Jensen v. Bayer AG

SIXTH DIVISION
February 2, 2007

No. 1-04-3879

JAMES W. JENSEN, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
)
)
)
v. ) No. 01 CH 13319
)
)
BAYER AG, a German corporation, ) Honorable
(BAYER CORPORATION, an Indiana ) David R. Donnersberger,
Corporation, Defendant Appellee) ) Judge Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, James Jensen, purchased and used Baycol, which

his doctor prescribed to him to lower his cholesterol.

Thereafter, defendant Bayer Corporation, manufacturer of Baycol,

discontinued the marketing and distribution of Baycol.1 The

plaintiff then brought an action against defendant on behalf of

himself and later filed an amended motion for class

certification. Plaintiff, in his motion for class certification,

asserted claims sounding in consumer fraud, breach of implied

warranty, and medical monitoring, regarding the manufacturing,

marketing and sale of Baycol. The trial court denied plaintiff's

motion for class certification, granted defendant's motion for

1
Defendant Bayer AG is not a party to this appeal.
No. 1-04-3879

summary judgment on plaintiff's individual claims, and denied

plaintiff's motion for reconsideration for the same. For the

reasons that follow, we affirm.

I. Factual Background

On August 8, 2001, defendant issued a statement announcing

the removal of Baycol from the market, which stated, in relevant

part, the following:

"Rhabdomyolysis is a serious, potentially fatal,

adverse effect of all statin drugs, including Baycol.

They can occur with statin monotherapy, although the

risk appears to be increased significantly by

concomitant use of gemfibrozil (Lopid).

Our ongoing scrutiny of post marketing reports of

rhabdomyolysis, including fatalities, has revealed an

increased reporting rate of rhabdomyolysis with Baycol

relative to other statins, especially when gemfibrozil

is co-prescribed. These data also suggest an increased

reporting rate of rhabdomyolysis at the 0.8 mg dose of

Baycol alone.

***

Effective immediately, Bayer has discontinued the

marketing and distribution of all dosage strengths of

Baycol. Patients who are currently taking Baycol

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No. 1-04-3879

should have their Baycol discontinued and be switched

to an alternative therapy." (Emphasis in original.)

Plaintiff, who consumed Baycol to lower his cholesterol,

filed a complaint on behalf of himself against defendants on

August 15, 2001. Thereafter, plaintiff filed an amended motion

for class certification. Plaintiff alleged, inter alia, that:

(1) defendant violated section 2 of the Consumer Fraud and

Deceptive Practices Act (Act)(815 ILCS 505/2 (West 2002)) by

"misrepresenting, concealing and/or omitting" information

concerning the adverse health effects of Baycol; (2) defendant

breached an implied warranty to plaintiff that Baycol was fit for

its ordinary purpose, "that being to provide safe and effective

treatment for high cholesterol"; and (3) defendant's product

subjected plaintiff to unnecessary future health risks such as

rhabdomyolysis and that such health risks required medical

monitoring.

On August 29, 2003, plaintiff gave his deposition testimony.

Plaintiff stated that after he suffered a heart attack, his

doctor prescribed Baycol to plaintiff to lower his cholesterol.

He took this medication between May 2000 and August 2001.

Plaintiff stated that he cannot recall if he read any literature

concerning Baycol. He never read any articles about Baycol,

either on the Internet or in any newspapers. Nor did he read the

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No. 1-04-3879

labeling or package insert for Baycol. Plaintiff testified that

he did not rely on any documents when making his decision to take

Baycol. Rather, he just “trusted his doctor.”

Plaintiff stated that at the time he took Baycol, he worked

as a mechanic in “hanger maintenance.” In this position,

plaintiff often climbed ladders, lifted items, and “maintained”

his building. Plaintiff stated that he did not seek compensation

for lost wages. He stated that the pain he suffered from Baycol

may have caused him to be less productive at work, but it did not

cause him to miss work. Specifically, plaintiff stated that he

suffered pain in his “calves and legs.” This pain went away,

according to plaintiff, when his doctor switched his prescription

to Zocor and defendant simultaneously stopped taking Baycol.

