874 F. Supp. 2d 599
E.D. La.2012Background
- MDL governing Vioxx products liability litigation against Merck; Walker asserts CPPA claim arising from Vioxx promotion and purchase; Walker previously dismissed for lack of standing under DC False Claims Act and CPPA; case transferred to MDL for coordinated pretrial matters; Merck moves for judgment on the pleadings seeking dismissal for lack of Article III standing; Walker moves to amend to add a Rule 23 class and address standing deficiencies; court has evaluated sufficiency of economic and statutory injuries and consumer-merchant relationships under CPPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Walker have Article III standing based on economic injury under CPPA? | Walker alleges overpayment/economic injury from Merck's misrepresentation. | Merck argues no economic injury from purchasing a product that allegedly worked and caused no personal harm. | No sufficient economic injury to establish standing. |
| Does Walker have Article III standing based on statutory injury under CPPA? | Merck violated his statutory right to information under the CPPA. | ||
| Walker asserts nexus between Merck's conduct and his rights. | Plaintiff lacks direct personal impact and causation linking conduct to him. | Statutory injury lacking; no standing. | |
| Is Walker within the CPPA’s consumer-merchant class for standing? | Plaintiff asserts broad reach of CPPA and consumer status. | Plaintiff does not show he is a consumer-merchant within CPPA's scope. | Plaintiff not within CPPA class; no standing. |
| Would amendment to the complaint be futile on standing grounds? | Second Amended Complaint would cure standing deficiencies. | Amendment would be futile due to lack of standing and causation. | Amendment futile; dismissal affirmed. |
Key Cases Cited
- Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002) (injury-in-fact required for standing; no such injury here)
- Williams v. Purdue Pharma Co., 297 F.Supp.2d 171 (D.D.C. 2003) (deceptive advertising without personal injury or receipt of misrepresentation lacks standing)
- Shaw v. Marriott International, 605 F.3d 1039 (D.C. Cir. 2010) (statutory injury can confer standing if plaintiff is in CPPA class; here not)
- Grayson v. AT&T Corp., 15 A.3d 219 (D.C. 2011) (standing under CPPA requires identifiable consumer rights; facts insufficient)
- In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012) (plaintiff must plausibly link injuries to misrepresentations)