Submitted: February 26, 2003
Filed: July 3, 2003
Marvin W. Masters, Esq. Michael J. Farrell, Esq.
Richard A. Monohan, Esq. Tamela J. White, Esq.
Masters & Taylor, L.C. Farrell, Farrell & Farrell, L.C.
Charleston, West Virginia Huntington, West Virginia
Scott S. Segal, Esq. Charles P. Goodell, Jr., Esq.
Deborah L. McHenry, Esq. Richard M. Barnes, Esq.
The Segal Law Firm Goodell, DeVries, Leech & Dann, L.L.P.
Charleston, West Virginia Baltimore, Maryland
Carl N. Frankovitch, Esq. David Klingsberg, Esq.
Frankovitch, Anetakis, Colantonio & Simon Maris Veidemanis, Esq.
Weirton, West Virginia Robert Grass, Esq.
James C. Peterson, Esq. Kaye Scholer, L.L.P.
Hill, Peterson, Carper, Bee & Deitzler New York, New York
Charleston, West Virginia Attorneys for Warner-Lambert Company
H. Blair Hahn, Esq. and Parke-Davis, Defendants below
Richardson, Patrick & Brickman
Charleston, West Virginia Jeffrey M. Wakefield, Esq.
Guy R. Bucci, Esq. Michelle M. Marinacci, Esq.
Bucci, Bailey & Javins Flaherty, Sensabaugh & Bonasso
Charleston, West Virginia Charleston, West Virginia
J. C. Powell, Esq. Attorneys for Joe A. Shy, D.O., et al.,
Powell & Majestro Defendants below
Charleston, West Virginia
Thomas W. Pettit, Esq. Holly S. Bayhan, Esq.
Pettit & Damron Jennifer B. Hagedorn, Esq.
Barboursville, West Virginia Morton, Herndon & Yeager
Attorneys for Sandra McCaffery, et al., Wheeling, West Virginia
Plaintiffs below Attorneys for Michael Renforth, M.D.,
Karen Kahle, Esq.
Heidi Kossuth, Esq.
Steptoe & Johnson
Wheeling, West Virginia
Attorneys for West Virginia University,
et al., Defendants below
Mark W. Browning, Esq.
Shuman, Annand, McCuskey & Slicer
Charleston, West Virginia
Attorney for Louis Ortenzio, M.D.,
et al., Defendants below
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of this case.
2. An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review. Syllabus Point 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).
3. A federal case interpreting a federal counterpart to a West Virginia rule
of procedure may be persuasive, but it is not binding or controlling. Syllabus Point 3,
Brooks v. Isinghood, ___ W.Va. ___, ___ S.E.2d ___ (No. 30695, June 27, 2003).
4. The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied. Syllabus Point 6, Jefferson County Board of Education v. Jefferson County Education Association, 183 W.Va. 15, 393 S.E.2d 653 (1990).
5. Whether the requisites for a class action exist rests within the sound discretion of the trial court. Syllabus Point 5, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d 895 (1981).
6. Nothing in either the language or history of Rule 23 of the West Virginia Rules of Civil Procedure  gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.
7. When a circuit court is evaluating a motion for class certification under
Rule 23 of the West Virginia Rules of Civil Procedure , the dispositive question is not
whether the plaintiff has stated a cause of action or will prevail on the merits, but rather
whether the requirements of Rule 23 have been met.
8. Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure , a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a) _ numerosity, commonality, typicality, and adequacy of representation _ and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party.
9. The numerosity provision of Rule 23(a)(1) of the West Virginia Rules of Civil Procedure  requires that a class be so numerous that joinder of all of its members is impracticable. It is not necessary to establish that joinder is impossible; rather, the test is impracticability. The test for impracticability of joining all members does not mean impossibility but only difficulty or inconvenience of joining all members.