Plaintiff testified that his wife, not his doctor, told him to

stop taking Baycol. He further testified that no doctors ever

informed him that his leg pains were caused by Baycol. He stated

that he never asked a doctor whether his leg pains were caused by

Baycol because he “drew this conclusion himself.” Plaintiff also

never asked his doctor why Baycol had been withdrawn from the

market. Plaintiff further testified that he is not aware of any

increased risk to his future health from his prior use of Baycol,

and that he has not asked his doctors about this matter. He also

testified that he has no reason to believe that his future health

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No. 1-04-3879

is at risk from his consumption of Baycol.

Only two deposition testimonies from medical professionals

appear in the record, Dr. Robert Duncan and Dr. Jogi Nareddy.

These two physicians, called by defendant, treated plaintiff

after he sustained a heart attack. Dr. Duncan stated that

plaintiff informed him at plaintiff’s initial visit that, because

of a prior heart attack, plaintiff was taking a regimen of

aspirin, Altace, and Zocor. Dr. Duncan further stated that one

of the side effects of Zocor is an increased risk of

rhabdomyolysis, which, according to Dr. Duncan, is a "breakdown

of muscle, releasing myoglobin into the bloodstream in its most

severe cases." He further stated that: "Myoglobin is toxic to

certain organs, in particular the kidneys. In severe cases of

rhabdomyolysis, you can undergo renal failure, [and] require

dialysis. In less severe cases, you may have myalgia or muscle

aches associated with it." Dr. Duncan further stated that Zocor

was a member of the statin class of drugs. All statin drugs

carry the risk of rhabdomyolysis according to Dr. Duncan. He

nevertheless prescribes statin drugs because, in his view, "[t]he

benefits of lowering cholesterol way outweigh the risks of a

very, very rare event taking place, which would be rhabdomyolysis

or other aches and pains, which people can normally tolerate."

Dr. Duncan stated that though he was not aware that plaintiff

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No. 1-04-3879

formerly took Baycol while under another physician’s care, this

fact did not alter or change the way he treated plaintiff. He

stated that Baycol was a member of the statin class of drugs,

which many of his patients were on prior to its removal from the

market. He stated that he would have prescribed a nonstatin drug

to plaintiff if his liver function tests were not within normal

range. This was not the case, however. Dr. Duncan also stated

that myopathy and rhabdomyolysis are risks that are manifested

when a patient takes medication from the statin class. These

conditions, however, go away when treatment is discontinued,

according to Dr. Duncan.

Dr Nareddy testified that Dr. Duncan referred plaintiff to

him for a “cardiac follow-up.” Dr. Nareddy stated that Dr.

Duncan is a board-certified internist. Dr. Nareddy stated that

he is a board-certified internist as well as a board-certified

cardiologist. Dr. Nareddy reiterated that all statins carry the

risk of myopathy and rhabdomyolysis and that despite these risks,

he prescribes “a lot of them.” Dr. Nareddy stated that he had

determined from plaintiff’s old medical records that he had

previously had a heart attack. In addition, the records

indicated that plaintiff was on Baycol and had been “switched” to

Zocol. This fact, however, did not alter Dr. Nareddy’s treatment

of plaintiff. Nor did it necessitate any sort of “special

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No. 1-04-3879

testing or monitoring” of plaintiff. Dr. Nareddy stated that he

performed liver tests on plaintiff because of his Zocor

treatment. These tests, however, were not performed because of

his prior Baycol treatment. Dr. Nareddy further testified that

plaintiff never complained to him of any side-effects from his

prior use of Baycol, particularly leg pains.

On December 15, 2003, the trial court entered a written

order denying plaintiff's motion for class certification. In so

doing, the court reasoned that common questions of law and fact

did not predominate over individual issues. For instance, in

regard to the class action for consumer fraud, the court noted

that the state statutes for class actions for consumer fraud have

vastly different requirements for the elements of proof, i.e.,

"the burden of persuasion required to prove scienter differs from

state to state." Furthermore, the notice requirements for a

breach of warranty claim also differed significantly from state

to state, according to the trial court's order. In regard to the

class action claim for medical monitoring, the court concluded

that the development of medical monitoring was too "embryonic"

for any commonality to be found.

The court also found no factual commonality. For instance,

the consumer fraud count, according to the court, would involve

individual factual questions regarding reliance on defendant's

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No. 1-04-3879

alleged concealment of Baycol's safety. In regard to the medical

monitoring claim, the court stated that "[e]ach class members'

individual medical condition would have to be monitored based on

that class members’ prior medical condition." In regard to the

breach of implied warranty claims, the court noted that "the

question whether Baycol lowered a class member's cholesterol or

harmed him would be a question individual to each class member."

