De Bouse v. Bayer A.G. ( 2008 )

NO. 5-06-0077
N O T IC E
Decision filed 10/09/08. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
TERESA DE BOUSE, Individually and On ) Appeal from the
Behalf of Others Similarly Situated, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellee, )
)
v. ) No. 04-L-53
)
BAYER AG, BAYER CORPORATION, )
SMITHKLINE BEECHAM CORPORATION, )
d/b/a GLAXOSMITHKLINE, )
GLAXOSMITHKLINE PLC, MARCY GRIM, )
MICHAEL HARVEY DAVIDSON, M .D., )
and MICHAEL LEVER, ) Honorable
) Michael J. O'Malley,
Defendants-Appellants. ) Judge, presiding.
________________________________________________________________________
JUSTICE DONOVAN delivered the opinion of the court:
A class action complaint sounding in consumer fraud was filed in the circuit court of
St. Clair County by the plaintiff, Teresa De Bouse, individually and on behalf of other
similarly situated Illinois residents, alleging that the defendants, Bayer AG, Bayer Corp.,
SmithKline Beecham Corp., doing business as GlaxoSmithKline, GlaxoSmithKline PLC,
Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever, committed common law
fraud and violated the Illinois Consumer Fraud and Deceptive Business Practices Act (the
Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)), in concealing negative safety
and efficacy data on a pharmaceutical product it offered for sale in Illinois. The St. Clair
County circuit court granted the plaintiff's motion to certify the case as a class action. The
circuit court denied the defendants' motion for a summary judgment, but it certified three
questions of law for appellate review pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R.
1
308(a)). The defendants filed a petition for leave to appeal the class certification order
pursuant to Supreme Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)), and leave was initially
granted. The defendants filed a separate application, petitioning this court to consider the
questions that had been certified by the trial court, and the application was granted. The
appeals were consolidated under cause No. 5-06-0077.
After reviewing the record, we determined that the defendants' appeal from the class
certification order was untimely, and we dismissed the appeal for a lack of jurisdiction. De
Bouse v. Bayer AG, 373 Ill. App. 3d 774, 782, 869 N.E.2d 365, 372 (2007). The defendants
included a number of arguments in regard to the denial of their summary judgment motion.
We declined to specifically address those arguments on grounds that the denial of a summary
judgment motion is not a final, appealable order, that this court had limited the interlocutory
appeal to the certified questions, and that there appeared to be questions of material fact
about which discovery had not been conducted. De Bouse, 373 Ill. App. 3d at 783, 869
N.E.2d at 372. As to the certified questions, we found that in order to establish consumer
fraud under a theory of a concealment of a material fact in the conduct of trade or commerce,
it is sufficient to show that the facts concealed were known to the defendant at the time of
the concealment, that the defendant intended that the plaintiff rely on the deception, that the
plaintiff is actually deceived, whether by direct or indirect deception, and that if the plaintiff
had known about the concealed facts, she would not have purchased the product. De Bouse,
373 Ill. App. 3d at 784-85, 869 N.E.2d at 373-74. The defendants appealed. The Illinois
Supreme Court entered a supervisory order, directing this court to vacate the judgment and
to reconsider it in light of Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 879 N.E.2d 910
(2007). De Bouse v. Bayer AG, 226 Ill. 2d 613, 880 N.E.2d 181 (2008). In accordance with
the mandate of the supreme court, we vacated our prior opinion, and we ordered
supplemental briefing. Upon reconsidering the case in light of Barbara's Sales, Inc., we do
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not find that a different result is warranted. Our reasons are set forth in the following
opinion.
I. Procedural History
This is a class action case involving the prescription drug cerivistatin, which was sold
in the United States under the brand name Baycol. Baycol is a member of a class of statin
drugs that are prescribed to lower the lipid levels of individuals with high cholesterol.
Between 1997 and 2000, the Food and Drug Administration had approved the various doses
of Baycol for use in the United States. The plaintiff's personal physician prescribed Baycol
for the plaintiff beginning in February 2001. The plaintiff purchased Baycol on February 22,
2001, May 23, 2001, and July 30, 2001. Each prescription contained 30 tablets. The price
for 30 tablets was $51.09, but the plaintiff's copay was $25. In August 2001, Baycol was
withdrawn from the market because its use was associated with a serious medical condition
called rhabdomyolysis. Sometime in August 2001, a pharmacist from the plaintiff's
pharmacy called the plaintiff and directed her to stop taking Baycol and to contact her
physician for an alternative drug. The plaintiff did not use the remainder of the Baycol
prescription.
The plaintiff filed a three-count complaint against the defendants on behalf of herself
and a class of Illinois residents who had purchased Baycol. Illinois residents who allege or
have alleged personal injuries or death as a result of taking Baycol were excluded from the
class. Count I and count III of the first amended complaint are brought under the Consumer
Fraud Act (815 ILCS 505/1 et seq. (West 2004)). Count I alleges that the defendants offered
Baycol for sale, representing that it was reasonably safe for its intended purpose, that the
defendants knowingly and intentionally concealed and suppressed information regarding
known risks and dangers of Baycol with the intent that the plaintiff purchase it, that the
plaintiff was actually deceived in that she purchased a drug that she would not have
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purchased had she been aware of the information regarding risks and dangers that had been
concealed and suppressed, and that she suffered damages in the amount of the purchases.
Count III alleges that by concealing the known risks and dangers associated with use of
Baycol, the defendants were able to charge prices far in excess of the fair market value of the
drug, thereby committing one or more unfair practices under the Consumer Fraud Act. Count
II alleges common law civil conspiracy to commit fraud based on the aforementioned
violations of the Consumer Fraud Act.
In a discovery deposition, the plaintiff testified that she had no independent
knowledge of Baycol at the time her physician prescribed it. She had not reviewed medical
references on Baycol. She had not done any research on Baycol. The plaintiff stated that she
relied on her physician to make medical judgments about proper medications. The plaintiff
stated that she understood that some prescription medications have potential side effects. She
testified that she would not take a medication if she determined that the risks of harm
outweighed the benefits. She stated that she would rely on her physician and on the drug
information sheet that was attached to the prescription bag by the pharmacy to make a
determination regarding the purchase and use of prescription drugs.
The defendants filed a motion for a summary judgment, claiming that the plaintiff's
deposition testimony establishes, as a matter of law, that she cannot make a prima facie case
under the Consumer Fraud Act. The defendants stated that the plaintiff testified that she had
not seen, read, or heard anything about the drug and that she relied on her physician's
judgment in purchasing the product. The defendants argued that the plaintiff's own testimony
shows that she could not have been actually deceived or damaged by any misrepresentation
or concealment by the defendants. The plaintiff responded that actual deception can be
established where the defendants, in offering a prescription drug for sale while concealing
adverse reactions and known risks, misrepresented that the product was safe for its intended
4
uses, that in the absence of published information about the risks and dangers, the plaintiff
reasonably relied on the misrepresentations that the product was safe for its intended uses,
and that the plaintiff would not have purchased the product had she known about the safety
risks.
The circuit court denied the defendants' motion for a summary judgment. The court
certified three questions of law for review in accordance with Supreme Court Rule 308(a).