10. To demonstrate the existence of a class pursuant to Rule 23 of the West Virginia Rules of Civil Procedure, it is not required that each class member be identified, but only that the class can be objectively defined. It is not a proper objection to certification that the class as defined may include some members who do not have claims because certification is conditional and may be altered, expanded, subdivided, or vacated as the case progresses toward resolution on the merits. Syllabus Point 2, State ex rel. Metropolitan Life Ins. Co. v. Starcher, 196 W.Va. 519, 474 S.E.2d 186 (1996).
11. The commonality requirement of Rule 23(a)(2) of the West Virginia Rules of Civil Procedure  requires that the party seeking class certification show that there are questions of law or fact common to the class. A common nucleus of operative fact or law is usually enough to satisfy the commonality requirement. The threshold of commonality is not high, and requires only that the resolution of common questions affect all or a substantial number of the class members.
12. The typicality requirement of Rule 23(a)(3) of the West Virginia Rules of Civil Procedure  requires that the claims or defenses of the representative parties [be] typical of the claims or defenses of the class. A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment.
13. The adequacy of representation requirement of Rule 23(a)(4) of the West Virginia Rules of Civil Procedure  requires that the party seeking class action status show that the representative parties will fairly and adequately represent the interests of the class. First, the adequacy of representation inquiry tests the qualifications of the attorneys to represent the class. Second, it serves to uncover conflicts of interest between the named parties and the class they seek to represent.
14. Under Rule 23(b)(2) of the West Virginia Rules of Civil Procedure , after liability has been established, a court may exercise its equitable powers to establish and administer a court-supervised medical monitoring program to oversee and direct medical surveillance, and provide for medical examinations and testing of members of a class.
15. Rule 23(b)(2) of the West Virginia Rules of Civil Procedure  allows a court to exercise its equitable powers to award equitable relief under W.Va. Code, 46-6-106  of the West Virginia Consumer Credit and Protection Act.
16. For a consumer to make out a prima facie case to recover damages for any ascertainable loss under W.Va. Code, 46A-6-106 , the consumer is not required to allege a specific amount of actual damages. If the consumer proves that he or she has purchased an item that is different from or inferior to that for which he bargained, the ascertainable loss requirement is satisfied.
Starcher, Chief Justice:
In this appeal from the Circuit Court of Raleigh County, we are asked to
examine a circuit court order denying a motion to certify a class action for users of an
allegedly defective prescription drug. After consideration of the briefs, the arguments of the
parties, and all other matters of record, we conclude that the circuit court erred, and reverse
and remand the case for proceedings as a class action.
The plaintiffs' actions against the defendants sought, inter alia, to recover the
costs of medical monitoring necessary to determine whether the plaintiffs have sustained, or
will develop in the future, any injuries from using Rezulin. West Virginia law allows a cause
of action for the recovery of medical monitoring costs, where it can be proven that such
expenses are necessary and reasonably certain to be incurred as a proximate result of a
defendant's tortious conduct. Syllabus Point 2, Bower v. Westinghouse Electric Corp., 206
W.Va. 133, 522 S.E.2d 424 (1999).
The tortious conduct alleged by the plaintiffs included, inter alia, that the defendants sold a product that was defective because it was unreasonably dangerous for its intended use. The plaintiffs assert that Rezulin was defective in both its design and manufacture, and defective because of insufficient labels and warnings. We set forth the standard for a defective product in Syllabus Point 4 of Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979), where we stated:
In this jurisdiction the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer's standards should have been at the time the product was made.
Another tort alleged by the plaintiffs is that the defendants, in their advertising and marketing of Rezulin, withheld material facts from patients and the public about problems with Rezulin, and thereby engaged in deceptive practices in violation of the West Virginia Consumer Credit and Protection Act, W.Va. Code, 46-6-101, et seq. (Consumer Protection Act). In addition to medical monitoring costs, the plaintiffs sought damages under the Consumer Protection Act and sought punitive damages.