On January 7, 2004, defendant filed a motion for summary

judgment concerning plaintiff’s individual claims, which the

trial court granted as well. In granting defendant's motion, the

court reasoned that plaintiff's implied warranty claim lacked

merit because plaintiff failed to prove that he had privity with

defendant and that he provided actual notice of breach to

defendant. Concerning plaintiff's medical monitoring claim, the

court stated: "As there is no evidence that [plaintiff] is in

need of future medical monitoring due to his past use of Baycol,

Bayer is entitled to summary judgement ***. [Plaintiff's]

speculation does not constitute evidence." Regarding plaintiff's

consumer fraud claim, the court stated that defendant was

entitled to summary judgment because plaintiff failed to

demonstrate that he was actually deceived by any deceptive

practice by defendant.

Plaintiff then filed a motion for reconsideration of the

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No. 1-04-3879

trial court's dismissal of plaintiff’s individual claims, which

the trial court stayed on September 14, 2004. In the hearing

attendant to the order the court remarked:

"Plaintiff argues that [the trial court] denied

certification of a nationwide class and that a class of

Illinois residents could still be named.

However, plaintiff has not presented anything to

this Court showing that the certification of such a

class would be more likely [than a national class].

So it is still an open issue. *** So if you

chose to do that, you should present something to me."

The court's written order staying plaintiff's motion

further stated: "Plaintiff is given 21 days to October 6, 2004,

to file a motion for leave to file an amended complaint or other

pleading, adding a plaintiff class representative for an Illinois

class only."

Plaintiff subsequently filed his motion to file an amended

complaint, arguing that a statewide class would be more likely

certified than a nationwide class because "applying Illinois law

to the putative Illinois class would resolve the alleged

manageability concerns." The motion did not address the

requirement in the trial court's order that the motion name a new

Illinois class representative.

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No. 1-04-3879

Denying defendant’s motion for reconsideration, the court

stated, in relevant part:

"Plaintiff argues that this court should allow a substitute

plaintiff. *** Plaintiff, however, has not presented

anything to this court showing that the certification of

such a class would be anymore likely [than a nationwide

claim]."

The trial court also amplified its original ruling concerning

plaintiff's breach of implied warranty claim by stating:

"Plaintiff once again argues that he is not required to

establish vertical privity ***. Plaintiff is wrong.

Plaintiff is asserting a claim for economic losses, not

for personal injury. Plaintiff's allegation that he

suffered leg cramps is irrelevant. He is not bringing

a claim for damages suffered from his leg cramps. Our

supreme court has clearly held that claims for economic

losses are subject to the requirement of privity."

The court also clarified its original reasoning concerning

plaintiff's medical monitoring claim:

"Plaintiff *** argues that this court erred in granting

summary judgment on his medical monitoring claim.

Plaintiff, however, still offers no evidence that he is in

need of medical monitoring. Plaintiff's treating physicians

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No. 1-04-3879

testified that Plaintiff is not in need of medical

monitoring due to taking Baycol. It is plaintiff's burden

to come forth with some evidence, not speculation, of his

need for medical monitoring to survive summary judgment.

There is no such evidence in the record and no genuine issue

of material fact to be decided."

This appeal followed.

II. Summary Judgment Standard

We review summary judgment orders de novo. State Farm

Mutual Automobile Insurance Co. v. Universal Underwriters Group,

285 Ill. App. 3d 115, 120 (1996). Summary judgment should be

granted when "the pleadings, depositions, and admission on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact" and the moving "party is

entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c)

(West 2002). However, summary judgment is a drastic measure and

should only be granted when the moving party's right to judgment

is clear and free from doubt. Bourgonje v. Machev, 362 Ill. App.

3d 984, 995 (2005).

III. ANALYSIS

A. Consumer Fraud Claim

We first address the contention that the trial court erred

by granting summary judgment in favor of defendant on plaintiff’s

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No. 1-04-3879

consumer fraud claim. Plaintiff alleges that defendant violated

the Consumer Fraud Act by concealing Baycol's safety risks from

the public.

