                   REVISED FEBRUARY 22, 2002
            IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                                        _______________

                                          m 01-40122
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       ELIZABETH RIVERA; ARKANSAS CARPENTERS HEALTH AND WELFARE FUND,
                 ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED,


                                                           Plaintiffs-Appellees,

                                            VERSUS

                              WYETH-AYERST LABORATORIES,
                   A DIVISION OF AMERICAN HOME PRODUCTS CORPORATION;


                       AMERICAN HOME PRODUCTS CORPORATION,

                                                           Defendants-Appellants.


                                 _________________________

                          Appeal from the United States District Court
                              for the Southern District of Texas
                               _________________________
                                      February 15, 2002



Before SMITH and EMILIO M. GARZA,                     Pursuant to FED. R. CIV. P. 23(f), defen-
  Circuit Judges, and CUMMINGS,*                   dants Wyeth-Ayerst Laboratories (“Wyeth”)
  District Judge.                                  and American Home Products Corporation ap-
                                                   peal the certification of a nationwide class of
JERRY E. SMITH, Circuit Judge:                     drug purchasers and their insurance compa-
                                                   nies. Because we conclude that this suit does
                                                   not present a justiciable case or controversy
   *
    District Judge of the Northern District of     under Article III of the Constitution, we re-
Texas, sitting by designation.
verse and render a judgment of dismissal.                                        II.
                                                             Elizabeth Rivera and the Arkansas Carpen-
                         I.                              ters Health and Welfare Fund (the “Fund”)
   In July 1997, Wyeth began distributing                filed this nationwide class action suit. Rivera
Duract, a non-steroidal anti-inflammatory drug           seeks to represent all patients who were pre-
(“NSAID”) prescribed for short-term man-                 scribed, had purchased, and had ingested Dur-
agement of acute pain. Although all NSAID’s              act but suffered no physical or emotional1 in-
carry certain risks of liver and gastrointestinal        jury. In fact, the class explicitly excludes any
damage, clinical trials revealed that Duract had         patients who have been injured by Duract.
additional negative effects. Wyeth included a            Nor do plaintiffs claim Duract was ineffective
package insert in each box of Duract detailing           as a pain killer or has any future health conse-
these dangers, reporting the results of the clini-       quences.
cal trials, recommending Duract be used for
only short periods (“generally less than ten                 Although the class includes citizens of all
days”), and warning that Duract may not be               fifty states and the District of Columbia, plain-
appropriate for those with preexisting liver             tiffs state their complaint under Texas law.
conditions. The Food and Drug Administra-                They allege that Wyeth failed to warn of Dur-
tion (“FDA”) approved Duract, its labeling,              act’s dangers and that Duract was defective in
and its package insert.                                  violation of (1) the Texas Deceptive Trade
                                                         Practices Act (“DTPA”), TEX. BUS. & COM.
    In December 1997, Wyeth received three               CODE ANN. §§ 17.50, 17.46 (Vernon Supp.
reports of liver failure by patients who had tak-        1998), (2) the implied warranty of merchant-
en Duract for long-term relief without un-               ability, TEX. BUS. & COM. CODE ANN.
dergoing liver testing. In February 1998, after          § 2.314(a) (Vernon 1994), and (3) common
receiving FDA approval, Wyeth issued a new,              law unjust enrichment, and thus Wyeth owes
revised package insert reporting these cases of          them economic damages. The Fund asserts a
liver failure and reemphasizing that Duract was          derivative claim: It seeks to represent all
intended “only for the short term (10 days or            third-party payers who have reimbursed these
less).” After receiving new reports of liver             patients for Duract.
failure among long term users, Wyeth volun-
tarily withdrew Duract from the market in
June 1998.                                                  1
                                                              The plaintiffs have never allegedSSin their ori-
                                                         ginal complaint, their second amended complaint,
   Wyeth explained that of the twelve patients           or their brief to this courtSSthat they suffered emo-
injured by Duract, eleven had taken the drug             tional distress. Yet, in its November 8 order
for over ten days, and one had preexisting liver         denying Wyeth’s motion to dismiss, the district
                                                         court based its holding on this fact. It concluded
disease. Wyeth stated that because no change
                                                         that “even if the medicine does not cause physical
in Duract’s package insert could guarantee               injury, the user may spend months or years worry-
physicians would stop prescribing the drug for           ing about potential illness caused by the medicine,”
long-term use, it was withdrawing Duract                 and this stated a claim under Texas law. Rivera v.
from the market. Wyeth established a program             Wyeth-Ayerst Labs., 121 F. Supp. 2d 614, 619
to refund Duract users for any unused portion            (S.D. Tex. 2000). To eliminate all confusion, the
of their prescription.                                   plaintiffs repudiated the district court’s claim in
                                                         their brief to this court.