The plaintiffs subsequently filed a motion seeking class certification under Rule 23 of the West Virginia Rules of Civil Procedure . The plaintiffs' definition of the proposed class was: All persons who either consumed the drug Rezulin in West Virginia or consumed the drug Rezulin after having had the drugs prescribed or sold to them in West Virginia. The plaintiffs estimate that there are approximately 5,000 people who meet this class definition.
The circuit court held a two-day hearing on the plaintiffs' class certification motion, and on December 12, 2001, issued an order denying the motion. (See footnote 5) In reaching this conclusion, the circuit court made legal findings that, in effect, found that the plaintiffs could not prevail on the merits of their case. (See footnote 6) The circuit court even went so far as to conclude that the evidence shows that Rezulin was not a defective product for the plaintiffs. Finally, the circuit court found that the plaintiffs failed to meet any of the requirements for the formation of a class action, as required by Rule 23 of the Rules of Civil Procedure. The plaintiffs subsequently filed a petition with this Court to appeal the circuit court's ruling denying certification.
After the circuit court denied their motion for class certification, the plaintiffs filed a motion asking the circuit court to remand their individual cases back to the original circuit courts from whence they were transferred, arguing that the circuit court's findings established that the plaintiffs' claims did not contain common questions of law or fact and were not properly consolidated before the circuit court under the terms of Rule 26.01 of the Trial Court Rules . Rule 26.01(c)(b) allows for cases to be consolidated in one circuit court if there are two (2) or more civil actions pending in one or more circuit courts . . . involving common questions of law or fact in 'personal injury mass torts' allegedly incurred upon numerous claimants in connection with widely available or mass marketed products[.]
Because the circuit court found that the questions of law and fact presented by each
plaintiff's case were unique, and that the cases were better resolved on an individual basis,
the plaintiffs argued that the circuit court was required to transfer their cases back to their
The circuit court refused to transfer the plaintiffs' cases. The plaintiffs then filed a petition for a writ of prohibition with this Court, seeking a writ to compel the circuit court to return their individual cases back to the counties where their complaints were originally filed.
We granted the plaintiffs' petition for appeal, and issued a rule to show cause why the plaintiffs' petition for a writ of prohibition should not be granted. Both issues were consolidated for consideration by the Court.
In the instant case, the circuit court was called upon to apply and interpret Rule
23 of the West Virginia Rules of Civil Procedure. As we stated in Syllabus Point 4 of
Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997), An interpretation of the West
Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.
All of the parties in the instant case cite to numerous federal cases, in support of their various arguments. The circuit court, in its order denying class certification, appears to have relied almost exclusively on federal cases interpreting Rule 23 of the Federal Rules of Civil Procedure _ and denying class certification _ in drug or medical device actions. As we made clear in Syllabus Point 3 of Brooks v. Isinghood, ___ W.Va. ___, ___ S.E.2d ___ (No. 30695, June 27, 2003), [a] federal case interpreting a federal counterpart to a West Virginia rule of procedure may be persuasive, but it is not binding or controlling. Our reasoning for this rule is to avoid having our legal analysis of our Rules amount to nothing more than Pavlovian responses to federal decisional law. ___ W.Va. at ___, ___ S.E.2d at ___ (Slip Op. at 8), (quoting Stone v. St. Joseph's Hosp. of Parkersburg, 208 W.Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part) (holding that West Virginia disability discrimination law is not mechanically tied to federal disability discrimination jurisprudence.)).
The plaintiffs are also seeking a writ of prohibition. A writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers. W. Va. Code, 53-1-1 . The law governing prohibition in this instance is set forth in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but
only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an often repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
With these standards in mind, we consider the parties' arguments.
Accordingly, when a circuit court is evaluating a motion for class certification
under Rule 23, the dispositive question is not whether the plaintiff or plaintiffs have stated
a cause of action or will prevail on the merits, but rather whether the requirements of Rule
23 are met. Miller v. Mackey Intern., Inc., 452 F.2d 424, 427 (5th Cir. 1971).