The Act provides that “ ‘deceptive acts or practices *** or

the concealment, suppression or omission of any material fact,

with intent that others rely upon the concealment, suppression or

omission of such material fact *** in the conduct of any trade or

commerce are hereby declared unlawful.’ ” Avery v. State Farm

Mutual Insurance Co., 216 Ill. 2d 100, 179 (2005), quoting 815

ILCS 505/2 (West 1998). To prove a private cause of action under

the Act, a plaintiff must establish: “(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 the course of conduct involving trade or commerce,

and (4) actual damage to the plaintiff, (5) proximately caused by

the deception.” Avery, 216 Ill. 2d at 180, citing Oliveira v.

Amoco Oil Co., 311 Ill. App. 3d 886, 898 (2000).

The Act indicates that sellers have a duty not to conceal or

suppress known material facts regarding products from potential

buyers. Miller v. William Chevrolet/Geo, Inc., 326 Ill. App. 3d

642, 658 (2001); Totz v. Continental Du Page Acura, 236 Ill. App.

3d 891, 902 (1992). In the present case, plaintiff claims that

defendant omitted material facts concerning Baycol's safety. For

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No. 1-04-3879

liability to attach due to an alleged concealment, a plaintiff

must establish that the fact concealed was known to the seller at

the time of concealment. Miller, 326 Ill. App. 3d at 658.

Moreover, a plaintiff must establish that defendants intended

that they rely on the suppression in making their choice to buy.

Miller, 326 Ill. App. 3d at 658.

In the case sub judice, plaintiff points to nothing in the

record evidencing an intent to conceal information from the

public. Plaintiff’s sole piece of evidence, defendant’s

announcement that it intended to remove Baycol from the market,

does not indicate an intent to conceal. The most natural and

unstrained interpretation of defendant’s statement, in our view,

indicates that defendant’s ongoing monitoring of Baycol revealed

that Baycol may no longer be safe to the public. This is not an

admission, either implicitly or explicitly, that defendant

concealed the safety of its product from the public. On a motion

for summary judgment, plaintiff must produce some evidence in

favor of its claim. See, e.g., Petrik v. Monarch Printing Corp.,

143 Ill. App. 3d 1, 4 (1986) (noting that to survive a motion for

summary judgment, a plaintiff "cannot rest upon his complaint,

but must submit affidavits and other documentary evidence to

create an issue of fact"). For the reasons outlined above, we

conclude that plaintiff failed in this endeavor.

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No. 1-04-3879

Furthermore, it is a well-established principle of law that

a recall announcement is not an admission of fault. See, e.g.,

Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59, 64

(1997)("the taking of precautions against the future, such as

issuance of recall letters, cannot be construed as an admission

of responsibility for the past"). Similarly, we do not view a

recall announcement as evidence of concealment, particularly

since even a strained interpretation of defendant's announcement

could not be construed as an admission of concealment. An

unstrained interpretation of the statement merely reveals that,

as a precautionary measure, defendant decided to recall Baycol

from the market. Under plaintiff's interpretation of the Act,

any recall announcement, such as in the present case, would

provide a prima facie case for concealment. This result, in our

view, constitutes an unsupportable and unreasonable extension of

the Act. We therefore decline to adopt it. See, e.g., Estate of

Heanue v. Edgcomb, 355 Ill. App. 3d 645, 650 (2005) (“Statutes,

of course, must be construed to avoid absurd results”).

Similarly problematic, plaintiff provides no support for such an

extension of the Act and we therefore need not consider it.

Washington v. Caseyville Health Care Ass’n, 284 Ill. App. 3d 97,

102 (1996).

Plaintiff's claim also lacks merit because of his inability

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to show that he was actually deceived by any omission made by

Bayer. Our supreme court has explicitly stated that a plaintiff

pursuing a consumer fraud claim for an alleged omission must show

that he was deceived by the omission. Avery v. State Farm Mutual

Automobile Insurance Co., 216 Ill. 2d 100, 200 (2005) ("Proximate

causation is an element of all private causes of action under the

Act. Thus, [the plaintiff] must establish that he was deceived

by [the defendant's] representations or omissions"). Here, there

is no evidence of an omission; thus, we fail to see how any

actual deception can be shown.

B. Breach of Implied Warranty Claim

We next address plaintiff's argument that the trial court

erred by dismissing his breach of warranty claim. The trial

court dismissed this claim for two reasons: first, plaintiff

failed to establish privity with defendant; second, plaintiff

failed to provide sufficient notice to defendant. On appeal,

plaintiff argues that notice and privity were sufficient because

he suffered a personal injury, which is an exception to the

general notice and privity requirements for breach of warranty

claims.

