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"                      <p class=\"imgtitle\">Calwell</p>            CHARLESTON &ndash; Justices of the Supreme Court of Appeals must decide whether class action consumer fraud claims require proof of deception.<br /><br /> On June 1, they will hear a case that Putnam Circuit Judge O.C. \"Hobby\" Spaulding sent to them after he ruled that consumer fraud plaintiffs don't have to prove deception.<br /><br /> Three plaintiffs in the case allege they suffered ascertainable economic losses from purchasing hormone replacements Premarin, Premphase and Prempro.<br /><br /> They seek damages from drug maker Wyeth and its advertising agency, Ketchum Inc.<br /><br /> None of them alleges that Wyeth or Ketchum deceived them.<br /><br /> Stuart Calwell of Charleston sued Wyeth and Ketchum in 2004, on behalf of Shirley White, Cathy Dennison and Jenny Tyler.<br /><br /> They sought to represent all women in West Virginia who bought the drugs, in claims under the West Virginia Consumer Credit and Protection Act.<br /><br /> The act authorizes a civil action for any person who purchases goods and suffers ascertainable loss as a result of another person's use of a prohibited practice.<br /><br /> The act provides recovery of the actual loss or a minimum of $200.<br /> Wyeth and Ketchum moved to dismiss, claiming the women lacked standing because they couldn't connect their purchases to Wyeth's marketing.<br /><br /> Spaulding denied the motion and certified a question of deception to the Justices.<br /><br /> For Wyeth, Pamela Tarr of Charleston wrote that the Legislature empowered the attorney general to bring suit at the first sign of deceptive or unfair conduct.<br /><br /> \"Had the Legislature intended individual consumers to enjoy the same rights, the Legislature could have done so,\" she wrote.<br /><br /> She wrote that legislators expected the attorney general to exercise that power in the public interest.<br /><br /> \"By contrast, private plaintiffs operate under no duty to serve the public interest and owe no accountability to the public at large,\" she wrote.<br /><br /> \"Some future plaintiffs, who saw or heard some of the deceptive acts, or whose doctor prescribed a drug in reliance on, or having been influenced by, a deceptive practice, might well have standing to bring a claim under the act,\" she wrote.<br /><br /> \"But these plaintiffs, who can point to nothing, do not,\" she wrote.<br /><br /> Thomas Rodd of the Calwell Practice answered that the dangers of the drugs the plaintiffs received had not been properly investigated.<br /><br /> He wrote that Wyeth deliberately ignored and misrepresented evidence of risks with intent to deceive consumers, doctors and the general public.<br /><br /> He wrote that plaintiffs \"received drugs that were substantially and materially different from and inferior to what these women were entitled to receive in the transaction.\"<br /><br /> He wrote, \"The difference and inferiority in what these women received constituted an ascertainable loss under West Virginia Code.\"<br /><br /> He urged the Justices to rule that the women are not required to prove that they or their doctors relied on specific misrepresentations Wyeth made.<br /><br /> Attorney General Darrell McGraw, as friend of the court, sided with Rodd.<br /><br /> McGraw Deputy AG Jill Miles wrote that scare resources limit the ability of his consumer protection division to stamp out illegal conduct.<br /><br /> She wrote, \"Had the Legislature intended to require consumers to prove they had relied upon a misrepresentation and suffered a loss as a result of their reliance thereon, it would have said so.\"<br /><br /> She wrote that \"consumer protection statutes were enacted to outlaw unfair and deceptive conduct, even if the consumer was not actually deceived.\"<br /><br /> Another friend of the court, the West Virginia Association for Justice, argued that for ten years the Supreme Court has rejected a requirement for proof of reliance.<br /><br /> Anthony Majestro of Charleston wrote that the group is unaware of any legislative attempt to overturn these precedents.<br /><br /> \"Indeed, it seems that only the pharmaceutical manufacturers and others who commit consumer fraud are interested in imposing the reliance requirement,\" he wrote.<br /><br /> Another friend of the court, the Product Liability Advisory Council, took Wyeth's side on behalf of 101 members.<br /><br /> Henry Jernigan of Charleston warned that if Spaulding's decision stands, lawyers will recast product liability claims as consumer class actions.<br /><br /> Chief Justice Robin Davis and Justice Margaret Workman disqualified themselves from the case. Circuit judges Fred Fox and Omar Aboulhosn replaced them."^^<http://www.w3.org/2001/XMLSchema#string>
<http://wvrecord.com/stories/510598482-justices-to-hear-case-regarding-consumer-proof-of-deception>