                                                     2
    Wyeth asked the district court to deny the          moved the district court to issue an order “ex-
motion to certify the class on the pleadings or,        pressing the court’s intent to vacate the class
in the alternative, to allow class discovery and        certification order and to reconsider the class
an evidentiary hearing. The plaintiffs agreed           certification issue upon remand.” The plain-
that discovery would be appropriate; accord-            tiffs noted that the district court had erred in
ingly, on November 28, 2000, the parties sub-           failing to conduct a choice-of-law analysis and
mitted a proposed discovery plan to the dis-            failing to demand plaintiffs submit a subclass
trict court. That same day, despite the plain-          plan before certification; plaintiffs requested
tiffs’ concession in favor of discovery, the            the court to assure that it would do so on re-
court denied Wyeth’s request for discovery              mand; nonetheless, the court denied the mo-
and an evidentiary hearing and certified the            tion on the stated ground of lack of jurisdic-
class under FED. R. CIV. P. 23(b).2                     tion.

    Even though FED. R. CIV. P. 26(d) prohibits                                III.
discovery and evidentiary hearings in advance              Rarely on appeal does the appellee concede
of the pretrial conference, and the pretrial con-       that the district court’s order is so fatally
ference had been held only thirteen days ear-           flawed that it cannot stand. Yet, at oral argu-
lier, the district court rebuked Wyeth for not          ment, the attorney for Rivera and the Fund did
having pursued discovery over the past four             just that, admitting that only a “feeling of ob-
months and decided it could certify the class           ligation to support the district court order”
without any discovery. Accordingly, although            moved him to argue when it was “crystal
the record contained no evidence on Rivera’s            clear” we would have to vacate and remand. 3
purchase or use of Duract or on the Fund’s re-          Counsel was only half right, however: Be-
imbursement of Duract patients, the court held          cause this suit does not even present a justicia-
that the claims of Rivera and the Fund “appear          ble case or controversy under Article III, we
to be typical” of the class members.                    vacate and render a judgment of dismissal.

   Similarly, the district court dismissed Wy-                                 IV.
eth’s argument that variations in the fifty                Article III limits the judicial power of the
states’ laws would swamp any common issues.             federal courts to “Cases” and “Controversies”
There was no need to analyze different states’          but does not define those terms. Instead, “the
laws or even to decide which laws applied, the          Constitution’s central mechanism of separation
district court held, because plaintiffs had             of powers depends largely upon common un-
promised eventually to provide a workable               derstanding of what activities are appropriate
subclass plan that would solve any problems.            to legislatures, to executives, and to courts.”
                                                        Lujan v. Defenders of Wildlife, 504 U.S. 555,
   Wyeth timely filed, and this court granted,          559-60 (1992). An “essential and unchanging
an application for interlocutory appeal pursu-
ant to rule 23(f). Apparently estimating that
their odds on appeal were bleak, plaintiffs                3
                                                             We are sympathetic to counsel’s plight on
                                                        appeal, and we appreciate his candor, in his role as
                                                        an officer of the court, in acknowledging the
   2
     Rivera v. Wyeth-Ayerst Labs., 197 F.R.D.           weakness of the position thrust on him and his
584 (S.D. Tex. 2000).                                   clients by the district court.

