CHARLESTON, W.Va. - (Mealey's) The West Virginia Supreme Court of Appeals on Dec. 17 ruled that plaintiffs must show reliance and ascertainable loss in state consumer fraud cases and said the state law does not apply to prescription drugs (Shirley White, et al. v. Wyeth, et al., January 2010 Term, No. 35296, W.Va. Sup. App.).
Shirley White, Cathy Dennison and Jenny Tyler filed a class action against Wyeth and marketing firm Ketchum Inc. in the Putnam County Circuit Court, seeking certification of a class of persons who used hormone replacement drugs made by Wyeth and promoted by Ketchum. They brought their action under the West Virginia Consumer Credit and Protection Act (WVCCPA).
Judge O.S. Spaulding in 2009 denied the defendants' motion for summary judgment but certified to the Supreme Court of Appeals the question of whether the statute's language of "as a result of" requires plaintiffs to prove that they bought a product and relied on an unlawful deceptive act.
Citing case law by it and other courts, the high court said that "a private cause of action under the provisions of West Virginia Code § 46A-6-106(a) 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."
"[W]e are simply not convinced that a causal connection exists within the context of prescription drug purchases. Prescription drugs are not the type of private causes of action contemplated under the terms and purposes of the WVCCPA because the consumer cannot and does not decide what product to purchase," the court said, noting that prescription decisions are made by physicians.
Citing case law and legal commentary, the Supreme Court said, "[W]e find that the private cause of action afforded consumers under West Virginia Code § 46A-6-106(a) does not extend to prescription drug purchases."
The court remanded the case and ordered that it be dismissed.
[Editor's Note: Full coverage will be in the Jan. 6 issue of Mealey's Emerging Drugs & Devices. In the meantime, the opinion is available at http://www.mealeysonline.com/ or by calling the Customer Support Department at 1-800-833-9844. Document #28-110106-010Z. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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