In order for a plaintiff to file a claim for economic

damages under the Uniform Commercial Code (UCC)(810 ILCS 5/1-101

et seq. (West 2002)) for the breach of an implied warranty, he or

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she must be in vertical privity of contract with the seller.

Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 292 (1988);

Szajna v. General Motors Corp., 115 Ill. 2d 294, 311 (1986).

"This means that 'the UCC article II implied warranties gives a

buyer of goods a potential cause of action only against his

immediate seller.' " Mekertichian v. Mercedes-Benz U.S.A.,

L.L.C., 347 Ill. App. 3d 828, 832 (2004), quoting Rothe v.

Maloney Cadillac, Inc., 119 Ill. 2d 288, 292 (1988). Thus,

plaintiff would only have a cause of action for breach of implied

warranty of merchantability against the entity from which he

purchased Baycol and not against defendant. Here, plaintiff

acknowledged in his interrogatory answers that he purchased

Baycol directly from a pharmacy and not defendant. Thus,

plaintiff's suit should have been brought against this pharmacy.

Plaintiff argues that he may obviate the privity requirement

because of his personal injury allegation. We are not persuaded.

Although a plaintiff may be excepted from the privity requirement

by suing for personal injury (Perona, 292 Ill. App. 3d at 64),

plaintiff here has not bought an action for personal injury.

Plaintiff alleges in his complaint that "Defendant[] breached

this warranty of merchantability by selling Baycol as being fit

for its ordinary purpose when, in fact, it was not." In other

words, though he allegedly suffered personal injury, he is not

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suing for personal injury nor does he seek compensation for any

alleged personal injury. Indeed, during oral argument concerning

class certification, plaintiff's counsel admitted as much by

stating that plaintiff's class "[d]oes not seek to include

personal injury claims. *** There are financially injured

people. And those are the people [plaintiff] chooses to

represent." Thus, plaintiff, by his own admission, is suing for

purely economic loss. See Lowe v. Kang, 167 Ill. App. 3d 772,

776 (1988) (holding that an attorney is the client's agent and

statements made by the attorney are binding on the client). He

therefore was required to prove privity but could not. Thus, the

trial court correctly granted summary judgment on that basis.

Szajna v. General Motors Corp., 115 Ill. 2d 294, 311 (1986).

In light of our conclusion that plaintiff failed to

establish privity with Bayer, thereby forfeiting his implied

warranty claim, we need not address defendant's argument that the

plaintiff provided insufficient notice for his implied warranty

claim.

C. Medical Monitoring Count

We next address plaintiff's contention that the trial court

erred by granting summary judgement in favor of defendant on

plaintiff's medical monitoring claim. Specifically, plaintiff

argues in his briefs that "Baycol exposed him and other putative

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class members to an increased risk of developing rhabdomyolysis,"

and that his medical monitoring claim was therefore a "viable

claim."

Defendant argues that no Illinois state case has addressed

whether a cause of action sounding in medical monitoring exists

in Illinois, where the plaintiff asserts no claim for present

personal injury and does not seek recovery for personal injury.

Plaintiff, in his reply brief, cites to Carey v. Kerr-McGee

Chemical Corp, 999 F. Supp. 1109, 1119-20 (N.D. Ill. 1998), and

Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95, 100-02

(2003), for the proposition that a claim for medical monitoring

exists in Illinois without proof of present physical injury. In

Carey, the court addressed whether Illinois law provides for a

claim for medical monitoring to detect the onset of physical harm

in the absence of any showing of present physical harm. The

court determined that if the Illinois Supreme Court confronted

this issue, allowing medical monitoring claims would not conflict

with Illinois law. Carey, 999 F. Supp. at 1120. The appropriate

inquiry for such a claim, according to the Carey court, would be

whether "medical monitoring is, to a reasonable degree of medical

certainty, necessary in order to diagnose properly the warning

signs of disease." Carey, 999 F. Supp. at 1119.

Assuming, arguendo, that our supreme court would recognize

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No. 1-04-3879

such a claim, the trial court nevertheless would have been

justified in granting an order of summary judgment in favor of

defendant because plaintiff failed to produce any evidence in

support of such a claim other than his own bald allegation.

