White v. Wyeth, No. 35296.

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH, Justice:
• Citation: 705 S.E.2d 828,227 W.Va. 131
• Parties: Shirley WHITE, Cathy Dennison, and Jenny Tyler, on Behalf of Themselves and A Class of Others Similarly Situated, Plaintiffs Below, Respondentsv.WYETH, f/k/a American Home Products, d/b/a Wyeth–Ayerst Laboratories, Dannemiller Memorial Education Foundation, and Ketchum, Inc., Defendants Below, Petitioners.
• Decision Date: 17 December 2010
• Docket Number: No. 35296.

227 W.Va. 131
705 S.E.2d 828

Shirley WHITE, Cathy Dennison, and Jenny Tyler, on Behalf of Themselves and A Class of Others Similarly Situated, Plaintiffs Below, Respondents
v.
WYETH, f/k/a American Home Products, d/b/a Wyeth–Ayerst Laboratories, Dannemiller Memorial Education Foundation, and Ketchum, Inc., Defendants Below, Petitioners.

No. 35296.

Supreme Court of Appeals of West Virginia.

Submitted June 1, 2010.Decided Dec. 17, 2010.

[705 S.E.2d 830]

Syllabus by the Court

1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

2. “In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.” Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

3. “A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute.” Syl. Pt. 3, Meadows v. Wal–Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).

4. “ ‘Proximate cause’ must be understood to be that cause which in actual sequence, unbroken by an independent cause, produced the wrong complained of, without which the wrong would not have occurred.” Syl. Pt. 3, Webb v. Sessler, 135 W.Va. 341, 63 S.E.2d 65 (1950).

5. A private cause of action brought pursuant to the provisions of West Virginia Code § 46A–6–106(a) (2005) of the West Virginia Consumer Credit and Protection Act must allege: (1) unlawful conduct by a seller; (2) an ascertainable loss on the part of the consumer; and (3) proof of a causal connection between the alleged unlawful conduct and the consumer's ascertainable loss. Where the alleged deceptive conduct or practice involves affirmative misrepresentations, reliance on such misrepresentations must be proven in order to satisfy the requisite causal connection.

6. The private cause of action afforded consumers under West Virginia Code § 46A–6–106(a) (2005) does not extend to prescription drug purchases.

Pamela D. Tarr, Amber Hoback, Jackson Kelly, Charleston, WV, Lisa M. Duggan, G. Gregg Webb, F. Lane Heard, III, Williams & Connolly, Washington, DC, for Defendant, Wyeth & Ketchum.W. Henry Jernigan, Dinsmore & Shohl, Charleston, WV, for Amicus, Product Liability Council.Anthony Majestro, Charleston, WV, for Amicus, WV Association for Justice.William Alden McDaniel, Jr., Pro Hac Vice, Baltimore, MD.W. Stuart Calwell, Jr., Thomas Rodd, The Calwell Practice, Charleston, WV, for the Plaintiffs.William David Wilmoth, Lindsay E. Agee, Steptoe & Johnson, Wheeling, WV, for the Defendant, Dannemiller.Michael J. Farrell, Erik W. Legg, Farrell, Farrell & Farrell, Huntington, WV, Jill Miles, Assistant Attorney General, Counsel for Amicus, WV Attorney General.

McHUGH, Justice:

This case is before the Court on certified question raised by the Putnam County Circuit Court in its June 9, 2009, “Order Issuing Certificate of Certified Question,” and its July 14, 2009, “Amended Order Denying Defendants' Motion to Dismiss and, Alternatively, for Summary Judgment, but Certifying a Legal Question to the West Virginia Supreme Court of Appeals.” The question

[705 S.E.2d 831]

stems from a suit filed by respondents herein, plaintiffs below, Shirley White, Cathy Dennison, and Jenny L. Tyler as users of hormone replacement drugs, on behalf of themselves and a class of others similarly situated (hereinafter “Respondents”), pursuant to the West Virginia Consumer Credit and Protection Act (hereinafter “WVCCPA”), against petitioners herein, defendants below,¹ Wyeth, f/k/a American Home Products, d/b/a Wyeth–Ayerst Laboratories, and Ketchum, Inc.² (hereinafter collectively referred to as “Wyeth”). Following entry of an order denying Wyeth's alternative motions for dismissal and summary judgment propounded on the basis of lack of standing, the following question was submitted for this Court's consideration in accord with West Virginia Code § 58–5–2 (1998) and Rule 13 ³ of the West Virginia Rules of Appellate Procedure:

Does the “as a result of” language in Section 46[A]–6–106(a) of the West Virginia Consumer Credit and Protection Act require a plaintiff, in a private cause of action under the Act, to allege and prove that he or she purchased a product because of and in reliance upon an unlawful deceptive act?The lower court answered the question in the negative.