II. The Rule 308(a) Appeal
At the outset, we note that the defendants have devoted a considerable portion of their
brief in the Rule 308(a) appeal to arguments claiming that the circuit court erred in denying
their motion for a summary judgment. We decline to specifically address those arguments
for three reasons. First, the denial of a motion for a summary judgment is interlocutory in
nature, and it is not a final, appealable order. See La Salle National Bank v. Little Bill "33"
Flavors Stores, Inc., 80 Ill. App. 2d 298, 225 N.E.2d 465 (1967). Second, we limited
interlocutory review to the legal questions certified by the trial court. Third, after considering
the theory of consumer fraud alleged in the complaint and discussed in the plaintiff's
testimony, we find that there appear to be material factual issues about which discovery has
not been had. A review of the defendants' motion for a summary judgment would not
advance a resolution of the case or serve judicial economy.
The circuit court determined that a resolution of the following questions of law could
materially advance the disposition of the litigation, and it certified the questions in
accordance with Supreme Court Rule 308(a):
"I. Whether an Illinois consumer who purchases a pharmaceutical product,
later withdrawn from the market because it was deemed unsafe, can maintain an
action under the Illinois Consumer Fraud Act [citation], even though the
pharmaceutical company did not engage in direct communication or advertising to the
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consumer.
II. Whether the Defendants['] offering for sale of a product in Illinois is a
representation to prospective customers that the product is reasonably safe for its
intended purpose such that proof of a defendants' [sic] failure to disclose safety risks
associated with the product to consumers is a violation of the Illinois Consumer Fraud
Act.
III. Whether fraudulent statements or omissions made by a defendant to third[]
parties, other than the consumer, with the intent that they (1) reach the plaintiff[] [and]
(2) influence plaintiff's action[,] and (3) [when] plaintiff relies upon the statements
to his detriment, can support an action under the Illinois Consumer Fraud Act."
The elements of a claim under the Consumer Fraud Act are as follows: (1) a deceptive
act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the
deception, (3) the occurrence of the deception in a course of conduct involving trade or
commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.
815 ILCS 505/2 (West 2004); Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359,
373, 695 N.E.2d 853, 860-61 (1998). The certified questions seem to be directed toward
clarifying the factual allegations necessary to satisfy these elements in a case asserting an
intentional suppression of material facts and indirect deception.
In Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 805 N.E.2d 213 (2004), the
Illinois Supreme Court recognized that though proof of the actual deception of a plaintiff is
required to establish the proximate cause requirement, the deception need not always be
direct between the defendant and the plaintiff. Shannon, 208 Ill. 2d at 525-26, 805 N.E.2d
at 218. It is enough that the defendant's deception, whether made directly or indirectly, be
committed with the intention that it influence the plaintiff's action and that the plaintiff relied
on the deception to her detriment. Shannon, 208 Ill. 2d at 526, 805 N.E.2d at 218; St. Joseph
6
Hospital v. Corbetta Construction Co., 21 Ill. App. 3d 925, 954, 316 N.E.2d 51, 72 (1974).
In illustrating the concept of "indirect deception," the supreme court proposed a hypothetical
case in which a defendant's product literature had actually deceived a particular builder,
architect, or contractor, resulting in the installation of defective siding on a home. Shannon,
208 Ill. 2d at 526, 805 N.E.2d at 218. The supreme court concluded, under those
circumstances, that the purchaser, who may have no independent knowledge of the qualities
or expected performance of a siding, is deceived because of the deception of the builder,
architect, or contractor, who reasonably should have correct knowledge, and that the damages
could have arguably occurred as a result of the indirect deception. Shannon, 208 Ill. 2d at
526, 805 N.E.2d at 218.
The Illinois Supreme Court also recognized that the omission or concealment of a
material fact in the conduct of trade or commerce constitutes consumer fraud. Connick v.
Suzuki Motor Co., 174 Ill. 2d 482, 504, 675 N.E.2d 584, 595 (1996). A material fact exists
where a buyer would have acted differently if he had known of the suppressed information
or if the concealed fact concerned the type of information on which a buyer would be
expected to rely in making a decision regarding the purchase of the product. Connick, 174
Ill. 2d at 505, 675 N.E.2d at 595.
In order to establish consumer fraud under a theory of concealment by silence,1 the
1
A similar cause of action was asserted in Jensen v. Bayer AG, 371 Ill. App. 3d 682,
862 N.E.2d 1091 (2007). In Jensen, a summary judgment was granted for the defendant
because the plaintiff failed to submit some evidence on two elements that are necessary to
prove a violation of the Consumer Fraud Act, i.e., the defendant's intent to conceal or that
the plaintiff was actually deceived by any omission made by the defendant. Jensen was
decided after the parties had an opportunity for discovery on the merits. Aside from
recognizing the existence of a cause of action under similar facts, we do not find Jensen to
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plaintiff must allege and establish that the defendant concealed material facts regarding its
product, that the deception, whether made directly or indirectly, was committed with the
intent that it influence the plaintiff's action, that the plaintiff actually relied on the defendant's
deception, and that if the plaintiff had known of the facts concealed, she would not have
purchased the product. Connick, 174 Ill. 2d at 504-05, 675 N.E.2d at 595; Pappas v. Pella
Corp., 363 Ill. App. 3d 795, 804-06, 844 N.E.2d 995, 1003-04 (2006).
The defendants submit that this case is governed by a line of decisions in which the
Illinois Supreme Court held that deceptive advertising could not be the proximate cause of
damages unless the plaintiff was actually deceived by the misrepresentation, and they cite
Avery v. State Farm Mutual Auto Insurance Co., 216 Ill. 2d 100, 835 N.E.2d 801 (2005),
Price v. Philip Morris, Inc., 219 Ill. 2d 182, 848 N.E.2d 1 (2005), and Zekman, 182 Ill. 2d
359, 695 N.E.2d 853, among others. In those cases, the alleged deceptions arose from
affirmative representations, such as specific promises or deceptive advertisements. In those
types of cases, the supreme court has said that in order to establish proximate cause, the
plaintiff must allege and show that she was actually deceived by a specific promise or
representation. Avery, 216 Ill. 2d at 200, 835 N.E.2d at 861; Zekman, 182 Ill. 2d 375-76, 695
N.E.2d at 861-62.
In a supplemental brief filed on remand from the supervisory order, the defendants
claimed that Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 879 N.E.2d 910 (2007),
supports its position. The defendants argued that in Barbara's Sales, Inc., the Illinois
Supreme Court emphasized that actual deception must be established and that a deceptive
advertising campaign cannot be the proximate cause of damages unless representations made
in the campaign actually deceived the plaintiff. The defendants argued that based on the
plaintiff's own testimony, the plaintiff cannot meet the threshold requirements set out in
be helpful in regard to the issues here.
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Barbara's Sales, Inc.
In Barbara's Sales, Inc. v. Intel Corp., the plaintiff alleged that the defendant made
affirmative deceptions in marketing a new generation of microprocessor. Barbara's Sales,
Inc., 227 Ill. 2d at 73, 879 N.E.2d at 926. While the primary issue in Barbara's Sales, Inc.
concerned a choice-of-law question, the adequacy of the consumer fraud allegations was
considered as a part of the class certification issue. In Barbara's Sales, Inc., the Illinois
Supreme Court held that the defendant's implicit representations that its Pentium 4
microprocessor was "the best," and that it had a higher overall performance when compared
with the Pentium III, amounted to "puffing" and that the representations were not "deceptive
acts" within the purview of the Consumer Fraud Act. Barbara's Sales, Inc., 227 Ill. 2d at 73,
879 N.E.2d at 926. The supreme court also found that though the defendant's internal
documents revealed that its predecessor product, the Pentium III, was faster in some of the
performance testing when compared with the Pentium 4, the documents did not establish
deceptive advertising because it was not apparent that the defendant had made any false
public claims regarding specific speed benchmarks and the internal documents revealed that
the processing speeds varied by application. Barbara's Sales, Inc., 227 Ill. 2d at 76, 879
N.E.2d at 927-28.
