We took a look at a case called Birdsong v. Eli Lilly & Co., 2011 WL 1259650 (W.D. Tenn. Mar. 31, 2011), the other day because we were interested in the grounds that the court used to dismiss the by now more-or-less-standard consumer fraud claim that so many plaintiffs indiscriminately throw into their complaints.
Personal injury plaintiffs, at least, shouldn’t.
Plaintiff Birdsong alleged that Eli Lilly’s diabetes fighting drug Byetta….
Wait a minute – diabetes?
Aren’t there a bunch of plaintiffs out there suing Eli Lilly because its anti-schizophrenia drug, Zyprexa supposedly causes diabetes – at least in obese people who would probably contract the disease anyway?
You can cut the irony with a knife. First Lilly gets sued for supposedly causing diabetes. Then, when it has a drug that fights diabetes, it gets sued because that drug supposedly causes something else.
Maybe there’s a drug out there that treats pancreatitis (the injury alleged in Birdsong) that some plaintiff can claim causes schizophrenia. Then there’d be a perfect liability circle – well, triangle, anyway.
But we digress.
Anyway, the important point here is that pancreatitis is a form of personal injury, something that anybody who’s ever had pancreatitis can surely attest to.
The problem is that consumer fraud statutes were never intended to apply to personal injury cases. Most of them include remedies, such as double or treble damages and recovery of attorneys’ fees, that are unknown and antithetical to personal injury jurisprudence.
So even assuming – which we emphatically don’t – that consumer fraud claims have any place in any sort of product liability litigation, their assertion by personal injury plaintiffs is simply out of bounds.
And that’s what the court held in Birdsong, squashing the claim like a DDT-laced eggshell.
First the court found that the damages alleged in Birdsong that were unrelated to personal injuries were exactly none – goose egg:
The damages Plaintiffs allegedly sustained flow from the medical complications and personal injuries Mr. Birdsong suffered from taking Byetta. That is, Plaintiffs do not allege “an ascertainable loss of money or property” that exists independently of the personal injuries that Mr. Birdsong suffered.
2011 WL 1259650, at *3.
Thus, Birdsong’s consumer fraud claim went south. Tennessee doesn’t allow personal injury plaintiffs to assert consumer fraud claims. The court’s eagle eyes spied a Tennessee appellate court decision that rejected the argument that a person’s life was a “thing of value” under the Tennessee statute:
[T]he General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.
2011 WL 1259650, at *3 (quoting Kirksey v. Overton Publishing, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990). Birdsong also perched on Tennessee federal decision, Howard v. R.J. Reynolds Tobacco Co., 2005 WL 2088909, at *3 (E.D. Tenn. Aug.25, 2005), stating that a plaintiff “seek[ing] to recover for injuries to his person resulting from [a defendant’s] alleged violation of the TCPA [that’s the Tennessee statute’s abbreviation]” must be dismissed. Thus Birdsong’s consumer protection claim was fit only for vultures. 2011 WL 1259650, at *3 (“Plaintiffs specifically link Mr. Birdsong’s TCPA injuries to his personal injury . . . . Therefore, Plaintiffs’ TCPA claim is dismissed”).
We’d also point out that the court in Roberson v. Medtronic, Inc., 494 F. Supp.2d 864, (W.D. Tenn. 2007), observed that “Plaintiffs have not specified whether their injuries are bodily, psychological, or pecuniary” and allowed only “pecuniary” claims to proceed. Id. at 869.
Anyway, birds of a feather do indeed flock together. Birdsong reiterates what we have always considered the majority rule. So we thought we’d take a look and see how big a flock we could find. Here are the results:
We didn’t find any Alabama law discussing consumer fraud claims in personal injury cases, one way or the other. That might be because to pursue such a claim in Alabama works as a “surrender of all rights and remedies available at common law.” Ala. Code § 8-19-15. A plaintiff would truly be a fool to give up all other claims to pursue this doubtful theory.