The circuit court's order in the instant case indicates that the circuit judge did both consider and make determinations regarding the merits of the parties' claims and defenses while considering the motion for class certification. For example, the circuit court concluded that class-wide relief was not possible because at least 95% of the people who took Rezulin 'tolerated the drug well without developing any form of liver reaction[.]' The circuit court concluded that the representative plaintiffs were not typical of class members because they appeared to have adverse liver problems _ but then also concluded that the evidence shows that Rezulin was not a defective product for [the plaintiffs]. These factual conclusions were not relevant to the circuit court's consideration of whether the requirements of Rule 23 were met, and as it appears the circuit court substantially turned its decision to deny the plaintiffs' class certification motion on the merits of the plaintiffs' and defendants' evidence, the circuit court thereby abused its discretion.
The four prerequisites that a party must meet under Rule 23(a) before a case may be certified
as a class action are: (1) that the class is so numerous that joinder of all members is
impractical (the numerosity requirement); (2) that there are questions of law or fact
common to the class (the commonality requirement); (3) that the claims or defenses of the
representative parties are typical of those of the class (the typicality requirement); and (4)
that the representative parties will adequately protect the interests of the class (the adequacy
of representation requirement).
Rule 23(b) sets forth the following types of class actions that are maintainable and their requirements, of which the moving party must qualify under only one:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of
(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
In sum, before certifying a class, a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a) _ numerosity, commonality, typicality, and adequacy of representation _ and has satisfied one of the three subdivisions of Rule 23(b). (See footnote 9) See Lukenas v. Bryce's Mountain Resort, Inc., 538 F.2d 594, 595 n.2 (4th Cir. 1976) (To maintain a class action, one must satisfy all four of the provisions of [Rule 23] section (a) and one of the subdivisions of section (b).) As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party. Mitchem v. Melton, 167 W.Va. 21, 28, 277 S.E.2d 895, 899 (1981) (If the requirements of Rule 23 are met, then the class should be allowed.). Any question as to whether a case should proceed as a class in a doubtful case should be resolved in favor of allowing class certification. Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968), cert denied, 394 U.S. 928 (1969) ([T]he interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing the class action.).
As we set forth below in further detail, the circuit court concluded that the plaintiffs in the instant case failed to meet any of the requirements under either Rule 23(a) or (b).
A party seeking class certification is not required to prove the identity of each
class member or the specific number of members. Stambaugh v. Kansas Dept. of
Corrections, 151 F.R.D. 664, 673 (D.Kan. 1993). A court may properly rely on reasonable
estimates of the number of members in the proposed class. Rex v. Owens ex rel. Oklahoma,
585 F.2d 432, 436 (10th Cir. 1978).
Furthermore, a circuit court may not deny a class certification motion merely because some members of the class have not suffered an injury or loss, or because there are members who may not want to participate in the class action. As we stated in Syllabus Point 2 of State ex rel. Metropolitan Life Ins. Co. v. Starcher, 196 W.Va. 519, 474 S.E.2d 186 (1996):
To demonstrate the existence of a class pursuant to Rule 23 of the West Virginia Rules of Civil Procedure, it is not required that each class member be identified, but only that the class can be objectively defined. It is not a proper objection to certification that the class as defined may include some members who do not have claims because certification is conditional and may be altered, expanded, subdivided, or vacated as the case progresses toward resolution on the merits.
In support of our holding in the Metropolitan Life case, we relied upon Joseph v. General Motors Corp., 109 F.R.D. 635, 639 (D.Colo. 1986), where the district court concluded that the fact that the class may initially include persons who have not had difficulties with their V8-6-4 engines or who do not wish to have these purported problems remedied is not important at this stage of the litigation.
In the instant case, the plaintiffs allege that there are approximately 5,000
individuals who meet their proposed class definition, of which only about 2,000 are
represented by plaintiffs' counsel.