Unlike Barbara's Sales, Inc., the case at bar does not concern affirmative
representations or "puffing" in a marketing campaign. Barbara's Sales, Inc., 227 Ill. 2d at
73, 879 N.E.2d at 926. Unlike Barbara's Sales, Inc., the defendants in this case allegedly
suppressed and concealed negative safety and efficacy data associated with the use of Baycol,
to influence prescribing physicians and their patients. The act of intentionally suppressing
and concealing material information–information that identifies adverse reactions and serious
injuries associated with use of a pharmaceutical product–with the intent to influence
purchasing decisions is an implicit misrepresentation of the safety and efficacy of the
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product, and if the consumer is actually deceived thereby, the deception may give rise to a
consumer fraud action. Given the significant differences between Barbara's Sales, Inc. and
the case at bar, we do not believe that Barbara's Sales, Inc. is controlling here.
In comparing and contrasting the aforementioned authorities for purposes of
discerning the factual allegations necessary to a cause of action under the Consumer Fraud
Act, we find very fine but significant distinctions between cases alleging an affirmative
deception and cases alleging a deception by silent concealment and also between cases
alleging direct deception and cases alleging indirect deception. These distinctions remain
after Barbara's Sales, Inc. Had the Illinois Supreme Court determined that the theory of
concealment by silence was no longer sound, it would have expressly overruled the line of
cases approving that theory. Accordingly, we conclude that the theory remains viable.
The complaint at issue involves a claim of indirect deception by silent concealment.
The plaintiff has alleged that she had no independent knowledge of the benefits and the
dangers associated with the use of Baycol, that the suppression of data that identified adverse
reactions and serious injuries associated with use of Baycol constituted an implicit
misrepresentation of the safety and efficacy of Baycol, and that the suppression of material
facts was a deceptive practice under the Consumer Fraud Act. The plaintiff has alleged that
she was actually deceived by the defendant's suppression and concealment of negative
efficacy and safety information associated with the use of Baycol, that she was deceived
because of the alleged deception of persons, such as her physician and her pharmacist, who
reasonably should have correct knowledge about the efficacy and safety of Baycol, and that
she would not have purchased Baycol had she been made aware of the suppressed
information. The plaintiff also alleged that she suffered actual out-of-pocket losses in
purchasing the product.
We pause here to note that we differ with the dissent not only on whether the plaintiff
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can establish actual deception but also on the issue of proximate cause for damages. The
dissent notes that the complaint does not allege that the plaintiff suffered any personal injury
as a result of using the drug or that the drug did not lower the plaintiff's cholesterol. The
dissent suggests that the plaintiff cannot establish that she suffered actual damages, even if
the purchase was based on deceptive conduct, if the drug lowered the plaintiff's cholesterol
without causing any side effects, because the plaintiff would have gotten exactly what she
paid for: a safe, cholesterol-lowering drug. In our view, a consumer who is fortunate to
avoid a known but concealed adverse reaction associated with the use of a medication does
not necessarily "get her money's worth." Product value is determined by the price, the
product's efficacy and benefits, the product's safety risks, and the availability of other
products relative to price, performance, and risk. A consumer cannot judge "true value"
where known information regarding product performance is withheld. A consumer is entitled
to make an informed choice, in conjunction with her health care professionals, about the
actual risks and benefits of a prescription drug. In this case, the plaintiff clearly stated that
she would not have purchased Baycol, and accepted the risks associated with use of Baycol,
had she been informed of the risks.
Following the reasoning and bases underlying the decisions in Shannon and Connick,
we answer the first and third certified questions in the affirmative, because the Illinois
Supreme Court has recognized a cause of action under the Consumer Fraud Act based on a
claim of indirect deception. The second question, as phrased, presents a mixed question of
fact and law, and therefore it is not a proper question under Supreme Court Rule 308(a).
III. Jurisdiction and the Class Certification Order
The defendants filed their petition for leave to appeal the class certification order
pursuant to Supreme Court Rule 306(a)(8). The plaintiff moved to dismiss the appeal for a
lack of appellate jurisdiction. Initially, this court denied the plaintiff's motion to dismiss and
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granted the defendants' petition for leave to appeal. After reviewing the record, we
determined that it was necessary to revisit the issue of jurisdiction. After reconsidering the
issue of jurisdiction in light of the record, we conclude that the Rule 306(a)(8) appeal was
untimely filed and must be dismissed.
The record shows that a hearing was held on the plaintiff's motion for class
certification on July 29, 2005. At the close of the hearing, the circuit court announced that
it would take the matter under submission. The court then entered a written order stating that
the issue was under submission. The parties submitted proposed orders for the court's
consideration. On September 1, 2005, the court signed a 12-page order granting the
certification of the class. The order is contained in the court file. It bears a file stamp of
September 2, 2005. The court file also includes a computerized docket sheet that contains
an entry dated September 2, 2005, indicating that a 12-page order was entered that date.
There is no indication that the order was served personally or by mail on counsel of record.
The record shows that the parties appeared in open court on September 27, 2005, and
December 29, 2005, in relation to the summary judgment motion that had been filed in the
case. The order entered after the hearing on September 27, 2005, specifically states that all
the parties appeared by counsel on that date. The parties also appeared for a status
conference on January 11, 2006.
On January 25, 2006, the defendants filed a motion to vacate or amend the class
certification order nunc pro tunc on the grounds that they had not received a notice of the
entry of the order granting class certification, that the circuit court clerk had failed to serve
a copy of the order on all the parties and had failed to note that service in the file as required
by Twentieth Judicial Circuit Rule 2.06 (20th Judicial Cir. Ct. R. 2.06 (eff. December 12,
1991)), and that they made diligent efforts to monitor the court file once the motion had been
taken under advisement by the court. The defendants asserted that the first time they became
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aware that the order had been entered was during the status conference on January 11, 2006,
that their right to appeal was "severely prejudiced," and that the circuit court had the
authority to enter a nunc pro tunc order to avoid the prejudice. The defendants attached
affidavits from the defendants' attorneys and their staff members. The affidavits outlined the
efforts undertaken to monitor the court file.
The plaintiff filed a response in opposition to the defendants' motion for an order nunc
pro tunc. Therein, the plaintiff stated that her attorneys obtained a copy of the class
certification order by appearing in person at the circuit clerk's office on or about September
5, 2005, and making an inquiry about the status of the class certification motion. The
plaintiff attached affidavits from its attorneys and a copy of the computerized docket sheet
that revealed an entry of September 2, 2005, referencing a 12-page order.
On January 30, 2006, the court held a hearing on the defendants' motion to vacate or
amend the class certification order nunc pro tunc. After considering the arguments of
counsel, the judge said, "It's only just that I enter an order nunc pro tunc if that in some way
can protect your right to appeal this thing if that's the right thing to do." The court then
entered the following order:
"Defendants' Motion to Vacate or Amend Class Certification Order Nunc Pro
Tunc called and heard. Over plaintiff's objection, said motion is hereby GRANTED.