Didn’t find a thing in Alaska.
That’s strike three. Nothing here, either.
Size four horse collar so far. Didn’t find anything in Arkansas.
If we didn’t find anything here, we’d probably have given up, but most populous state in the nation came through. California has a number of consumer protection statutes. Its Unfair Competition Law doesn’t allow recovery of any damages. From what we can tell, recovery of personal injury is not allowed. Under the UCL, “[d]amages cannot be recovered, and plaintiffs are generally limited to injunctive relief and restitution.” Buckland v. Threshold Enterprises, Ltd., 66 Cal. Rptr.3d 543, 552 (Cal. App. 2007). In Music Acceptance Corp. v. Lofing, 39 Cal. Rptr.2d 159, 168 n.15 (Cal. App. 1995), and Kwan v. Mercedes-Benz of North America, Inc., 28 Cal. Rptr.2d 371, 370 (Cal. App. 1994), emotional distress was determined unrecoverable under a statute that the Golden Staters call “Song-Beverly”.
The Colorado Supreme Court, while noting that other states bar personal injury claims under consumer protection statutes, has yet to decide the question. Hall v. Walter, 969 P.2d 224, 233 n.8 (Colo. 1998). At least one federal court has found Hall insufficient guidance to support dismissal on this basis. Schmaltz v. Smithkline Beecham Corp., 2009 WL 1456723, at *1-2 (D. Colo. May 21, 2009). We, of course think that’s wrong under Erie – where the default should be, if a form of liability hasn’t been recognized by a state court, then it should be dismissed by a federal court applying that state’s law in a diversity action.
In Gerrity v. R.J. Reynolds Tobacco Co., 818 A.2d 769 (Conn. 2003), the court held that a Connecticut consumer protection claim escaped preclusion under the state’s exclusive product liability statute because the claim “does not seek a remedy for personal injury, death or property damage.” Id. at 775. Therefore, assuming that a consumer protection claim could otherwise be brought for such damages (requiring more research than we care to do), if it involved a product, the claim could not exist because the product liability statute would subsume it.
It doesn’t look like personal injuries are recoverable under the Delaware consumer protection statute, although we’ve only found trial court opinions on point. Ashe v. Blenheim Homes, L.P., 2007 WL 3380121, at *4 (Del. Super. March 12, 2007) (consumer fraud claim does not “involve a tort action for personal injury”); J.E. Rhoads & Sons, Inc. v. Ammeraal, Inc., 1988 WL 116423, at *4 (Del. Super. Oct. 21, 1988) (“the purpose of the Act is to provide for restitution for economic loss”).
District of Columbia
Personal injuries are not mentioned in the list of remedies under the DC act. D.C. Stat. §28-3905(k)(1). After years of hemming and hawing, DC’s highest court in Grayson v. AT & T Corp., ___ A.3d ___, 2011 WL 165843, at *20 (D.C. Jan. 20, 2011), ruled that a personal injury does not provide a plaintiff with standing to bring a consumer protection suit.
No personal injury damages can be recovered under Florida’s statute, as it expressly does not apply to claims or damages for “personal injury or death.” F.S.A. §512.212(3); see also Fields v. Mylan Pharmaceuticals, Inc., 2009 WL 7115134, at *2 (N.D. Fla. Feb. 11, 2009) (applying exception in Florida statute to reject personal injury-based consumer fraud claim); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp.2d 315, 329 (S.D.N.Y. 2006) (same); Petitt v. Celebrity Cruises, Inc., 153 F.Supp.2d 240, 266 (S.D.N.Y. 2001) (same); Barrow v. Bristol-Myers Squibb, 1998 WL 812318, at *46 (M.D. Fla. Oct. 29, 1998) (same), aff’d without op., 190 F.3d 541 (5th Cir. 1999); T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (same).
The Georgia consumer protection provides only for injunctive relief, Ga. Code Ann. §0-1-373(a), so the question doesn’t seem to have arisen.