                                                    3
part” of this common understanding is the                     Though rule 23(f) allows a party to appeal
doctrine of standing. Id. at 560.                         only the issue of class certification, “[s]tanding
                                                          is an inherent prerequisite to the class cer-
    The “irreducible constitutional minimum of            tification inquiry.” Bertulli v. Indep. Ass’n of
standing contains three elements”: “[T]he                 Cont’l Pilots, 242 F.3d 290, 294 (5th Cir.
plaintiff must have suffered an injury in fact,”          2001). Accordingly, standing maySSindeed
“there must be a causal connection between                mustSSbe addressed even under the limits of a
the injury and the conduct complained of,” and            rule 23(f) appeal. Id.6
“it must be likely . . . that the injury will be
redressed by a favorable decision.” Id. at 560-              Standing is a question of law that we re-
61 (internal quotations omitted).4 The plain-             view de novo. Pederson v. La. State Univ.,
tiffs, as the party invoking federal jurisdiction,        213 F.3d 858, 869 (5th Cir. 2000). We review
bear the burden of establishing these elements.           for clear error all facts expressly or impliedly
Steel Co. v. Citizens for a Better Env’t, 523             found by the district court. Id.
U.S. 83, 103 (1998). Failure to establish any
one deprives the federal courts of jurisdiction                                   B.
to hear the suit. Id.                                        To establish an injury in fact, plaintiffs must
                                                          demonstrate “an invasion of a legally protected
   The district court erred by not demanding              interest which is . . . concrete and particular-
such a showing before it certified the class.5            ized.” Defenders of Wildlife, 504 U.S. at 560.
Had it done so, it would have found that
plaintiffs had demonstrated neither injury nor
causation.                                                   6
                                                                See also Steel Co., 523 U.S. at 94 (“‘On
                                                          every writ of error or appeal, the first and funda-
                       A.                                 mental question is that of jurisdiction’” (quoting
    Even though the certification inquiry is              Great S. Fire Proof Hotel Co. v. Jones, 177 U.S.
more straightforward, we must decide standing             449, 453 (1900))).
first, because it determines the court’s funda-               Although there is a limited exception for suits in
mental power even to hear the suit. Id. at 94.            which the class certification issues are “logically
The procedural posture of this case does not              antecedent to the existence of any Article III is-
alter our conclusion.                                     sues,” Amchem Prods., Inc. v. Windsor, 521 U.S.
                                                          591, 612 (1997); accord Ortiz v. Fibreboard
                                                          Corp., 527 U.S. 815, 831 (1999) (citations omit-
                                                          ted), this exception is not applicable here. In the
   4                                                      instant case, in contrast to Ortiz and Amchem, the
    Accord Pub. Citizen, Inc. v. Bomer, 274 F.3d
212, 217 (5th Cir. 2001).                                 standing question would exist whether Rivera filed
                                                          her claim alone or as part of a class; class certifica-
   5
     Although Wyeth argued that plaintiffs lacked         tion did not create the jurisdictional issue. Nor are
standing, the district court refused to address the       we precluded from addressing standing by the fact
question, insisting it had done so in its November        that the district court did not discuss it. “[B]ecause
8 denial of a motion to dismiss. Rivera v. Wyeth-         ‘standing is a jurisdictional requirement, [it] may
Ayerst Labs., 197 F.R.D. 584, 588 (S.D. Tex.              always be addressed for the first time on appeal.’”
2000). The November 8 order, however, does not            Pub. Citizen, 274 F.3d at 217 (quoting Sierra Club
mention standing. Rivera v. Wyeth-Ayerst Labs.,           v. Cedar Point Oil Co., 73 F.3d 546, 555 n.22 (5th
121 F. Supp. 2d 614 (S.D. Tex. 2000).                     Cir. 1996)).

                                                      4
Rivera’s claim to injury runs something like              F.3d at 295.
this: Wyeth sold Duract; Rivera purchased
and used Duract; Wyeth did not list enough                   The plaintiffs’ most plausible argument for
warnings on Duract, and/or Duract was defec-              finding they have suffered “invasion of a le-
tive; other patients were injured by Duract;              gally protected interest” is their claim they
Rivera would like her money back. The plain-              were denied “the benefit of the bargain” due to
tiffs do not claim Duract caused them physical            them under general, contract law type princi-
or emotional injury, was ineffective as a pain            ples. The plaintiffs do not actually argue
killer, or has any future health consequences to          breach of contractSSlikely a smart decision,
users. Instead, they assert that their loss of            given that there was no contract. Instead, they
cash is an “economic injury.”                             invoke Coghlan v. Wellcraft Marine Corp.,
                                                          240 F.3d 449 (5th Cir. 2001), a bold move
    The plaintiffs never define this “economic            given that Coghlan explicitly distinguishes
injury,” but, instead, spend most of their brief          valid, contract law suits from the “no-injury
listing helpful suggestions on how a court                products liability law suit” plaintiffs bring.
could calculate damages. These arguments are
relevant (if at all) to redressability, not injury.           The Coghlan plaintiffs had contracted to
Merely asking for money does not establish an             buy an all fiberglass boat but instead received
injury in fact.                                           a less valuable, wood-fiberglass hybrid. They
                                                          sued for breach of contract, requesting dam-
    Notably, the wrongs Rivera and the class              ages equal to the difference in value between
allege are those suffered by other, non-class             what they were promised (an all fiberglass
member patients. The plaintiffs claim that Wy-            boat) and what they received (the fiberglass-
eth violated the implied warranty of merchant-            wood hybrid). In holding that the Coghlans
ability by selling a defective drug, but then             had suffered an injury, we explained that
aver that the drug was not defective as to
them. Similarly, the plaintiffs claim Wyeth vi-              [t]he key distinction between [the Cogh-
olated the DTPA by failing to issue warnings                 lans’] case and a “no-injury” products
sufficient to advise injured users, but then con-            liability suit is that the Coghlans’ claims
cede they were not among the injured. Such                   are rooted in basic contract law rather
wrongs cannot constitute an injury in fact.                  than the law of product liability: the
                                                             Coghlans assert they were promised one
    “[T]he ‘injury in fact’ test requires more               thing but were given a different, less
than an injury to a cognizable interest. It re-              valuable thing. The core allegation in a
quires that the party seeking review be himself              no-injury product liability class action is
among the injured.” Sierra Club v. Morton,                   . . . the defendant produced or sold a
405 U.S. 727, 734-35 (1972); accord Defend-                  defective product and/or failed to warn
ers of Wildlife, 504 U.S. at 563. It is not                  of the product’s dangers.
enough that Wyeth may have violated a legal
duty owed to some other patients; the plain-              Id. at 455 n.4.
tiffs must show that Wyeth violated a legal
duty owed to them. “What courts require . . .                Even if we were to ignore the fact that
is that the injury be personal.” Bertulli, 242            plaintiffs have no contract, the general princi-