The Court's Order dated September 2, 2005, granting Plaintiff's Motion For Class
Certification is hereby vacated nunc pro tunc and amended to be entered January 11,
2006, the date the defendants' [sic] received notice of said Order."
The defendants filed their petition for leave to appeal the certification order on February 10,
2006.
Supreme Court Rule 306(a)(8) allows a party to petition for leave to appeal from an
order granting or denying the certification of a class action. Supreme Court Rule 306(c) (210
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Ill. 2d R. 306(c)) requires that the petition be filed in the appellate court within 30 days after
the entry of the order granting or denying the certification. The 30-day time limit under Rule
306 is jurisdictional. Kemner v. Monsanto Co., 112 Ill. 2d 223, 236, 492 N.E.2d 1327, 1333
(1986); Leet v. Louisville & Nashville R.R. Co., 131 Ill. App. 3d 763, 765, 475 N.E.2d 1340,
1341-42 (1985). There is no provision for extending the time for filing a petition for
interlocutory appeal other than by permission of the reviewing court pursuant to Rule 306(f)
(210 Ill. 2d R. 306(f)).
In this case, the certification order was entered on September 2, 2005. By our
calculation, the petition for leave to appeal should have been filed no later than Monday,
October 3, 2005. The defendants' petition for leave to appeal was not filed until February
10, 2006, and they did not seek permission from this court to file an untimely petition for
leave to appeal. In accordance with the time limits set forth in Supreme Court Rule 306, the
defendants' petition for leave to appeal was filed out of tim e. The defendants presented a
number of legal and equitable arguments to the trial court in support of their motion to vacate
or amend the certification order nunc pro tunc. We have considered those arguments, and
for the reasons discussed below, we have concluded that the defendants have not established
any basis for excusing their failure to file the petition for leave to appeal within the 30-day
time limit.
The defendants have argued that an order to vacate or amend the certification order
nunc pro tunc is proper because the circuit clerk's failure to provide notice of the entry of the
certification order prejudiced their right to file a petition for leave to appeal. The Illinois
Supreme Court has considered and rejected similar arguments. Mitchell v. Fiat-Allis, Inc.,
158 Ill. 2d 143, 632 N.E.2d 1010 (1994); Granite City Lodge No. 272, Loyal Order of the
Moose v. City of Granite City, 141 Ill. 2d 122, 565 N.E.2d 929 (1990).
In Mitchell v. Fiat-Allis, Inc., the trial court signed an order disposing of the case on
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February 27, 1991. The order was file-stamped March 1, 1991, and included instructions to
the circuit court clerk to send a copy of the order to the attorneys of record. Mitchell's
attorney first learned of the order on April 25, 1991. After conferring with opposing counsel
and the trial court, Mitchell's counsel filed a petition to withdraw or vacate the order. On
April 29, 1991, the trial court granted the petition, withdrew the order dated February 27,
1991, and reentered the same order, effective April 29, 1991. The appellate court found that
it had jurisdiction and considered the merits of the appeal. The Illinois Supreme Court
reversed, finding that the trial court lacked the authority to vacate and reenter the order more
than 30 days after it had been entered. The supreme court held that trial courts lacked the
authority to excuse compliance with the supreme court rules governing the time for filing a
notice of appeal. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012.
The supreme court has stated clearly that the parties bear the responsibility to monitor
the status of a case and that this responsibility is not lessened where the circuit clerk fails to
give notice of the entry of the order. Fiat-Allis, Inc., 158 Ill. 2d at 151, 632 N.E.2d at 1013;
Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 127, 565 N.E.2d at 931.
Actual notice is not required so long as the order appealed from was expressed publicly, in
words, at the situs of the proceeding. Fiat-Allis, Inc., 158 Ill. 2d at 148, 632 N.E.2d at 1012;
Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 123, 565 N.E.2d at 929.
The facts in the case at bar are similar to those in Fiat-Allis, Inc. Here, a typewritten
order granting class certification was entered into the court file on September 2, 2005, and
its entry was noted in the computerized docket sheet. The defendants indicated that they first
learned of the order on January 11, 2006, months after the time for filing a petition for leave
to appeal had passed. They filed a motion to vacate or amend the certification order nunc pro
tunc on January 25, 2006. On January 30, 2006, the trial court entered an order vacating
nunc pro tunc the order entered September 2, 2005, and amended it to be entered January 11,
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2006. In our view, the decision in Fiat-Allis, Inc. controls this issue. Thus, the trial court
lacked the authority to vacate and reenter the same order more than 30 days after it had been
originally entered in order to excuse compliance with the filing requirements of Rule 306.
The defendants have also asserted that Twentieth Judicial Circuit Rule 2.06 requires
the circuit clerk to serve copies of orders to the attorneys of record, that they relied on the
circuit clerk to comply with the rule, and that they were prejudiced by the circuit clerk's
failure to comply. Local rule 2.06 directs the circuit clerk to serve on all the parties of
record, by personal service or by mail, a copy of an order within three days of its entry and
to note in the court file compliance with the rule. 20th Judicial Cir. Ct. R. 2.06 (eff.
December 12, 1991). Under Supreme Court Rule 21(a) (134 Ill. 2d R. 21(a)), the circuit
court is authorized to adopt rules for the orderly disposition of its business. However, local
rules may not be construed to modify, limit, abrogate, or otherwise conflict with the Illinois
Supreme Court rules and the existing laws of Illinois. See 134 Ill. 2d R. 21(a); People v.
Schroeder, 102 Ill. App. 3d 133, 137, 429 N.E.2d 573, 577 (1981). We conclude that the
circuit court had no authority to toll or to extend the time for filing a Rule 306 appeal in order
to remedy the circuit clerk's failure to comply with a local administrative rule.
Furthermore, the record belies the defendants' assertions that they detrimentally relied
on local rule 2.01 and that they were prejudiced by the circuit clerk's noncompliance with the
rule. In the pleadings and affidavits filed in the trial court, the defendants detailed the efforts
they had made to monitor the status of the class certification motion. The defendants'
attorneys stated that they assigned paralegals or other staff members to monitor the court file
once the court took the class certification motion under advisement. In addition, the
defendants' attorneys appeared in open court on September 27, 2005, prior to the running of
the 30-day time limit, to argue their summary judgment motion. The record shows that the
defendants had ample opportunities to inspect the court file and to ascertain whether an order
16
had been entered on the class certification motion. We find it remarkable and inexplicable
that the attorneys did not inquire about the status of the class certification motion when they
appeared before the court on September 27, 2005. The steps taken by the defendants to
monitor the court file undermine their claims of reliance on the local rule to their detriment.
The defendants claimed that the circuit court has the authority to vacate or amend and
to reenter an order to avoid prejudice to the parties. In support of that contention, they cited
Comdisco, Inc. v. Dun & Bradstreet Corp., 306 Ill. App. 3d 197, 713 N.E.2d 698 (1999), and
Graves v. Pontiac Firefighters' Pension Board, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996).