Plaintiff presented no evidence to the effect that "medical

monitoring is, to a reasonable degree of medical certainty,

necessary in order to diagnose properly the warning signs of

disease." Carey, 999 F. Supp. at 1119. To survive a motion for

summary judgement, a plaintiff "cannot rest upon his complaint

but must submit affidavits and other documentary evidence to

create an issue of fact." Petrik v. Monarch Printing Corp., 143

Ill. App. 3d 1, 4 (1986). Here, plaintiff offers nothing in

support of his medical monitoring claim other than his own

allegation that Baycol caused him leg cramps. This allegation is

insufficient to survive summary judgment. Towner v. Board of

Education, 275 Ill. App. 3d 1024, 1031 (1995) (to survive summary

judgment, a plaintiff must offer "evidence, as opposed to mere

allegations"). Indeed, the evidence in the record seems to

invite a different conclusion. Plaintiff's own doctors testified

that no future medical monitoring would be necessary for

plaintiff.

Moreover, the plaintiff failed to mention in his initial

brief, or to the trial court below, the principle explained in

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Carey; namely, that a plaintiff may bring a claim for medical

monitoring if plaintiff shows, "to a reasonable degree of medical

certainty, [that medical monitoring] is necessary in order to

diagnose properly the warning signs of disease." Plaintiff

therefore forfeited such an argument. Daniels v. Anderson, 162

Ill. 2d 47, 58 (1994), quoting Kravis v. Smith Marine, Inc., 60

Ill. 2d 141, 147 (1975) (" ‘an issue not presented to or

considered by the trial court cannot be raised for the first time

on review’ "); see also People v. Patel, 366 Ill. App. 3d 255,

268 (2006) ("It is well settled that points not argued in

appellant's opening brief are waived and shall not be raised in

the reply brief").

We are similarly unpersuaded by plaintiff's reliance on

Lewis. The plaintiff in Lewis sought compensation for the cost

of medical testing made necessary by the defendant's

manufacturing, marketing, and sale of a lead pigment. Lewis, 342

Ill. App. 3d at 101. We consider Lewis to be inapplicable

because there, unlike here, the plaintiff sought compensation for

medical testing to detect a present physical injury. Lewis, 342

Ill. App. 3d at 101 ("In this case *** we are faced with the ***

question of whether the cost of diagnostic testing to detect a

possible injury *** is initself a present [compensable] injury").

Thus, the court did not address the question posed by plaintiff

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here; namely, whether a plaintiff may bring a claim for medical

monitoring for potential future harm, where no present injury is

shown.

Based on our conclusion that plaintiff's individual claims

lacked merit, we believe that the trial court properly denied

plaintiff's motion for class certification because plaintiff was

an inadequate representative. See Landesman v. General Motors

Corp., 72 Ill. 2d 44, 48 (1978) (stating that class certification

requires that "the named representative[] of the putative class

possess[] a valid cause of action” against defendant).

D. Plaintiff's Motion for Leave to File an Amended Complaint

Plaintiff contends that the trial court erred in denying his

motion for leave to file an amended complaint or other pleadings

adding a plaintiff class representative for an Illinois class.

The trial court allowed plaintiff leave to file an amended

complaint for an Illinois-only class with two conditions: first,

that plaintiff establish that a statewide class was more likely

to be certified than a nationwide class; second, that plaintiff

join a new class representative. We do not believe the denial of

plaintiff’s motion constituted reversible error. A reviewing

court will reverse a trial court's order concerning a motion for

leave to file an amended complaint only if a clear abuse of

discretion is shown. Orr v. Shepard, 171 Ill. App. 3d 104, 109

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(1988).

Here, plaintiff failed to meet either of the trial court's

stipulations discussed above. Though plaintiff, in his motion

for leave to file an amended complaint, stated that "applying

Illinois law to the putative Illinois class would resolve the

alleged manageability concerns," plaintiff did not explain how

the trial court's alleged manageability concerns would be

resolved by an Illinois class. Thus, plaintiff's attempt to

address the trial court's concern was conclusory and by no means

illuminative. Moreover, the motion failed to name a new class

representative, an explicit requirement stated by the trial court

in its order. We therefore see no abuse of discretion in the

trial court’s disposition of the matter.

Conclusion

For the foregoing reasons, we affirm the trial court's order

granting summary judgement in favor of defendant and the denial

of the motion for class certification.

McNULTY and JOSEPH GORDON, JJ., concur.

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