear that "[w]e do not use mandamus as a corollary to our 'error correction power' to revise or correct the discretion of an inferior court[,]" and held that "the appellants have not demonstrated that an erroneous class certification constitutes a substantial miscarriage of justice or would prejudice them in a manner which the courts cannot address on appeal, [and so] we do not reach the issue of whether the trial court erred in certifying the case as a class action." Id. In summary, Jackson holds that a petition for a writ of mandamus is not a proper medium for challenging the trial court's discretion in certifying a class.
Notwithstanding the foregoing language, Merck contends that the Jackson decision left the door open for mandamus review in certain cases pursuant to our citation of recent federal court decisions in which the courts granted writs of mandamus and ordered the decertification of class actions in medical product litigations. Id. at 689-690 fnl; see also In Re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir. 1995); In Re American Medical Systems, Inc., 75 F.3d 1069, 1074 (6th Cir. 1996); In Re Bendectin, 749 F.2d 300, 307 (6th Cir. 1984). However, we emphasized in Jackson that "each of [the federal court] decisions presented objective evidence of prejudice to the parties or involved collateral consequences to non-parties, [and thus] we do not feel that they are factually germane to the appellant's situation." Jackson, 12S.W.3d at 690.
In further discussing and distinguishing these cases we stated:
Each of the federal cases cited by the appellants not only involved multi-state litigation over medical products, but also presented issues other than erroneous class certification. In Rhone-Poulenc Rorer, Inc., supra, the Seventh Circuit Court of Appeals took issue with the trial court's certification of a class with respect to...
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