In Graves v. Pontiac Firefighters' Pension Board, the trial court entered an order at the close
of the evidence, stating that the case was being taken under advisement and that the court
would rule by mail. Subsequently, the trial court ruled on the motion, but through an
oversight it did not send copies to the parties. When the oversight was brought to the court's
attention, it entered a new order acknowledging its oversight and providing that the earlier
order would be final for purposes of appeal as of the date that the new order was mailed. An
appeal was taken within 30 days of the new order. In considering whether the appeal had
been timely filed for purposes of jurisdiction, our colleagues in the Fourth District held that
because the trial court had expressly stated that it would rule by mail, the initial order did not
comport with the provisions of the court's pronouncements and it did not become final until
mailed by the circuit court. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141.
The facts and circumstances in Comdisco, Inc. are similar to those in Graves in that
the trial court noted that the appellant relied on the trial court's standard operating procedure
of mailing a copy of the final judgment to the parties and that the court had failed to mail the
judgment in that case. Comdisco, Inc., 306 Ill. App. 3d at 202, 713 N.E.2d at 700. The case
before us is distinguishable from the aforementioned cases on its facts. Here, the trial court
did not expressly provide that it would rule by mail, and there is no evidence of a standard
17
operating procedure. As previously noted, the detailed accounts of the actions taken by the
defendants to monitor the status of the certification motion belie the claims of detrimental
reliance.
As we reviewed this issue, we found it noteworthy that the Fourth District has
declined to extend the Comdisco, Inc. decision to a case where the trial judge did not find
that the plaintiff's failure to timely file his notice of appeal had been the direct result of the
court's not following its usual practice of mailing copies of its docket entries to the parties.
Pappas v. Waldron, 323 Ill. App. 3d 330, 336, 751 N.E.2d 1276, 1280-81 (2001). The
Fourth District also recently questioned whether its decision in Graves is consistent with the
supreme court rules and Fiat-Allis, Inc. Berg v. White, 357 Ill. App. 3d 496, 501, 828 N.E.2d
889, 893 (2005). The few decisions in which a court has employed equitable principles to
cure the mistakes of ministerial officers are limited to the specific facts and circumstances
presented in those cases. The case at bar is not analogous to those cases.
Although the issue was not raised by the parties, we have also considered the propriety
of the "nunc pro tunc" order. The purpose of a nunc pro tunc order is to correct the record
of a judgment, to correct a clerical error or a matter of form so that the record conforms to
the judgment actually rendered by the court. Beck v. Stepp, 144 Ill. 2d 232, 238-39, 579
N.E.2d 824, 827-28 (1991); In re Marriage of Breslow, 306 Ill. App. 3d 41, 53, 713 N.E.2d
642, 651 (1999). In this case, the judge specifically stated that he would enter a nunc pro
tunc order "if that in some way can protect [the defendants'] right to appeal this thing if that's
the right thing to do." The nunc pro tunc order was not issued to conform the order to the
ruling actually rendered on September 2, 2005. It was not issued to amend an errant
provision in the September 2, 2005, order. Its only purpose was to restart the 30-day appeals
clock.
The situation faced by the trial court is similar to that which confronted the trial court
18
in Fiat-Allis, Inc. In that case, the Illinois Supreme Court recognized that the circuit court's
attempt to assist counsel was understandable and well-intentioned, but the court concluded
that it was errant just the same. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012. The
supreme court stated, "Attorneys are not excused from following the filing requirements [of
the supreme court rules] merely because a judge has recommended a procedural route that
lies beyond the judge's authority to travel." Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d
at 1013.
In our view, Fiat-Allis, Inc. controls the present case. Each party had a responsibility
to closely and adequately monitor the progress of its case and the court's rulings in order to
ensure that the much-anticipated petition for leave to file the interlocutory appeal was timely
filed. That was not accomplished here. The circuit clerk's failure to mail copies of the order
of September 2, 2005, to the parties does not excuse the untimely filing of the petition for
leave to appeal. The nunc pro tunc order was not a valid means by which the circuit court
could reenter the exact same order and thereby start a new 30-day period in which to file an
interlocutory appeal.
The record clearly shows that the order granting the class certification was a part of
the court file and available for public inspection. It was also noted in the docket entries.
There is no provision for extending the time for filing a petition for interlocutory appeal other
than by permission of the reviewing court pursuant to Rule 306(f), and that was not done
here. The time for filing the petition for leave to appeal is jurisdictional, and the failure to
meet it or to secure a timely extension of time from the appellate court will result in the
dismissal of the appeal. Accordingly, we find that the defendants' Rule 306(a)(8) petition for
leave to appeal the class certification was untimely filed and that the appeal must be
dismissed for a lack of jurisdiction.
IV. Summary and Conclusion
19
The Rule 306(a)(8) appeal of the class certification order is hereby dismissed for a
lack of jurisdiction. We have answered certified questions I and III in the affirmative. We
have determined that certified question II is not a proper question under Supreme Court Rule
308, and therefore we declined to address it. We remand the case to the trial court for further
proceedings.
Rule 306(a)(8) appeal dismissed; certified questions answered in part; cause
remanded.
CHAPMAN, J., concurs.
JUSTICE WELCH, dissenting:
I respectfully dissent. I would decline to address the questions as identified by the
circuit court pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), finding them to
be inapposite, and consider the propriety of the order that gave rise to this appeal. In doing
so, I would find that the circuit court erred in denying the defendants' motion for a summary
judgment and would reverse that order, granting a judgment in favor of the defendants.
Accordingly, I would find it unnecessary to address the issues pertaining to class
certification.
I present my own overview of the complaint and its allegations, as well as the
defendants' motion for a summary judgment, because I feel it is necessary for a full
understanding of my position. This is a class action seeking money damages for the purchase
price paid by the plaintiff for Baycol. According to the first amended complaint, the plaintiff
was prescribed, purchased, and used Baycol, a drug manufactured, marketed, promoted, and
sold by the defendants. The action is brought on behalf of all the individuals who have
20
purchased Baycol but excludes any of those individuals who have or had an action for
damages for personal injuries or death suffered as a result of using Baycol. Counts I and III
of the first amended complaint are brought pursuant to the Consumer Fraud and Deceptive
Business Practices Act (the Act) (815 ILCS 505/1 et seq. (West 2004)), and count II alleges
common law civil conspiracy to commit fraud.
The complaint alleges that the defendants knowingly, intentionally, and/or recklessly
concealed from government regulators, the medical community, and consumers known risks
and dangers associated with the use of Baycol, while at the same time exaggerating its
efficacy, with the intent to cause consumers to purchase Baycol. It alleges that the
defendants knew of serious risks and dangers associated with the use of Baycol and
knowingly and intentionally omitted from their promotional material and advertisements
these known risks and dangers. It alleges that in deciding whether to prescribe, recommend,
and purchase Baycol, the medical community, health care insurers, and consumers, including
the plaintiff, reasonably relied on these promotional materials and advertisements, which
omitted and concealed the known risks and dangers of Baycol. The complaint alleges that
had consumers and physicians, including the plaintiff and/or her physician, known of these
risks and dangers, they would not have prescribed or purchased Baycol.
Count I alleges that the mere act of offering Baycol for sale as a consumer product is
a representation that the product is reasonably safe for its intended purpose and that the
defendants knowingly and intentionally concealed the known risks and dangers of Baycol
with the intent that the plaintiff purchase Baycol. The complaint alleges that the plaintiff was
actually deceived and suffered actual damages in that she spent money to purchase the drug
which she would not have spent had she known of the risks and dangers associated therewith.
It alleges that by their actions, the defendants committed consumer fraud within the meaning
of the Act. Count I seeks damages in the amount of the purchase price of the drug.