(See footnote 10)
The circuit court, however, concluded that the plaintiffs
have not shown that West Virginians who sustained an injury from Rezulin use are 'so
numerous that joinder of all members is impracticable,' as required by Rule 23(a)(1). We
find that it would be highly impractical for plaintiffs' counsel to find, let alone join in the
instant action, all persons who either consumed the drug Rezulin in West Virginia or
consumed the drug Rezulin after having had the drugs prescribed or sold to them in West
Virginia. We therefore find that the circuit court erred in concluding that the plaintiffs failed
to meet the numerosity requirement of Rule 23(a).
We also note that the circuit court's ruling regarding numerosity hinged on consideration of the merits of the parties' claims and defenses. The circuit court held that the numerosity requirement was not met because the plaintiffs failed to identif[y] anyone else in the State who allegedly has a Rezulin-related injury. We reiterate that the plaintiffs were not required to show, at the class certification stage, that any person who has a claim also currently has a Rezulin-related physical injury. The plaintiffs are primarily seeking relief relating to medical monitoring. The plaintiffs are not required, at the class certification stage, to identify the specific injuries of each class member, and it was error for the circuit court to so hold.
Commonality requires that class members share a single common issue. Baby
Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). However, not every issue
in the case must be common to all class members. O'Connor v. Boeing North American,
Inc., 184 F.R.D. 311, 330 (C.D.Cal. 1998). The common questions need be neither important
nor controlling, and one significant common question of law or fact will satisfy this
requirement. Georgia State Conference of Branches of NAACP v. Georgia, 99 F.R.D. 16,
25 (S.D.Ga. 1983). In other words, [t]he class 'as a whole' must raise at least one common
question of law or fact to make adjudication of the issues as a class action appropriate to
conserve judicial and private resources. Philip Stephen Fuoco and Robert F. Williams,
Class Actions in New Jersey State Courts, 24 Rutgers L.J. 737, 752 (1993).
The leading commentator on class action law summarizes the rule in this way:
The Rule 23(a)(2) prerequisite requires only a single issue common to the class. Individual issues will often be present in a class action, especially in connection with individual defenses against class plaintiffs, rights of individual class members to recover in the event a violation is established, and the type or amount of relief individual class members may be entitled to receive. Nevertheless, it is settled that the common issues need not be dispositive of the litigation. The fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a class action; nor is a class action precluded by the presence of individual defenses against class plaintiffs.
A. Conte and H. Newberg, 1 Newberg on Class Actions, 4th Ed., § 3:12 at 314-315 (2002).
In the instant case, the circuit court denied class certification under Rule 23(a)(2) because the evidence shows that Rezulin was not a defective product for the plaintiffs, and that therefore the defendants have shown that the common issues identified by the plaintiffs are not in fact common.
The plaintiffs, however, have identified numerous issues which they contend are common to all potential class members, including whether the drug was not reasonably safe for its intended use by the public as a whole; whether the drug was defective because its instructions and warnings were not adequate for the reasonable, prudent consumer; whether the defendants acted with each other and third parties to mislead physicians and the public about the efficacy and safety of the drug; and whether the defendants violated the Consumer Protection Act in its actions toward West Virginia consumers. We find that issues such as these are common to all or a substantial number of potential class members, and therefore conclude that the circuit court erred in finding otherwise.
In its order denying class certification, the circuit court concluded that the
plaintiffs had failed to meet any of the three requirements under Rule 23(b). On appeal, the
plaintiffs assert that class certification is appropriate under Rules 23(b)(2) and (3); the
plaintiffs do not assert a position as to whether they meet the qualifications of Rule 23(b)(1),
and we therefore do not discuss this part of the rule.
A conclusion on the issue of predominance requires an evaluation of the legal
issues and the proof needed to establish them. As a matter of efficient judicial
administration, the goal is to save time and money for the parties and the public and to
promote consistent decisions for people with similar claims. In the Matter of Cadillac V8-6-
4 Class Action, 93 N.J. 412, 430, 461 A.2d 736, 745 (1983). The predominance requirement
is not a rigid test, but rather contemplates a review of many factors, the central question
being whether adjudication of the common issues in the particular suit has important and
desirable advantages of judicial economy compared to all other issues, or when viewed by
themselves. 2 Newberg on Class Actions, 4th Ed., § 4:25 at 174.