In Zanakis-Pico v. Cutter Dodge, Inc., 47 P.3d 1222, 1232 (Haw. 2002), the Hawaii Supreme Court stated:
[Plaintiffs] may not recover damages for emotional distress. See Ailetcher v. Beneficial Finance Co., 632 P.2d 1071, 1076 (Haw. App. 1981) (“under [the statute] there is no room for damages for personal injury and hence there can be no recovery . . . for mental pain and suffering”); Beerman v. Toro Manufacturing Corp., 615 P.2d 749, 754 (Haw. App. 1980) (barring recovery of damages for personal injury under HRS chapter 480).
We see nothing.
Only “actual economic damages” may be awarded under the Illinois statute. 815 ILCS §505/10a(a). Purely emotional distress claims have not been allowed. Morris v. Harvey Cycle & Camper, Inc., 911 N.E.2d 1049, 1054 (Ill. App. 2009); Xydakis v. Target, Inc., 333 F. Supp.2d 686, 688 (N.D. Ill. 2004). We didn’t see any case discussing personal injury specifically, so while we think that the emotional distress cases are a fortiori, we can’t say for sure as a legal matter.
We haven’t found any cases specifically allowing, or barring, personal injuries under the Indiana Statute. Emotional distress is not recoverable. McCormick Piano & Organ Co. v. Geiger, 412 N.E.2d 842, 852 (Ind. App. 1980) (“[i]n no way can damages for emotional distress be recovered”).
The Iowa consumer protection statute doesn’t have any private right of action at all – for anything. Thus the question has not arisen.
There’s a weird little express personal injury exception under the Kansas statute, but it covers only physicians. Kan. Stat. Ann. §50-635(b). Does that create a harmful negative implication? The exception was intended to overrule an aberrant decision, Williamson v. Amrani, 152 P.3d 60, 65 (Kan. 2007), which held a physician liable under the statute for personal injury, but the focus of Williamson was application of the act to a learned profession, not the type of damages alleged. So it’s hard to say.
We haven’t found anything specifically about personal injury, but emotional distress damages have been disallowed under the Kentucky statute:
Defendants also assert that Plaintiffs are not entitled to mental suffering or emotional distress damages. Kentucky courts have been clear that these types of damages are not recoverable under a contract-type cause of action. Plaintiffs cite no persuasive authority to the contrary. No Kentucky court has concluded that the [Kentucky statute] entitles plaintiffs to mental suffering or emotional distress damages. This Court declines to do so now.
Peacock v. Damon Corp., 458 F. Supp.2d 411, 420 (W.D. Ky. 2006).
The damages issue is a moot point, because all Louisiana consumer fraud claims involving products have been subsumed by the Louisiana Product Liability Act. Lots of cases so hold. Here are a couple. Bladen v. C.B. Fleet Holding Co., 487 F. Supp.2d 759, 766-71 (W.D. La. 2007) (“[t]he LPLA clearly and explicitly contains a statutory declaration of exclusive liability for manufacturers falling only under the LPLA”); Andry v. Murphy Oil, U.S.A., Inc., 935 So.2d 239, 245 (La. App. 2006) (affirming that consumer fraud claim against product manufacturer is “no cause of action”).
The Maine statute provides only injunctive relief, and thus cannot be used to recover personal injury (or any other) damages. Bartner v. Carter, 405 A.2d 194, 302 (Me. 1979); Doe v. Solvay Pharmaceuticals, Inc., 350 F. Supp.2d 257, 274 n.13 (D. Me. 2004), aff’d, 153 Fed. Appx. 1 (1st Cir. 2005).
Maryland’s one of the oddballs. The state allows personal injury to be recovered under its consumer protection statute, subject to a statutory cap. Green v. N.B.S., Inc., 976 A.2d 279, 285-86 (Md. 2009).
