De Bouse v. Bayer

NO. 5-06-0077
N O T IC E

Decision filed 05/09/07. 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 all others

similarly situated, alleging that Bayer AG, Bayer Corp., SmithKline Beecham Corp., doing

business as GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey

Davidson, M.D., and Michael Lever (the defendants) committed common law fraud and

violated the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud

Act) (815 ILCS 505/1 et seq. (West 2004)). The St. Clair County circuit court granted the

plaintiff's motion to certify the cause as a class action. Subsequently, 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. 308(a)). The

defendants filed a petition for leave to appeal the class certification order pursuant to

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Supreme Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)), and leave was granted. The

defendants filed a separate application, petitioning this court to consider the questions that

had been certified by the trial court, and that application was granted. The appeals were

consolidated under cause No. 5-06-0077.

A. Jurisdiction & 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 then moved to dismiss the appeal

for a lack of appellate jurisdiction. Initially, this court denied the plaintiff's motion to dismiss

and granted the defendants' petition for leave to appeal. After reviewing the record, we

determined that it was necessary to revisit the issue of jurisdiction. We have reconsidered

the issue of jurisdiction in light of the record, and we have determined 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 circuit court 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 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

parties appeared by counsel on that date. The parties also appeared for a status conference

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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 notice of the entry

of the order granting class certification, that the circuit court clerk failed to serve a copy of

the order on all parties and failed to note any service in the file as required under 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 they first became aware that the order

had been entered 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 had 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

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 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

Ill. 2d R. 306(c)) requires the petition to be filed in the appellate court within 30 days after

the entry of the order granting or denying 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 time. However, 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

4
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

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 judgment dated February 27,

1991, and reentered the same order, effective April 29, 1991. The appellate court upheld

jurisdiction and considered the merits of the appeal. The Illinois Supreme Court reversed,

finding that the trial court lacked authority to vacate and reenter its 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 had clearly stated 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. Granite City Lodge No. 272, Loyal Order of the Moose,

141 Ill. 2d at 127, 565 N.E.2d at 931; Fiat-Allis, Inc., 158 Ill. 2d at 151, 632 N.E.2d at 1013.

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;

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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. 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,

2006. In our view, the decision in Fiat-Allis, Inc. is controlling under the facts of the case,

and thus, the trial court lacked 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 on 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 compliance with the rule in the court file. 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

trial 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.

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 Furthermore, the record belies the defendants' assertions that they detrimentally relied

on local rule 2.06 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 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 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

7
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 had relied on the trial court's standard operating procedure of mailing

a copy of the final judgment to the parties and that the court 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 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 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 was 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 the judgment, to correct a clerical error or 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

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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 trial court judge specifically stated that it 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

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 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 class certification was a part of the

court file and available for public inspection. It was also noted in a docket entry. There is

no provision for extending the time for filing a petition for interlocutory appeal other than

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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.

B. The Certified Questions

The defendants have devoted a considerable portion of their arguments on appeal to

the circuit court's decision to deny the motion for a summary judgment. We decline to

specifically address the issues raised in the summary judgment motion 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 issues certified by the trial court. Third, it appears that there are material issues of fact

raised in the summary judgment motion about which discovery has not been had. Thus, any

review of the underlying order is premature and will not serve the interests of judicial

economy.

The trial court concluded that the resolution of the following questions of law could

materially advance the disposition of the litigation, and the court certified them for appellate

review 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

consumer.

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 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 questions certified for review seem to be directed

toward further defining these elements in a case where the alleged deception is indirect and

covert.

The issue of indirect deception was considered by the Illinois Supreme Court in

Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 805 N.E.2d 213 (2004). In Shannon, the

supreme court stated that proof of the actual deception of a plaintiff is required to establish

the proximate cause requirement, but 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

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to her detriment. Shannon, 208 Ill. 2d at 526, 805 N.E.2d at 218; St. Joseph 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 situation where

a purchaser who has no independent knowledge of the qualities or expected performance of

a siding may be deceived because the manufacturer deceived a person, such as a builder,

architect, or contractor, who reasonably should have correct knowledge. Shannon, 208 Ill.

2d at 526, 805 N.E.2d at 218.

The Illinois Supreme Court has 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 the 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 this case, the deception alleged in the complaint is concealment by silence1 . This

type of deception falls within the coverage and the purpose of the Consumer Fraud Act.

Pappas v. Pella Corp., 363 Ill. App. 3d 795, 844 N.E.2d 995 (2006). The defendants submit

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., that the defendant intended 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

be helpful in regard to our consideration of the certified questions.