In discussing which test courts should use to determine whether common questions predominate, one court observed:
The requirement that common questions of law and fact predominate over individual issues is the greatest barrier to (b)(3) certification. In determining the existence of predomination, courts have applied various standards. Some mechanically weigh the substantive issues requiring individual proof against issues that can be resolved entirely on a class basis. Others mechanically balance the estimated time necessary to litigate common issues against the time predicted for individual issues, in order to determine predomination. The Federal Rules Advisory Committee and those courts sympathetic to class actions have adopted still another approach. The Advisory Committee suggests that the goal of predominance is to determine whether judicial economies can be fairly achieved after examining all the circumstances of the case.
Black v. Rhone-Poulenc, Inc., 173 F.R.D. at 163-164 (quoting James W. Elrod, Comment,
The Use of Federal Class Actions in Mass Toxic Pollution Torts, 56 Tenn.L.Rev. 243, 267-
The predominance requirement does not demand that common issues be dispositive, or even determinative; it is not a comparison of the amount of court time needed to adjudicate common issues versus individual issues; nor is it a scale-balancing test of the number of issues suitable for either common or individual treatment. 2 Newberg on Class Actions, 4th Ed., § 4:25 at 169-173. Rather, [a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions. Id. at 172. The presence of individual issues may pose management problems for the circuit court, but courts have a variety of procedural options under Rule 23(c) and (d) to reduce the burden of resolving individual damage issues, including bifurcated trials, use of subclasses or masters, pilot or test cases with selected class members, or even class decertification after liability is determined. As the leading treatise in this area states, [c]hallenges based on . . . causation, or reliance have usually been rejected and will not bar predominance satisfaction because those issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant's liability. 2 Newberg on Class Actions, 4th Ed., § 4.26 at 241. That class members may eventually have to make an individual showing of damages does not preclude class certification. Smith v. Behr Process Corp., 113 Wash.App. 306, 323, 54 P.3d 665, 675 (2002) (citations omitted).
The defendants assert that the plaintiffs will be required at trial to show
individual causation and injury caused by some product defect, before being eligible for
medical monitoring relief. Furthermore, the defendants contend that each individual plaintiff
will be required to show, under the Consumer Protection Act, that the defendants committed
an unfair trade practice or other violation of the Act that caused the plaintiff to buy Rezulin.
The defendants therefore argue that, because there are substantial individual issues inherent
in the plaintiffs' claims, these individual issues predominate over issues common to the class.
The plaintiffs, however, take the position that there are no essentially individual issues in their class-related claims. They therefore take the position that their claims, for medical monitoring under Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999) and for damages under the Consumer Protection Act, contain exclusively class- wide issues that predominate under Rule 23(b)(3).
To begin, as we stated in Syllabus Point 2 of Bower, [a] cause of action exists under West Virginia law for the recovery of medical monitoring costs, where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant's tortious conduct. In Bower, we rejected the contention that a claim for medical monitoring costs must rest upon the existence of present and proven physical harm. To the contrary, [t]he 'injury' that underlies a claim for medical monitoring _ just as with any other cause of action sounding in tort _ is 'the invasion of any legally protected interest.' 206 W.Va. at 139, 522 S.E.2d at 430.
For a plaintiff to obtain relief under Bower, the plaintiff must only show that
the plaintiff has a significantly increased risk of contracting a particular disease relative to
what would be the case in the absence of exposure. 206 W.Va. at 142, 522 S.E.2d at 433.