21
Count III alleges that by virtue of the concealment of the risks and dangers associated
with Baycol, the defendants were able to charge prices that were far in excess of the fair
market value which Baycol would have had but for the concealment and that the defendants
knew that the prices charged for Baycol far exceeded its fair market value. The complaint
alleges that in so acting, the defendants committed one or more unfair acts or practices within
the meaning of the Act. Count III seeks damages "in an amount equal to the difference
between the price charged for Baycol and the fair market value which Baycol would have
had but for [the defendants'] omissions, suppressions, and/or concealments."
Count II alleges common law civil conspiracy based on the above violations of the
Act.
The defendants filed a motion for a summary judgment based primarily on the
deposition testimony of the plaintiff that prior to purchasing Baycol she had not seen, read,
or heard anything about the product and that she had relied solely on her physician's
judgment and not on any representation or misrepresentation of the defendants in purchasing
the product. The defendants' motion concluded that, accordingly, the plaintiff was not, and
could not have been, actually deceived by any representation, misrepresentation, or
concealment by the defendants and that any such deception could not have been the
proximate cause of the plaintiff's damages. Additionally, with respect to count III, the
defendants argued that the plaintiff's theory of damages, which the defendants call a "market
theory" of damages, has been rejected by the Illinois Supreme Court. Finally, with respect
to count II, the defendants argued that they are entitled to a summary judgment because civil
conspiracy is not an independent tort but must be premised on the commission of an
underlying independent wrong, in this case a violation of the Act.
The plaintiff responded that, even if the plaintiff had not seen or heard any
promotional materials or advertisements for Baycol, the mere act of offering the product for
22
sale is a representation to the plaintiff that it is safe for its intended use, that the defendants
knew that this was not true and concealed the true risks and dangers of Baycol, and that the
plaintiff relied on the defendants' concealment in purchasing the product. The plaintiff
concluded that, accordingly, the plaintiff was actually deceived and that this actual deception
was the proximate cause of her damages. Furthermore, the plaintiff argued that proximate
causation is established based on the concealment from medical providers of the true risks
and dangers of Baycol, which concealment was intended to, and did, reach the plaintiff.
Thus, the plaintiff argued, she was indirectly deceived by the defendants' conduct.
Preliminarily, I would decline to address the questions as identified by the circuit court
pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), finding them to be inapposite.
When in its discretion this court allows an appeal under Rule 308, it is not limited to
answering the questions that the trial court has identified. First of America Bank-Illinois,
N.A. v. Drum, 295 Ill. App. 3d 205, 211 (1998). Instead, this court may, pursuant to Supreme
Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), enter any judgment and make any order that
ought to have been given or made, and it can make any other and further orders and grant any
relief that the case may require. Drum, 295 Ill. App. 3d at 211; see also Schrock v.
Shoemaker, 159 Ill. 2d 533, 537 (1994). The purpose of an appeal pursuant to Supreme
Court Rule 308(a) is to "materially advance the ultimate termination of the litigation." 155
Ill. 2d R. 308(a). In this particular case, I do not believe that answering the questions
certified by the circuit court will serve to materially advance the ultimate termination of this
litigation. Instead, I believe that the interests of judicial economy and the need to reach an
equitable result oblige this court to go beyond the questions of law presented and consider
the propriety of the order that gave rise to the appeal. See Bright v. Dicke, 166 Ill. 2d 204,
208 (1995). In any event, even if I were to answer the certified questions, given the facts as
presented by this case, I would answer them in the negative for the reasons which follow and,
23
because the questions are controlling, conclude that the circuit court erred in denying the
defendants' motion for a summary judgment.
A summary judgment is proper where the pleadings, affidavits, depositions,
admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant,
reveal that there is no genuine issue regarding any material fact and that the movant is
entitled to a judgment as a matter of law. Zekman v. Direct American Marketers, Inc., 182
Ill. 2d 359, 374 (1998). This court's review of an order denying a summary judgment is de
novo. Zekman, 182 Ill. 2d at 374.
A summary judgment in favor of a defendant is proper when a plaintiff cannot
establish an essential element of her cause of action. Volpe v. IKO Industries, Ltd., 327 Ill.
App. 3d 567, 577-78 (2002). Although the plaintiff need not prove her case at the summary
judgment stage, she must come forward with evidence that establishes a genuine issue of
material fact. Wasik v. Allstate Insurance Co., 351 Ill. App. 3d 260, 264 (2004).
Section 10a(a) of the Act (815 ILCS 505/10a(a) (West 2004)) expressly authorizes
private causes of action for violations of the Act. It provides, "Any person who suffers actual
damage as a result of a violation of [the] Act committed by any other person may bring an
action against such person." 815 ILCS 505/10a(a) (West 2004). It is now well-settled that
this section requires proof both that "actual damage" had been incurred and that the damage
was proximately caused by the violation of the Act. See Oliveira v. Amoco Oil Co., 201 Ill.
2d 134, 149 (2002); Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 72 (2007). A
summary judgment for the defendants was proper in the case at bar because the plaintiff
cannot establish these essential elements of her cause of action.
I begin with count I and the element of proximate cause. A successful claim by a
private individual suing under section 10a of the Act (815 ILCS 5/10a(a) (West 2004)) must
demonstrate that the fraud complained of proximately caused the plaintiff's injury. Zekman
24
v. Direct American Marketers, Inc., 182 Ill. 2d 359, 373 (1998).
In Zekman, a case remarkably similar to the case at bar, the plaintiff filed a class
action against AT&T and alleged violations of the Act, after he had received a series of
mailings from Direct American Marketers, Inc., indicating that he had won a prize. While
it was possible to respond by mail, the mailings urged the recipient to telephone a "900"
number to claim the prize. Of course, by calling the "900" number the recipient incurred
charges. These charges, as well as the option to respond by mail, were stated in the mailings,
although in less conspicuous type. The plaintiff made numerous such calls to "900" numbers
but won only nominal prizes of discount coupons. AT&T billed the plaintiff for the
telephone charges and retained a percentage of the charge for itself; the majority of the
charge went to the direct marketer.
In his deposition, the plaintiff admitted that he knew prior to placing the "900" calls
both that he could have responded by mail and that he would be charged for the calls. Upon
placing the calls, the plaintiff was further informed that he would be charged and could hang
up immediately without being charged. The plaintiff made at least 24 such telephone calls.
The plaintiff's com plaint alleged that AT&T obtained money by means of a deceptive
practice under the Act.
In its motion for a summary judgment, AT&T argued that the plaintiff's deposition
testimony demonstrated that the plaintiff had not been actually deceived by the mailings or
the telephone bills and that the plaintiff therefore could not establish that any of AT& T's
alleged misconduct had caused him injury. AT&T argued that the plaintiff's deposition
testimony established that the conduct complained of was not the proximate cause of any
harm, as the Act requires.