                                                      5
ples they invoke do not help them. By plain-             Rivera has not even indicated what additional
tiffs’ own admission, Rivera paid for an effec-          warnings Wyeth should have included or
tive pain killer, and she received just thatSSthe        which of Duract’s defects Wyeth should have
benefit of her bargain. “An award of damages             curedSSperhaps because as one not injured by
for breach of contract is supposed to place the          the drugs, she does not know.
injured party as nearly as po ssible in the po-
sition that he would have occupied had the                                      C.
defaulting party performed the contract.” Id.               In addition to their failure to demonstrate
at 453-54. Duract worked. Had Wyeth pro-                 an injury in fact, plaintiffs fail to plead facts
vided additional warnings or made Duract saf-            essential to establish causation. Standing re-
er, the plaintiffs would be in the same position         quires “a causal connection between the injury
they occupy now. Accordingly, they cannot                and the conduct complained ofSSthe injury has
have a legally protected contract interest.              to be fairly traceable to the challenged action
                                                         of the defendant, and not the result of the
    The confusion arises from the plaintiffs’            independent action of some third party not
attempt to recast their product liability claim in       before the court.” Defenders of Wildlife, 504
the language of contract law. The wrongs                 U.S. at 560 (internal quotations and alterations
they allegeSSfailure to warn and sale of a               omitted).
defective productSSare products liability
claims. Id. at 455 n.4. Yet, the damages they                The facts provide plaintiffs an additional
assertSSbenefit of the bargain, out of pocket            hurdle in demonstrating causation. Duract
expendituresSSare contract law damages. The              was a prescription drug; before a patient could
plaintiffs apparently believe that if they keep          take Duract, his physician had to make an in-
oscillating between tort and contract law                dependent medical judgment to prescribe it.7
claims, they can obscure the fact that they have         Where an element of standing “depends on the
asserted no concrete injury. Such artful plead-          unfettered choices made by independent actors
ing, however, is not enough to create an injury          not before t he courts and whose exercise of
in fact.                                                 broad and legitimate discretion the courts
                                                         cannot presume either to control or to predict
   These are not merely pleading exercises;              . . . it becomes the burden of the plaintiff to
Article III’s standing requirements assure that          adduce facts showing that those choices have
“‘the dispute . . . will be presented in an adver-       been or will be made in such a manner as to
sary context and in a form historically viewed           produce causation.” Id. at 562. Thus, to es-
as capable of judicial resolution.’” Sierra              tablish causation, plaintiffs must show that had
Club, 405 U.S. at 732 (quoting Flast v. Co-              Wyeth acted “lawfully” (produced a safer drug
hen, 392 U.S. 83, 101 (1968)). Courts should             or provided more extensive warnings), the
not be deciding legal questions in the abstract,         physicians would not have prescribedSSand
but based on a fully developed factual record.

                                                            7
                                                              See Burton v. Am. Home Prods. (In re Nor-
   By definition, Rivera’s no-injury “damages”           plant Contraceptive Prods. Liab. Litig.), 955 F.
will not vary with Wyeth’s degree of negli-              Supp. 700, 703 (noting the applicability of the
gence or the drug’s propensity for harm.                 “learned intermediary doctrine”), aff’d, 165 F.3d
                                                         374 (5th Cir. 1999).

                                                     6
the plaintiffs would not have purchasedSSDur-
act.

    Rivera and the class do not even assert this
conclusion, much less adduce any facts sup-
porting it. One logically could assume that if
Duract had been safer, physicians would have
been more willing to prescribe it. And even if
Wyeth had issued more warnings (plaintiffs do
not indicate which warnings were missing),
plaintiffs never assert that they were part of a
risk group that should have been warned. To
find causation, we would have to infer the
absurdSSfor example, that an extra warning,
though inapplicable to Rivera, might have
scared her and her doctor from Duract. Such
reasoning is too speculative to establish Article
III standing.8

   Because this suit does not present a justi-
ciable case or controversy under Article III,
we do not reach the class certification question
and intimate no view on its merits. We RE-
VERSE and RENDER a judgment of dis-
missal.




   8
      See Defenders of Wildlife, 504 U.S. at 566
(stating that “[s]tanding is not an ingenious aca-
demic exercise in the conceivable” (internal quo-
tations and citation omitted)).

                                                     7