Another oddball, and of long standing. Massachusetts allows recovery of personal injury under its consumer protection statute – because the legislature had amended the statute to eliminate a “loss of money or property” requirement. Hershenow v. Enterprise Rent-A-Car Co., Inc., 840 N.E.2d 526, 533 (Mass. 2006); Maillet v. ATF-Davidson Co., 552 N.E.2d 95, 99 (Mass. 1990); Leardi v. Brown, 474 N.E.2d 1094, 1100-1101 (Mass. 1985).
The absolute defense provided to FDA regulated manufacturers under Michigan law applies to any consumer protection claims asserting personal injuries as damages. Duronio v. Merck & Co., 2006 WL 1628516, at *6 (Mich. Ct. App. June 13, 2006). Otherwise, Michigan courts have allowed recovery of, at least, emotional distress under its consumer protection act. Hauf v. Life Extension Foundation, 547 F. Supp.2d 771, 780-81 (W.D. Mich. 2008) (collecting cases).
Minnesota’s consumer protection statute applies only where enforcement would “benefit the public.” Personal injury claims have been held not to meet this standard. New Hampshire Insurance Co. v. Total Tool Supply, Inc., 621 F. Supp.2d 121, 126 (S.D.N.Y. 2009) (applying Minnesota law); Wehner v. Linvatech Corp., 2008 WL 495525, at *3-4 (D. Minn. Feb. 20, 2008); Berczyk v. Emerson Tool Co., 291 F. Supp.2d 1004, 1020 (D. Minn. 2003); Tuttle v. Lorillard Tobacco Co., 2003 WL 1571584, at *6-7 (D. Minn. 2003).
Didn’t find anything in Mississippi.
Missouri has a really broad consumer protection statute, but not this broad. The act has been held to extend only to “pecuniary loss” and not “damages for humiliation or emotional distress.” Ford v. St. Louis Metropolitan Towing, L.C., 2010 WL 618491, at *15 (E.D. Mo. Feb. 18, 2010).
We haven’t found anything about personal injury, but Montana allows recovery of emotional distress under its consumer protection statute. Lorang v. Fortis Insurance Co., 192 P.3d 186, 223-24 (Mont. 2008).
Didn’t see anything in Nebraska.
Didn’t find anything for Nevada, either.
A relatively old New Hampshire federal district court case allowed a consumer protection claim in what was essentially a product liability case for personal injury damages. McClary v. Erie Engine & Manufacturing. Co., 1994 WL 803088, at *2 (D.N.H. Nov. 23, 1994). We found nothing in state court precedent justifying this conclusion.
In Gennari v. Welchert Co., 691 A.2d 350 (N.J. 1997), court refused to expand the scope of damages under the New Jersey statute to any sort of non-economic damages:
One reading of the Act is that a party who suffers any ascertainable loss has standing to sue and can recover three times “any and all damages sustained.” The alternative, and we believe more appropriate, interpretation is that “damages” are limited to “ascertainable loss.” At common law an injured party could recover only for the injuries sustained. Absent a clear expression of legislative intent changing the common-law rule, we are reluctant to read the Act to encompass non-economic losses.
Id. at 368-69. The court relied in part upon Jones v. Sportelli, 399 A.2d 1047, 1051 (N.J. Super. Law Div. 1979), a trial court decision reaching the same conclusion. Gennari has been applied in Shannon v. Howmedica Osteonics Corp., 2010 WL 421096, at *3 (D.N.J. Feb. 1, 2010), and Rice v. Kawasaki Heavy Industries, Ltd., 2008 WL 4646184, at *6 (E.D.N.Y. Oct. 17, 2008) (applying New Jersey law), both specifically rejecting personal injury damages under the statute.
Another impediment to consumer protection claims in the product liability context is that the New Jersey Product Liability Act subsumes product-related consumer protection allegations. Sinclair v. Merck & Co., 948 A.2d 587, 595-96 (N.J. 2008)
Didn’t find anything for New Mexico.