Once that has been proven, the plaintiff must then show that medical monitoring is, to a
reasonable degree of medical certainty, necessary in order to diagnose properly the warning
signs of disease . . . even if the disease it is intended to diagnose is not reasonably certain to
occur. 206 W.Va. at 140, 522 S.E.2d at 431 (citations omitted).
We stated a six-part test in Syllabus Point 3 of Bower:
In order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.
The plaintiffs assert that the entire class, as a whole, meets this six-part test. First and second, the plaintiffs contend all Rezulin users were significantly exposed to a hazardous substance relative to the general population. The defendants argue that a drug approved by the FDA can never be a hazardous substance; we reject this argument outright, because a defective drug, particularly one whose FDA approval was allegedly achieved as a result of incomplete, misleading or negligently-conducted research by the
manufacturer, can be a substance that is exceptionally hazardous to the public. We agree
with the plaintiffs that both of these factors are common to the entire class.
Third, the exposure must be the result of tortious misconduct of the defendants. We perceive from the record that much of the evidence in the instant case will be directed toward showing that the defendants' previously discussed tortious conduct was directed toward the public as a whole, and not toward any individual plaintiff.
The final three elements of the Bowers criteria are less clear from the record, but it appears that the plaintiffs' evidence will show that they have an increased risk of contracting a serious disease, and that the increased risk makes it reasonably necessary for the plaintiffs to undergo periodic medical examinations using existing monitoring procedures, different from what would have been required of the plaintiffs in the absence of their use of Rezulin. It also appears from the record that the plaintiffs intend to prove these final elements as to all class members, and not on an individualized basis.
The plaintiffs contend that the injuries or diseases that result from the use of Rezulin are not related to the dose taken by each patient. Instead, they contend that taking the drug triggered, in some instances, an idiosyncratic reaction that resulted in known and testable injuries. Accordingly, because all plaintiffs in the proposed class took Rezulin, the plaintiffs assert that all members of the class are at risk for an idiosyncratic reaction and injury. We conclude that the circuit court erred in holding that common issues regarding medical monitoring did not predominate over individual issues.
Protection Act caused him or her to purchase Rezulin, and to prove specific damages
resulting from that purchase.
We have never examined W.Va. Code, 46A-6-106 in detail. In Orlando v. Finance One of W.Va., Inc., 179 W.Va. 447, 369 S.E.2d 882 (1988), we gave the statute a cursory glance in approving a circuit court's dismissal of a consumer's attempt to recover damages from a lender for an unconscionable clause in a loan contract _ even though the lender never tried to enforce the clause. We quoted the text of W.Va. Code, 46A-6-106, and concluded that because the lender made no attempt to enforce Clause # 14, the appellants have suffered no 'ascertainable loss of money or property' as a result of the inclusion of Clause # 14 in the loan contract. . . . Thus, while the inclusion of Clause # 14 was an unfair practice, we find that the appellants are not entitled to recover damages. 179 W.Va. at 453, 369 S.E.2d at 888.
Other jurisdictions interpreting statutes similar to ours have concluded that consumers can meet the ascertainable loss requirement without proving that the consumer suffered a specific monetary loss based upon the unfair or deceptive acts or practices. In the leading case of Hinchliffe v. American Motors Corp., 184 Conn. 607, 440 A.2d 810 (1981), the court interpreted a Connecticut statute that allowed a cause of action by [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . . 184 Conn. at 612, 440 A.2d at 813. The Connecticut court concluded that the words any ascertainable loss do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case. 184 Conn. at 612-613, 440 A.2d 810, 813-814.
Our conclusion finds initial support in the language chosen by the legislature when it framed § 42-110g(a). Where drafters meant actual damages, they employed those exact words. The use of different terms within the same sentence of a statute plainly implies that differing meanings were intended. Moreover, the inclusion of the word ascertainable to modify the word loss indicates that plaintiffs are not required to prove actual damages of a specific dollar amount. Ascertainable means capable of being discovered, observed or established.