In affirming the summary judgment for AT&T, the supreme court pointed out that
section 10a(a) of the Act, which governs private causes of action under the Act, mandates
25
that an individual's damages be " 'a result of a violation of [the] Act.' " Zekman, 182 Ill. 2d
at 373 (quoting 815 ILCS 5/10a(a) (West 1992)). Thus, the Act requires that a successful
claim by a private individual suing under the Act demonstrate that the fraud complained of
proximately caused the plaintiff's injury. Zekman, 182 Ill. 2d at 373. Because the plaintiff's
deposition testimony established that he had not been actually deceived by AT&T's conduct
and that the conduct complained of was not the proximate cause of his injury, AT&T was
entitled to a summary judgment on the claim. Based on the plaintiff's deposition testimony,
there was no genuine issue of material fact regarding whether the allegedly deceptive nature
of the mailings received by the plaintiff caused him to incur the charges for the "900" number
calls. Zekman, 182 Ill. 2d at 375. Rather, it appeared that the plaintiff understood the
requirements and costs of the program. Zekman, 182 Ill. 2d at 375. Based on the testimony
by the plaintiff at his deposition, there was no genuine issue of material fact regarding
whether the alleged violations of the Act by AT& T proximately caused the plaintiff's
damage, for the plaintiff's testimony demonstrated that he had not been deceived by AT& T's
actions. Zekman, 182 Ill. 2d at 376.
Similarly, the plaintiff's deposition testimony in the case at bar establishes that the
conduct complained of was not the proximate cause of her injury. The plaintiff's deposition
testimony precludes her from establishing that the alleged misconduct of the defendants
proximately caused her damages. The plaintiff testified unequivocally in a deposition that
in purchasing Baycol she relied exclusively on her physician's advice and that prior to
purchasing it she had never heard, read, or seen anything about the product and knew nothing
about it. She had never heard, read, or seen any information regarding the effectiveness of
Baycol or the presence or absence of any risks or dangers associated with the medication.
She was not deceived by the defendants.
In Barbara's Sales, Inc., 227 Ill. 2d at 76, the supreme court held that certain
26
statements made by the defendant/seller were not actionable because no plaintiff was aware
of the statements. The court pointed out that under Oliveira v. Amoco Oil Co., 201 Ill. 2d
134 (2002), and its progeny (Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.
2d 100 (2005); Shannon v. Boise Cascade Corp., 208 Ill. 2d 517 (2004); Zekman v. Direct
American Marketers, Inc., 182 Ill. 2d 359 (1998)), plaintiffs must prove that each and every
consumer who seeks redress actually saw and was deceived by the statements in question.
Based on the testimony of the plaintiff at her deposition, I do not believe that there
remains a genuine issue of material fact regarding whether the alleged violations of the Act
by the defendants proximately caused her damage, for the plaintiff's testimony demonstrates
that she was not deceived by the defendants' actions.
Nevertheless, count I of the plaintiff's complaint alleges that regardless of whether she
ever saw, heard, or read any promotional materials or advertisements about Baycol, the
defendants' mere act of selling the drug constitutes a representation that it is safe for its
intended purpose and that the plaintiff relied on this false representation in purchasing
Baycol. I point out initially that the allegation that the mere act of selling the drug constitutes
a representation that it is safe for its intended purpose is a legal conclusion and not an
allegation of fact. Accordingly, it need not be accepted as true. Kubik v. CNA Financial
Corp., 96 Ill. App. 3d 715, 719 (1981). In any event, most, if not all, prescription
medications carry some risks and dangers. This is why they are available by prescription
only. The mere act of selling a prescription medication is not a representation that it is safe
for its intended use. Indeed, it may not be safe, but its risks and dangers may be outweighed
by the risks and dangers of the medical condition that it is prescribed to treat. The plaintiff
simply cannot establish that she was actually deceived by the defendants' conduct and that
this deception was the proximate cause of her damages. Accordingly, I believe that the
circuit court erred in denying the defendants' motion for a summary judgment on count I.
27
The defendants are entitled to a summary judgment on count I of the plaintiff's
complaint for yet another reason: the plaintiff cannot establish that she suffered "actual
damage" as a result of her purchase of Baycol. In order to recover under the Act, a plaintiff
must establish that she suffered "actual damage as a result of a violation of [the] Act."
(Emphasis added.) 815 ILCS 505/10a(a) (West 2004); Oliveira, 201 Ill. 2d at 149.
In Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100 (2005), a
plaintiff's cause of action under the Act failed in part because he was unable to prove actual
damage. That case involved a claim that the defendant had violated the Act by failing to
disclose its policy of substituting nonoriginal equipment manufacturer parts for original
manufacturer parts when repairing insured vehicles. The supreme court held that the claim
of the named plaintiff DeFrank must fail because he failed to allege or prove actual damages.
DeFrank testified that, after repairs had been made under his insurance contract with State
Farm Mutual Automobile Insurance Company in which nonoriginal equipment manufacturer
parts were used, he sold his vehicle in an arm's-length transaction for what was admittedly
the same price he would have received had the vehicle had original equipment manufacturer
parts on it. It had made no difference in the value of the vehicle that nonoriginal equipment
manufacturer parts had been used in the repair. Accordingly, the plaintiff DeFrank had not
suffered actual damage and could not prevail on his claim under the Act.
Similarly, in the case at bar the plaintiff cannot establish that she suffered actual
damage as a result of her purchase of Baycol, even if that purchase was in reliance on
deceptive conduct by the defendants. The plaintiff purchased and paid for a cholesterol-
lowering drug. The complaint does not allege that the plaintiff suffered any personal injury
as a result of using the drug, nor does she allege that the drug did not work to lower her
cholesterol. If, in fact, the drug lowered the plaintiff's cholesterol without causing any
adverse side effects or personal injuries, then the plaintiff got exactly what she paid for: an
28
effective, safe, cholesterol-lowering drug. I note that the plaintiff has asserted her
physician/patient privilege (735 ILCS 5/8-802 (West 2004)) with respect to her own medical
records. Accordingly, she is unable to prove the essential element of actual damage as a
result of her purchase of Baycol, and the defendants were entitled to a summary judgment
on count I of the plaintiff's complaint.
I believe that the defendants were also entitled to a summary judgment on count III
of the plaintiff's complaint, which also alleged a violation of the Act. Dispositive on this
count is the supreme court's decision in Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 140
(2002). As is Zekman v Direct American Marketers, Inc., 182 Ill. 2d 359 (1998), Oliveira
is remarkably similar to the case at bar. In Oliveira, the named plaintiff in a class action
against Amoco Oil Company (Amoco) complained that Amoco had falsely advertised its
premium gasoline as superior to other grades of gasoline, thereby violating the Act. The
plaintiff alleged in his complaint that the false advertisements proximately caused him actual
damage. The complaint did not allege, however, that the advertisements induced the plaintiff
to buy the gasoline or that he was deceived by the ads, nor did it allege that the plaintiff had
seen, heard, or read any of the allegedly deceptive advertisements. Instead, the plaintiff
alleged that he was damaged because the ads created an artificially inflated price for the
gasoline that he purchased. The complaint alleged that these false advertisements increased
consumer demand for premium gasoline, allowing Amoco to charge an inflated price, thereby
causing actual damage to all the purchasers of the gasoline, regardless of whether they were
aware of the ads at the time of purchase. The plaintiff advanced what the supreme court
referred to as a "market theory" of causation: the deceptive ads increased demand, which
drove up the price; all the purchasers of the premium gasoline paid an increased price
because of the allegedly deceptive ads, regardless of whether they had seen or relied upon
the advertisement at issue. As in the case at bar, the remedy sought was the difference
29
between the artificially inflated price and the price that would have been paid absent the
deception.