Frankly, we would have expected there to be more law than there is – it’s New York after all. What we found was helpful. In Goldych v. Eli Lilly & Co., 2006 WL 2038436, at *8 (N.D.N.Y. July 19, 2006), the court refused to predicate a consumer protection claim on the plaintiff’s suicide. In Falco v. Allstate Insurance Co., 894 N.Y.S.2d 643, 643 (N.Y.A.D. 2010), the court determined, in one of those Appellate Division affirmances without much discussion, that a personal injury case did not meet the statute’s public impact requirement.
Oddly for such an otherwise legally conservative state, the law, such as it is, from North Carolina on consumer fraud claims for personal injury isn’t good. See Williams v. HomEq Servicing Corp., 646 S.E.2d 381, 388 (N.C. App. 2007) (allowing recovery of emotional distress); Ausley v. Bishop, 515 S.E.2d 72, 77 (N.C. App. 1999) (same); Dellinger v. Pfizer, Inc., 2006 WL 2057654, at *5 (W.D.N.C. July 19, 2006) (“Given the broad language of the statute, and the absence of legislative intent or case law to the contrary, there is no reason to exclude a consumer’s personal injury from the category of injuries cognizable under the statute.”).
One would have thought that the statute itself answered the question. Ohio Rev. C. §1345.12(C) states that the act “does not apply to . . . “[c]laims for personal injury or death.” But never underestimate a determined pro-plaintiff court (something that’s fortunately changed). In Whitaker v. M.T. Automotive, Inc., 855 N.E.2d 825, 833 (Ohio 2006), the court held that this language only “barred claims that required proof of a personal injury in order to establish a . . . violation.” A plaintiff may still recover “noneconomic damages that are also recoverable in personal injury claims” as long as they are simply a “consequence” of the . . . violation. Id. “[A]ll forms of compensatory relief, including noneconomic damages, are included within the term “damages” [and] . . . are subject to trebling.” Id. at 834.
Fortunately, Whitaker involved only emotional distress, and its rationale has not been extended to trebling of actual personal injuries under the Ohio statute. Machne v. Samsung Telecommunications America, L.P., 2007 WL 1188918, at *2 (N.D. Ohio April 19, 2007) (“claims for personal injury. . .are not eligible for treble damages” under Whitaker); Glassner v. R.J. Reynolds Tobacco Co., 1999 WL 33591006, at *7 (N.D. Ohio June 29, 1999) (“claim for wrongful death damages” is “too closely related to personal injury damages” to be recoverable under the statute); cf. Pomianowski v. Merle Norman Cosmetics, Inc., 507 F. Supp. 435, 438 (S.D. Ohio 1980) (act “allow[s] a consumer personally injured by a misrepresented defective product to obtain actual, statutory minimum, or treble damages for nonpersonal losses growing out of deceptive sales conduct, and further to obtain actual damages for his personal injuries by joinder of an appropriate common law claim with the statutory cause of action”).
More recently, amendments to the the Ohio product liability statute have made clear that consumer protection claims (along with virtually everything else) are displaced in product liability cases – and the law was favorable on preclusion even before that. Mitchell v. Proctor & Gamble, 2010 WL 728222, at *4 (S.D. Ohio Mar. 1, 2010); Bouchard v. American Home Products Corp., 2002 WL 32597992, at *11 (N.D. Ohio, May 24, 2002); Schnell v. American Home Products Corp., 2000 WL 35777837, at *2 (N.D. Ohio, July 11, 2000); Blake v. Interneuron Pharmaceuticals, 1998 WL 35307753, at *1 (S.D. Ohio, Dec. 9, 1998).
There’s not a whole lot to go on, but in two identical opinions, the plaintiffs claimed they were entitled to recover for “emotional distress” in addition to several other categories of damages under the Oklahoma statute. The court held they were entitled to the other categories of damages, but never mentioned emotional distress. Brashears v. Sight ‘N Sound Appliance Centers, Inc., 981 P.2d 1270, 1274 (Okla. Civ. App. 1999); Fuller v. Sight ‘N Sound Appliance Centers, Inc., 982 P.2d 528, 533 (Okla. Civ. App. 1999). Thus, by negative implication….