Loss has been held synonymous with deprivation, detriment and injury. It is a generic and relative term. Damage, on the other hand, is only a species of loss. The term loss necessarily encompasses a broader meaning than the term damage.
Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known. CUTPA is not designed to afford a remedy for trifles. In one sense the buyer has lost the purchase price of the item because he parted with his money reasonably expecting to receive a particular item or service. When the product fails to measure up, the consumer has been injured; he has suffered a loss. In another sense he has lost the benefits of the product which he was led to believe he had purchased. That the loss does not consist of a diminution in value is immaterial, although obviously such diminution would satisfy the statute.
184 Conn. at 613, 440 A.2d at 814 (citations omitted). See also, Scott v. Western Intern. Surplus Sales, Inc., 267 Or. 512, 515, 517 P.2d 661, 662-63 (1973) (Under the statute there is no need to allege or prove the amount of the 'ascertainable loss'; the plaintiff is only claiming the minimum of $200 which is recoverable if an ascertainable loss of any amount is proved . . . . 'Ascertainable' can reasonably be interpreted to mean, capable of being discovered, observed or established. As we have already stated, the amount of the loss is immaterial if only $200 is sought.); Miller v. American Family Publishers, 284 N.J.Super 67, 87-89, 663 A.2d 643, 655 (1995) (To satisfy the 'ascertainable loss' requirement, a plaintiff need prove only that he has purchased an item partially as a result of an unfair or deceptive practice or act and that the item is different from that for which he bargained.).
We conclude that for a consumer to make out a prima facie case to recover damages for any ascertainable loss under W.Va. Code, 46A-6-106, the consumer is not required to allege a specific amount of actual damages. If the consumer proves that he or she has purchased an item that is different from or inferior to that for which he bargained, the ascertainable loss requirement is satisfied.
The plaintiffs assert that in a class action, a difference in claims over the amount of damages is not sufficient to defeat class certification in an action for a refund. See In re: Auction Houses Antitrust Litig., 193 F.R.D. 162, 167 (S.D.N.Y. 2000) (rejecting defendant's argument that common issues did not predominate because damages could not be calculated using the same method for every member of the class); In re NASDAQ Market- Makers Antitrust Litigation, 169 F.R.D. 493, 523 (S.D.N.Y. 1996) (neither a variety of prices nor negotiated prices is an impediment to class certification); Wolgin v. Magic Marker Corp., 82 F.R.D. 168, 176 (E.D.Pa. 1979) ([T]he 'overwhelming weight of authority' holds that the need for individual damages calculations does not diminish the appropriateness of class action certification where common questions as to liability predominate). Based upon this authority, we conclude that the circuit court erred in holding that the individual damages allegedly suffered by the plaintiffs as a result of the defendants' alleged misconduct predominated over the common questions relating to the defendants conduct.
Rule 23(b)(3) also requires a showing that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. This requirement focuses upon a comparison of available alternatives. The defendants contend in the instant case, that case management problems will render a class adjudication impossible. We disagree. While the management of any complex class action is likely to present a challenge, there is a myriad of management devices available to the circuit court under Rule 23. But forcing numerous plaintiffs to litigate the alleged misconduct of the defendants in hundreds or thousands of repeated individual trials, especially where a plaintiff's individual damages may be relatively small, runs counter to the very purpose of a class action:
It must also be remembered that manageability is only one of the elements that goes into the balance to determine the superiority of a class action in a particular case. Other factors must also be considered, as must the purposes of Rule 23, including: conserving time, effort and expense; providing a forum for small claimants; and deterring illegal activities.
2 Newberg on Class Actions, 4th Ed., § 4.32 at 277-78. As we perceive the existing record, a class action appears to be a superior method to any other method for expeditiously litigating the claims of the parties. The plaintiffs have therefore met the requirements of Rule 23(b)(3), and the circuit court erred in holding otherwise.
Because of our resolution of the class action questions, the plaintiffs' petition
for a writ of prohibition is denied.
Reversed and Remanded; Writ Denied.