In rejecting the plaintiff's theory of causation, the Illinois Supreme Court reaffirmed
that in order to prevail on a claim brought under section 10a(a) of the Act, a private
individual must plead and prove actual damage proximately caused by the deception.
Oliveira, 201 Ill. 2d at 149. The court concluded that its decision in Zekman controlled. In
Zekman, the plaintiff's claim failed as a matter of law because he was not actually deceived.
Oliveira, 201 Ill. 2d at 154. Similarly, in Oliveira, the supreme court found that the plaintiff's
complaint failed to allege that he was in any manner actually deceived by Amoco's
advertisements:
"Plaintiff does not allege that he was, in any manner, deceived by defendant's
advertisements. Plaintiff does not allege that he received anything other than what he
expected to receive when he purchased defendant's gasoline, i.e., a certain amount of
gasoline, with a certain octane level, for the price listed on the pump. Indeed, plaintiff
could not allege that defendant's advertisements deceived him or misled him as to
what he was receiving when he made his purchase. Because plaintiff does not allege
that he saw, heard[,] or read any of defendant's ads, plaintiff cannot allege that he
believed that he was buying gasoline which benefitted the environment or improved
engine performance." Oliveira, 201 Ill. 2d at 154-55.
Similarly, in the case at bar the plaintiff cannot establish that she was, in any manner,
deceived by the defendants' conduct. Nor can she establish that she received anything other
than what she expected to receive when she purchased the defendants' medication, a
medication which was prescribed by her physician and which might very well have
effectively worked to lower the plaintiff's cholesterol. The plaintiff admitted that she never
saw, heard, or read any information about Baycol prior to purchasing it and that she relied
30
entirely on the advice of her physician in purchasing it. Accordingly, the plaintiff cannot
establish that she suffered actual damage proximately caused by the defendants' alleged
deception.
The supreme court again rejected the viability of a "market theory" of causation in
Barbara's Sales, Inc., 227 Ill. 2d at 76.
A similar decision was reached in Shannon v. Boise Cascade Corp., 208 Ill. 2d 517
(2004). In that case the plaintiffs filed a class action under the Act against the manufacturer
of composite siding and alleged that it had deceptively advertised its product. Admissions
in all the plaintiffs' depositions established that none had received any representations
regarding the product from the defendant. The complaint did not allege that any named
builder, architect, or engineer had received any product literature or that any plaintiff
communicated with any builder, architect, or engineer who had received product literature.
The complaint set forth a "market theory" of causation similar to that put forth in Oliveira.
The circuit court granted the defendant a summary judgment on the basis that the plaintiffs
had not been aware of the defendant's advertising and that the claimed damages were not
proximately caused by the alleged deceptive advertising.
On appeal, the supreme court affirmed the summary judgment in favor of the
defendant. The plaintiffs' complaint did not allege that any deceptive advertising had been
received by any plaintiff or by any builder, architect, engineer, or other like person somehow
connected with a plaintiff. Shannon, 208 Ill. 2d at 525. The plaintiffs' market theory of
causation had been rejected in Oliveira and was similarly rejected here. The advertising had
not deceived the plaintiffs and, thus, could not have proximately caused the claimed
damages. Shannon, 208 Ill. 2d at 525.
Of particular relevance to the case at bar is the supreme court's statement in Shannon,
208 Ill. 2d at 525-26, that although proof of actual deception of a plaintiff is required, that
31
is not to say that the deception must always be direct between the defendant and the plaintiff
to satisfy the requirement of proximate cause under the Act. The court stated that if the
product literature had in fact deceived a particular builder, architect, or contractor, resulting
in the installation of defective siding on a home, the damage could arguably have occurred
as a result of the indirect deception, as required by the Act. In those circumstances, the
purchaser, who might have no independent knowledge of the qualities or expected
performance standards of siding, is deceived because of the deception of the builder,
architect, or contractor, who reasonably should have had correct knowledge. However, in
Shannon, the plaintiffs had not pled any facts to support that theory.
Similarly, in the case at bar, the plaintiff has not pled sufficient facts to support a
theory that her own physician, who prescribed Baycol for her, had seen, read, or heard any
promotional material or advertisements or received any product literature from the
defendants and in fact been deceived. Instead, the complaint makes general allegations that
the defendants advertised Baycol in publications which physicians commonly read and that
those advertisements were misleading or false. The complaint does not allege that the
plaintiff's physician received any of those publications, saw the false or misleading
advertisements, and was deceived thereby, nor did the plaintiff present any evidence to
support this theory in opposition to the motion for a summary judgment. Indeed, it is
possible that the plaintiff's physician knew of the risks and dangers associated with the use
of Baycol but determined that the risks and dangers associated with the plaintiff's elevated
cholesterol outweighed the risks and dangers associated with the drug. Accordingly, the
plaintiff can rely on this theory no more than could the plaintiffs in Shannon. I believe that
the circuit court erred in denying the defendants' motion for a summary judgment on count
III.
Finally, count II sounds in common law civil conspiracy, which is not an independent
32
tort but rises or falls with the plaintiff's claims under the Act. See Indeck North American
Power Fund, L.P. v. Norweb PLC, 316 Ill. App. 3d 416, 432 (2000). Accordingly, a
judgment in the defendants' favor on counts I and III must also result in a judgment in the
defendants' favor on count II.
Having concluded that the trial court erred in denying the defendants' motion for a
summary judgment and having concluded that the court's order must be reversed, I would
have found it unnecessary to address the issues relating to the class certification.
33
NO. 5-06-0077
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
TERESA DE BOUSE, Individually and On ) Appeal from the
Behalf of Others Similarly Situated, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellee, )
)
v. ) No. 04-L-53
)
BAYER AG, BAYER CORPORATION, )
SMITHKLINE BEECHAM CORPORATION, )
d/b/a GLAXOSMITHKLINE, )
GLAXOSMITHKLINE PLC, MARCY GRIM, )
MICHAEL HARVEY DAVIDSON, M .D., )
and MICHAEL LEVER, ) Honorable
) Michael J. O'Malley,
Defendants-Appellants. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: October 9, 2008
___________________________________________________________________________________
Justices: Honorable James K. Donovan, J.
Honorable Melissa A. Chapman, J.,
Concurs
Honorable Thomas M. Welch, J.,
Dissents
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Attorneys Katherine M . Fowler, Terry Lueckenhoff, One S. M emorial Drive, 12th Floor,
for St. Louis, MO 63101; Stephen C. Carlson, J. Randal Wexler, Charles K. Schafer,
Appellants Sidley Austin LLP, One South Dearborn Street, Chicago, IL 60603; Andrew
Goldman, Phillip Beck, Bartlit Beck Herman Palenchar & Scott, 54 West Hubbard,
Suite 300, Chicago, IL 60610 (attorneys for Bayer AG, Bayer Corp., Marcy Grim,
Michael Lever)
John E. Galvin, Jonathan H. Garside, Fox Galvin, LLC, One Memorial Drive, Eighth
Floor, St. Louis, MO 63102 (attorneys for SmithKline Beecham Corp., d/b/a
GlaxoSmithKline, GlaxoSmithKline PLC)
___________________________________________________________________________________
Attorneys John J. Driscoll, Brown & Crouppen, P.C., 720 Olive Street, Suite 1800,
for St. Louis, MO 63101; Christopher Cueto, Law Office of Christopher Cueto, P.C.,
Appellee 7110 West Main Street, Belleville, IL 62223
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