MARY PLUBELL, ET AL., Respondent, v. MERCK & CO., INC., Appellant.
WD69808
Missouri Court of Appeals Western District
May 12, 2009
Appeal from the Circuit Court of Jackson County, Missouri, The Honorable William Stephen Nixon, Judge
Merck & Co., Inc. (Merck) appeals from the trial court‘s order certifying a class action for claims brought under the Missouri Merchandising Practices Act (MMPA), sections
Factual and Procedural Background
In May of 1999, Merck received FDA approval to manufacture and market the prescription drug Vioxx.2 Vioxx was sold as a non-steroidal anti-inflammatory drug and pain medication for the treatment of certain arthritic conditions, acute pain, and dysmenorrheal. By the year 2000, the drug‘s worldwide sales exceeded $2 billion. By 2001, Merck reported that Vioxx was “the world‘s fastest growing branded prescription” and its second largest-selling medicine.
A study performed by Merck between January 1999 and March 2000 (the VIGOR study) showed that people who took Vioxx
Plaintiffs had been prescribed Vioxx. They filed suit as putative class representatives seeking economic damages under the MMPA for Missouri residents who had purchased Vioxx for personal or family use. They alleged that Merck engaged in unlawful practices, “including deception, false promises, misrepresentation, and/or the concealment, suppression, or omission of material facts,” by failing to disclose and actively concealing the drug‘s risks. They further alleged that they and other class members “suffered economic damages in that the product they and other class members purchased was worth less than the product they thought they had purchased had [Merck‘s] representations been true.” Merck moved for summary judgment, claiming that Ms. Plubell‘s insurance paid for her Vioxx prescription and that she could not state a claim under the MMPA. The trial court denied the motion. Merck filed a motion to dismiss, claiming Plaintiffs had failed to allege an ascertainable loss or that Merck had caused any ascertainable loss. The trial court denied the motion. Plaintiffs moved for class certification. After a hearing, the trial court certified a class consisting of all Missouri residents who purchased Vioxx for personal or family use, but excluding those who claimed personal injury as a result of taking Vioxx. Merck sought and obtained this court‘s permission to appeal the class certification.
Standard of Review
Whether to certify a class is committed to the trial court‘s discretion. Dale v. DaimlerChrysler Corp, 204 S.W.3d 151, 163-64 (Mo. App. W.D. 2006). We reverse only if its ruling “is so arbitrary and unreasonable as to shock one‘s sense of justice and indicate a lack of careful consideration.” Id. at 164 (quoting Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 410 (Mo. App. W.D. 2000)). This may occur where the court certifies the class because of an erroneous conclusion of law or without a rational basis in the record. Id.
Legal Analysis
“The purpose of Missouri‘s Merchandising Practices Act is to preserve fundamental honesty, fair play and right dealings in public transactions.” Schuchmann v. Air Servs. Heating & Air Conditioning, Inc., 199 S.W.3d 228, 233 (Mo. App. S.D. 2006) (internal quotation marks and citation omitted). The MMPA prohibits “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce” by defining such activity as an unlawful practice.
Predominance
In its first point, Merck asserts that the trial court erred in finding the predominance requirement satisfied because “no single body of evidence would suffice to satisfy the prima facie elements of an MMPA claim on behalf of every putative class member.”
At the class certification stage, our concern is whether the plaintiffs have met the class action requirements. Craft v. Philip Morris Cos., 190 S.W.3d 368, 377 (Mo. App. E.D. 2005). Because the question of class certification is procedural, we do not inquire whether the plaintiffs will prevail on the merits or even whether the plaintiffs have stated a cause of action. Id. In fact, “[t]he trial court has no authority to conduct even a preliminary inquiry” into these issues. Wright v. Country Club of St. Albans, 269 S.W.3d 461, 465 (Mo. App. E.D. 2008). Moreover, because class certification may be modified or even terminated before a decision on the merits, we err on the side of allowing the action. Dale, 204 S.W.3d at 164.
The predominance inquiry for class certification asks whether the class is “seeking to remedy a common legal grievance.” Id. at 175 (internal quotation marks and citation omitted). “Predominance” does not require that all issues be common to the class members. Id. Rather, it requires that common issues substantially predominate over individual ones. Craft, 190 S.W.3d at 381. To classify an issue as common or individual, a court looks to the nature of the evidence required to show the allegations of the petition. Id. at 382. If the same evidence on a given question will suffice for each class member, then it is common; if the evidence on the question varies from member to member, then it is an individual issue. Id. Thus, “‘if the same evidence will suffice for each member to make a prima facie showing as to a given question, then it is a common question.‘” Dale, 204 S.W.3d at 176 (quoting Craft, 190 S.W.3d at 382) (emphasis added). These common issues need not be dispositive of the case. Craft, 190 S.W.3d at 381. Additionally, “‘[a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions.‘” State ex rel. Am. Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483, 488 (Mo. banc 2003) (quoting Alba Conte & Herbert Newberg, Newberg on Class Actions § 4.25, at 172 (4th ed. 2002)).
Consequently, predominance does not require that a single body of evidence satisfy the prima facie elements of an MMPA claim on behalf of every putative class member. Rather, it requires “at least one significant fact question or issue, dispositive or not,” that is common within the class‘s claim. See Dale, 204 S.W.3d at 176. In the present case, the trial court found that the central issue in plaintiffs’ suit is whether Merck violated the MMPA by failing to disclose and concealing Vioxx‘s safety risks. Because that issue—the legality of Merck‘s conduct—is common to all the Missouri class members, and because that issue is at the core of the case, the court did not abuse its discretion in finding the predominance requirement satisfied.
