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 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.
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 plaintiffs damages. Additionally, with respect to count III, the defendants argued that the plaintiffs 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 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, 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 505/10a(a) (West 2004)) must demonstrate that the fraud complained of proximately caused the plaintiffs 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, 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs injury. Zekman, 182 Ill. 2d at 373. Because the plaintiffs 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 plaintiffs 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 plaintiffs damage, for the plaintiffs testimony demonstrated that he had not been deceived by AT&T’s actions. Zekman, 182 Ill. 2d at 376.
Similarly, the plaintiffs deposition testimony in the case at bar establishes that the conduct complained of was not the proximate cause of her injury. The plaintiffs 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 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 plaintiffs 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.
The defendants are entitled to a summary judgment on count I of the plaintiffs 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 plaintiffs 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 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 plaintiffs complaint.
I believe that the defendants were also entitled to a summary-judgment on count III of the plaintiffs 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 between the artificially inflated price and the price that would have been paid absent the deception.
In rejecting the plaintiffs 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 plaintiffs 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 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 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 Bay-col 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 plaintiffs 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 plaintiffs physician knew of the risks and dangers associated with the use of Baycol but determined that the risks and dangers associated with the plaintiffs 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 tort but rises or falls with the plaintiffs claims under the Act. See Indeek North American Power Fund, L.P. v. Norweb pic, 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.