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that the 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

Automobile 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 the cases relied upon by the defendants, the alleged deceptions arise from

affirmative representations, such as specific promises or a deceptive advertisement. In those

types of cases, the supreme court has said that in order to establish proximate cause, the

plaintiff must allege and show that he was actually deceived by the misrepresentation. Avery,

216 Ill. 2d at 200, 835 N.E.2d at 861; Zekman, 182 Ill. 2d at 375-76, 695 N.E.2d at 861-62.

There is another line of cases involving concealment by silence. In those types of

cases, the courts have found it sufficient where there was proof that the defendant's

deception, whether made directly or indirectly, was committed with the intent that it

influence the plaintiff's action and that if the plaintiff had known of the concealed

information, she would not have purchased the product. Connick, 174 Ill. 2d at 504-05, 675

N.E.2d at 595; Pappas, 363 Ill. App. 3d at 804-06, 844 N.E.2d at 1003-04.

The contrasts in the aforementioned cases demonstrate that for purposes of satisfying

the elements of a cause of action under the Consumer Fraud Act, there is a very fine but

significant distinction between cases involving an affirmative deception and a deception by

concealment. As to the case at bar, the plaintiff's action falls within the latter category.

Following the reasoning and bases underlying the decisions in Shannon and Connick,

we answer the first and third questions in the affirmative. The second question, as drafted,

appears to be a mixed question of fact and law and, therefore, not a proper question under

Supreme Court Rule 308. Accordingly, we decline to address it.

C. Summary and Conclusion

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 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 decline 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.

PRESIDING JUSTICE WELCH, dissenting:

I respectfully dissent. I believe the circuit court erred in denying the defendants'

motion for a summary judgment, and I 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.

An overview of the complaint and its allegations, as well as the defendants' motion

for a summary judgment, 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 individuals who have 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

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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. The plaintiff 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. The complaint states 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.

The plaintiff concludes 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.

Count III alleges that by virtue of the concealment of the risks and dangers associated

15
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 plaintiff

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. Accordingly, the plaintiff was not, and could not have been, actually deceived

by any representation, misrepresentation, or concealment by the defendants, and 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 did not see or hear any promotional

materials or advertisements for Baycol, the mere act of offering the product for 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

16
relied on the defendants' concealment when purchasing the product. Accordingly, the

plaintiff argued, she was actually deceived and this actual deception was the proximate cause

of her damages. Furthermore, the plaintiff argued that proximate causation is established

based on 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). In this particular case, I believe that the interests of

judicial economy and the need to reach an equitable result oblige this court to go beyond the

question 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, I would answer them in the negative and, 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

17
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" was 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). A summary judgment for the defendant 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

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, each mailing urged the recipient to telephone a "900"

number to claim the prize. Of course, by calling the "900" number the recipient incurred a

charge. This charge and the option to respond by mail were stated in the mailing, although

18
usually in less conspicuous type. The plaintiff made numerous calls to the "900" numbers

but won only nominal prizes of discount coupons. AT&T billed the plaintiff for the

telephone charges and retained a percentage of each charge for itself; most of each charge

went to the direct marketer.

In his deposition, the plaintiff admitted that he knew, prior to placing the calls to the

"900" numbers, 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 complaint 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

that an individual's damages be " 'a result of a violation of [the] Act.' " Zekman, 182 Ill. 2d

at 373 (quoting 815 ILCS 505/10a(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,

19
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 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. 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

20
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. See 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.

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 damage.

DeFrank testified that, subsequent to repairs 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 arms-length transaction for what was admittedly

21
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

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

22
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 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 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 recovery of the

difference 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

23
 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

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.

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 of 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 had

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.

24
 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

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

25
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 the plaintiffs in Shannon could. 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

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 found that the trial court erred in denying the defendants' motion for a

summary judgment and having reversed that order, I would have found it unnecessary to

address the issues relating to class certification.

26
 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: May 9, 2007
___________________________________________________________________________________

Justices: Honorable James K. Donovan, J.,

Honorable Melissa A. Chapman, J.,
Concurs

Honorable Thomas M. Welch, P.J.,
Dissents
___________________________________________________________________________________

Attorneys Jeffrey Baron, Blackwell Sanders Peper Martin, LLP, 720 Olive Street, Suite 2400,
for St. Louis, M O 63101; Stephen C. Carlson, J. Randal Wexler, Charles K. Schafer,
Appellants Sidley Austin LLP, One South Dearborn Street, Chicago, IL 60603; Andy 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 (attorney for SmithKline Beecham Corp., d/b/a
GlaxoSmithKline, GlaxoSmithKline PLC)
___________________________________________________________________________________

Attorney John J. Driscoll, Brown & Crouppen, P.C., 720 Olive Street, Suite 1800,
for St. Louis, MO 63101
Appellee
___________________________________________________________________________________