Further, in its attempt to show that common issues do not predominate in the class, Merck mischaracterizes the showing required under the MMPA. It claims that Plaintiffs must show deception, ascertainable loss, and causation, and that individual issues on these elements overwhelm common ones. It argues Plaintiffs will have to prove Merck‘s knowledge of Vioxx‘s risks and its representations about Vioxx at the time of each class member‘s purchase, each prescribing physician‘s knowledge of the risks, whether a different representation would have affected the class member‘s taking of Vioxx, and the cost of a substitute for Vioxx.
First, Plaintiffs’ MMPA claim does not require proof of Merck‘s knowledge. The MMPA “supplements the definition of common law fraud, eliminating the need to prove an intent to defraud or reliance.” Schuchmann, 199 S.W.3d at 233. The statute does not put forth a scienter requirement for civil liability: “It is the defendant‘s conduct, not his intent, which determines whether a violation has occurred.” State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App. E.D. 1988).4 Because an unlawful practice
Second, the predominance inquiry looks to the evidence required for the allegations in the petition. Craft, 190 S.W.3d at 382. As the trial court noted, plaintiffs alleged “a consistent pattern of deception . . . from the time the drug came onto the market until the time it was withdrawn . . . that Merck was violating the [MMPA] at any point and at all points during the class period.” (emphasis added.) Because Plaintiffs alleged Merck misrepresented Vioxx throughout the entire class period, individualized evidence as to the company‘s representation at the time of each class member‘s purchase will not be required. Additionally, an MMPA violation occurs regardless of whether the unlawful practice is committed “before, during or after the sale.”
Third, individualized evidence of each physician‘s and consumer‘s reliance on the misrepresentation is not required. Both our case law and the governing regulations make clear that the consumer‘s reliance on an unlawful practice is not required under the MMPA. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. banc 2007); Schuchmann, 199 S.W.3d at 232; State ex rel. Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 837 (Mo. App. E.D. 2000). The regulations specifically provide that reliance is not an element of deception or misrepresentation.
Plaintiffs are thus not required to prove they or their physicians relied on Merck‘s alleged misrepresentations about Vioxx, and consequently, they are not required to offer individualized proof that the misrepresentation colored the decision to take Vioxx.
Finally, a civil action under the MMPA requires that the litigant “suffers an ascertainable loss of money or property, real or personal, as a result of [an unlawful practice].”
The MMPA does not require that an unlawful practice cause a “purchase.” A civil suit may be brought by “[a]ny person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of [an unlawful practice].”
Nor does the MMPA require each Plaintiff to prove “loss” by individually
Consequently, Merck has not shown that individualized issues predominate over common ones. Because “there is at least one significant fact question or issue, dispositive or not,” that is common to the class, the trial court did not abuse its discretion in finding
Typicality and Adequacy
In its second point, Merck argues that Ms. Plubell and Mr. Ivey are not typical or adequate as class representatives because the facts underlying each plaintiff‘s claim fails to meet the elements required by the MMPA. It asserts that Ms. Plubell cannot “possibly demonstrate” ascertainable loss because her insurance provider paid for her Vioxx prescription, and Mr. Ivey cannot “prove that Merck‘s statements or omissions caused him to purchase Vioxx in the first place.”
A class representative‘s claims must be typical of the claims of the class.
Here, both Ms. Plubell and Mr. Ivey‘s claims arise from Merck‘s sale of Vioxx in Missouri and its alleged misrepresentations as to the drug‘s risks, giving rise to
Merck‘s contentions that Ms. Plubell did not “purchase” Vioxx, and the legal effect thereof, are, first, defenses that go to the merits of the case and are not properly considered in class certification. Second, Merck fails to explain how these issues make Ms. Plubell‘s claims atypical of the class; common logic would indicate that many of the class members’ insurers paid for their Vioxx prescriptions. Consequently, Merck has not shown that the trial court abused its discretion in finding Ms. Plubell met the requirement of typicality.
Merck‘s argument that Mr. Ivey is an improper class representative is similarly flawed. It contends Mr. Ivey‘s claim fails because he cannot prove ascertainable loss because he cannot show that he would not have purchased Vioxx had he been informed of the risks. Otherwise stated, Merck again injects reliance into the MMPA to argue Mr. Ivey‘s claims are atypical. First, this is a defense going to the merits of the case and is not a proper consideration for class certification. Second, even if it were properly considered, the defense relies on the same misconception of causation and reliance under the MMPA as in Merck‘s predominance argument previously rejected. Third, Merck‘s defense on this issue cannot be presumed to be individual to Mr. Ivey and thus “atypical.” Consequently, Merck also failed to show the trial court abused its discretion in finding Mr. Ivey‘s class representation met the typicality requirement.
Merck‘s final contention that Plaintiffs are inadequate class representatives is also without merit. To determine if the adequacy prerequisite of
Here, the trial court found the class representatives adequate; they “have no interests adverse to those of the proposed class and . . . they have vigorously prosecuted this action.” Other than arguments as to the merits of Plaintiffs’ cases, Merck has pointed to no conflicts of interest between Ms. Plubell, Mr. Ivey, and the defined class. Consequently, the trial court did not abuse its discretion in finding Plaintiffs satisfied the adequacy requirement. Merck‘s second point is therefore denied.
Conclusion
For the foregoing reasons, the trial court‘s order granting class certification is affirmed.
Thomas H. Newton, Chief Judge
Welsh, P.J. and Turnage, Sr. J. concur.