I. Factual and Procedural Background

The underlying consumer fraud suit was filed pursuant to the WVCCPA in April 2004 by Respondents as private citizens who purchased prescription hormone replacement therapy (“HRT”) drugs. West Virginia Code § 46A–6–106(a) specifically provides in pertinent part that:

Any person who purchases ... goods ... and thereby suffers any ascertainable loss of money or property ... as a result of the use or employment by another person of a method, act or practice prohibited or declared to be unlawful by the provisions of this article [entitled General Consumer Protection] may bring ... [a civil] action ... to recover actual damages or two hundred dollars, whichever is greater.

Respondents' complaint, filed on behalf of themselves and a class of others similarly situated,⁴ alleged that the named defendants used unfair and deceptive practices in promoting HRT prescription drug products to doctors and patients for treatment of serious menopausal disorders by using misleading statements in advertising, marketing and labeling of the products. The complaint does not allege that any of the named Respondents or their doctors ever received, read or relied upon the alleged misrepresentations.

Following completion of class certification discovery, Wyeth filed alternative motions for dismissal or summary judgment on October 27, 2008. In support of these motions Wyeth argued that Respondents could not establish that they had standing to sue because they failed to meet their burden of showing a causal connection between their individual claims of injury and any alleged unfair or deceptive conduct attributed to Wyeth. Wyeth particularly noted the lack of evidence demonstrating that: Respondents received information from Wyeth about HRT; Respondents decided to purchase HRT drugs because of anything they learned from Wyeth; Respondents' treating physicians considered information from Wyeth when they issued the prescriptions for HRT drugs to Respondents; or that Wyeth concealed any studies or other information about HRT drugs.

Respondents countered by arguing that the statutory language only requires that they prove causation by alleging that Wyeth engaged in deceptive practices and that Respondents were harmed. They maintained that reliance on deceptive statements or

[705 S.E.2d 832]

practices need not be demonstrated because the WVCCPA only requires that their pleadings state that they “suffered ascertainable loss” “as a result of” various unfair and deceptive acts of Wyeth. W. Va.Code § 46A–6–106(a).

The lower court found that the WVCCPA does not require plaintiffs pursuing a private cause of action to allege reliance in their complaints. The court then denied Wyeth's motions to dismiss or for summary judgment for lack of standing. The lower court observed that the interpretation of the phrase “as a result of” in West Virginia Code § 46A–6–106(a) was a matter of first impression and was a determinative issue in a potentially large and costly suit. Concerned with the seeming conflict between its interpretation of the statutory phrase in light of the constitutional standing requirement regarding causal connection,⁵ the lower court certified the issue as a legal question to this Court.

Wyeth petitioned this Court for review of the certified question, which was accepted by order dated November 12, 2009. Thereafter, we granted leave to the Product Liability Advisory Council to file an amicus curiae brief in support of Wyeth. We also granted leave to the West Virginia Attorney General and the West Virginia Association of Justice to file amicus curiae briefs in support of Respondents.

II. Standard of Review

As stated in syllabus point one of Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.”

III. Preliminary Issues

The question as certified from the lower court is:

Does the “as a result of” language in Section 46[A]–6–106(a) of the West Virginia Consumer Credit and Protection Act require a plaintiff, in a private cause of action under the Act, to allege and prove that he or she purchased a product because of and in reliance upon an unlawful deceptive act?

The positions of the parties regarding the meaning of the phrase “as a result of” was outlined in the lower court's July 14, 2009, amended order as follows:

Wyeth argues that the “as a result of” language contained in the statute requires the Plaintiffs to allege that they relied, or their doctors relied, on Wyeth's allegedly deceptive actions when they made the decision to purchase hormone replacement therapy. Under Wyeth's theory, Article VIII of the West Virginia Constitution requires the Plaintiffs to allege reliance as part of their claim that Wyeth violated the provisions of the WVCCPA.

The Plaintiffs argue that ... the statutory language only requires them to prove causation ... and [they] may recover regardless of whether the Plaintiffs relied on the deceptive statements of Wyeth.... * * * The Plaintiffs aver that W. Va.Code § 46A–6–102(7)(M) when read with W. Va.Code § 46A–6–106, does not require the Plaintiffs to prove reliance. * * * Thus, the Plaintiffs' advance the argument that when the Plaintiffs received drugs that were different from or inferior to that which they were entitled to receive, they did not receive the benefit of their...