The Oregon statute doesn’t apply to personal injury:
Plaintiff has not called our attention to anything in the legislative history of [the act] to support his contention to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including punitive damages and attorney fees. Neither has plaintiff cited any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.
This is not a case in which a plaintiff with no remedy or an inadequate remedy asks this court to recognize a new common law cause of action or to imply a new civil cause of action from a duty imposed by a criminal statute. Persons suffering personal injuries as the result of defective goods . . . already have remedies against the manufacturers and sellers of such goods in causes of action for negligence, breach of warranty and “strict liability.” Such remedies do not limit recovery to cases involving “ascertainable loss of money or property,” and include, among other things, recovery for pain and suffering.
For these reasons we hold that [the act] was not intended by the legislature to create such a new cause of action for personal injuries and that the trial court erred in its holding to the contrary.
Gross-Haentjens v. Leckenby, 589 P.2d 1209, 1210-1211 (Or. App. 1979). Accord Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris Inc., 185 F.3d 957, 968 (9th Cir. 1999) (applying Oregon law); Allen v. G.D. Searle & Co., 708 F. Supp. 1142, 1157-58 (D. Or. 1989)
Not in our home state, plaintiffs can’t, although the highest court hasn’t ruled. Several cases hold that plaintiffs can’t recover personal injury/emotional distress damages. McCauslin v. Reliance Finance Co., 751 A.2d 683, 685 (Pa. Super. 2000) (“[t]he Act does not specifically confer the right to recover damages for infliction of emotional distress, nor are there reported decisions recognizing such a recovery”); Wenrich v. Robert E. Cole, P.C., 2001 WL 4994, at *7 (E.D. Pa. Dec. 22, 2000) (“‘actual damages’ under the [act] exclude emotional distress damages”); Krisa v. Equitable Life Assurance Society, 113 F. Supp.2d 694, 707 (M.D. Pa. 2000) (“because the statute requires an ascertainable loss of money or property and limits recovery to ‘actual damages,’ [plaintiff] will not be entitled to recover emotional distress type damages); Krisa v. Equitable Life Assurance Society, 109 F. Supp.2d 316, 323 (M.D. Pa. 2000) (“recovery for emotional distress is not permitted under the [act]”); Nelson v. First Card, 1998 WL 107236, at *2 (E.D. Pa. Mar. 9, 1998) (“damages must be out-of-pocket losses, as recovery for emotional distress is not permitted”); Marino v. The Sports Authority, 940 F. Supp 792, 795-96 (E.D. Pa. 1996) (“to a legal certainty” “incidental and consequential damages, such as injury to person,” are not recoverable under statute); Bryant v. Woodland, 111 B.R. 474, 479-80 (E.D. Pa. 1990) (“[r]ecovery for emotional distress is not permitted under the [act]”); In re Clark, 96 B.R. 569, 583 (Bankr. E.D. Pa. 1989) (“we will not allow the Claimants to treble their awards for ‘discomfort and humiliation’”); DiTeodoro v. J.G. Durand International, 566 F. Supp 273, 275 (E.D. Pa. 1983) (damages limited to purchase price of the product).
Didn’t find anything for Rhode Island.
We didn’t find anything for South Carolina.
Ditto for South Dakota.
We already discussed Tennessee at the beginning of this post, since Birdsong applied the Tennessee statute. In addition, the court in In Re: Yamaha Motor Corp. Rhino ATV Products Liability Litigation, 2010 WL 4007219, at *1 (W.D.Ky. Oct. 13, 2010), came to the same conclusion about the Tennessee statute.
Texas used to allow such foolishness. The legislature took care of the problem, specifying that the Texas consumer protection statute allows only “economic damages” and for good measure defining that term:
“Economic damages” means compensatory damages for pecuniary loss, including costs of repair and replacement. The term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.
Tex. Bus. & Com. Code §17.45(11).
In Jackson v. Philip Morris Inc., 46 F. Supp.2d 1217, 1220-21 (D. Utah 1998), the court held “that plaintiffs’ consumer protection claim was really one of personal injury and thus excluded from available actions under the Act.”
There’s no relevant law that we could find in Vermont.
At least one Virginia trial court reacted very negatively to a consumer protection claim alleging personal injury:
[E]ven considering the remedial nature of the statute, and the fact that it should be broadly construed, this court feels that a fair reading of the [act] indicates that the “actual damages” allowed by it are limited to only those pecuniary, out-of-pocket losses that Plaintiff has sustained. An action for a violation of the [act] is not the correct avenue to recover other “personal injury” damages. These damages can be, and should be, recovered in a products liability case. Therefore, this court will not allow a Consumer Protection Act claim to be turned in to a torts claim for product liability.
Deane v. Novacare Orthotics & Prosthetics East, Inc., 1999 WL 1114675, at *2 (Va. Cir. Nov. 18, 1999). A more recent federal court, however, disagreed – at least with respect to emotional distress. Barnette v. Brook Road, Inc., 429 F. Supp.2d 741, 752 (E.D. Va. 2006).
Didn’t find anything as to the Virgins.
There’s no doubt that Washington does not allow personal injuries to be recovered under that state’s consumer protection statute. In 2009, the Washington Supreme Court held:
The legislature’s use of the phrase “business or property” in the [act] is restrictive of other categories of injury and is used in the ordinary sense to] denote a commercial venture or enterprise. . . . Personal injury damages, however, are not compensable damages under the [act] and do not constitute injury to business or property.
Had our Legislature intended to include actions for personal injury within the coverage of the [act], it would have used a less restrictive phrase than injured in his or her ‘business or property.’
Ambach v. French, 167 Wash.2d 167, 216 P.3d 405, 408 (Wash. 2009) (citation and quotation marks omitted). Nor was Ambach the first Washington court to so hold. See Leingang v. Pierce County Medical Bureau, Inc., 930 P.2d 288, 300-301 (Wash. 1997); Washington State Physicians Insurance Exchange & Ass’n v. Fisons Corp., 858 P.2d 1054, 1064 (Wash. 1993); Hiner v. Bridgestone/Firestone, Inc., 959 P.2d 1158, 1163 (Wash. App. 1998), rev’d on other grounds, 978 P.2d 505 (Wash. 1999); Stevens v. Hyde Athletic Industries, Inc., 773 P.2d 871, 873 (Wash. App. 1989); Association of Washington Public Hospital Districts v. Philip Morris, 241 F.3d 696, 705-06 (9th Cir. 2001) (applying Washington law); Coleman v. American Commerce Insurance Co., 2010 WL 3720203, at *4 (W.D. Wash. Sept. 17, 2010); Braden v. Tornier, Inc., 2009 WL 3188075, at *4 (W.D. Wash. Sept. 30, 2009).
We didn’t find any West Virginia law on point.
Wisconsin has a special consumer protection statute concerning prescription drug labeling, however it limits remedies to injunctive relief, except for “monetary loss.” Wis. Stat. Ann. §100.182(5)(a). Personal injury actions alleging defects in prescription drugs “fall outside the scope of the Act.” Hoppe v. SmithKline Beecham Corp., 437 F. Supp.2d 331, 338 (E.D. Pa. 2006) (applying Wisconsin law). “Although actual damages are recoverable under the [Wisconsin act], they are limited to the recovery of pecuniary loss.” Moscinski v. Bristol-Myers Squibb Co., 2009 WL 5216962, at *9 (D.N.J. Dec. 30, 2009) (applying Wisconsin law).
There’s no Wyoming law, probably because “the Wyoming [statute] does not provide for a private right of action.” Wilson v. State Farm Mutual Automobile Insurance Co., 795 F. Supp. 1077, 1082 (D. Wyo. 1992). At least that was the case in 1992.