De Bouse v. Bayer A.G.

Opinion

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

Decision filed 10/09/08. The text of IN THE this dec ision m ay b e changed or

corrected prior to the filing of a APPELLATE COURT OF ILLINOIS P e t i ti o n for Re hea ring or the

disposition of the same. FIFTH DISTRICT ________________________________________________________________________

TERESA DE BOUSE, Individually and On ) Appeal from the Behalf of Others Similarly Situated, ) Circuit Court of ) St. Clair County. Plaintiff-Appellee, ) ) v. ) No. 04-L-53 ) BAYER AG, BAYER CORPORATION, ) SMITHKLINE BEECHAM CORPORATION, ) d/b/a GLAXOSMITHKLINE, ) GLAXOSMITHKLINE PLC, MARCY GRIM, ) MICHAEL HARVEY DAVIDSON, M .D., ) and MICHAEL LEVER, ) Honorable ) Michael J. O'Malley, Defendants-Appellants. ) Judge, presiding. ________________________________________________________________________

JUSTICE DONOVAN delivered the opinion of the court:

A class action complaint sounding in consumer fraud was filed in the circuit court of

St. Clair County by the plaintiff, Teresa De Bouse, individually and on behalf of other

similarly situated Illinois residents, alleging that the defendants, Bayer AG, Bayer Corp.,

SmithKline Beecham Corp., doing business as GlaxoSmithKline, GlaxoSmithKline PLC,

Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever, committed common law

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

Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)), in concealing negative safety

and efficacy data on a pharmaceutical product it offered for sale in Illinois. The St. Clair

County circuit court granted the plaintiff's motion to certify the case as a class action. The

circuit court denied the defendants' motion for a summary judgment, but it certified three

questions of law for appellate review pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R.

1 308(a)). The defendants filed a petition for leave to appeal the class certification order

pursuant to Supreme Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)), and leave was initially

granted. The defendants filed a separate application, petitioning this court to consider the

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

appeals were consolidated under cause No. 5-06-0077.

After reviewing the record, we determined that the defendants' appeal from the class

certification order was untimely, and we dismissed the appeal for a lack of jurisdiction. De

Bouse v. Bayer AG, 373 Ill. App. 3d 774, 782, 869 N.E.2d 365, 372 (2007). The defendants

included a number of arguments in regard to the denial of their summary judgment motion.

We declined to specifically address those arguments on grounds that the denial of a summary

judgment motion is not a final, appealable order, that this court had limited the interlocutory

appeal to the certified questions, and that there appeared to be questions of material fact

about which discovery had not been conducted. De Bouse, 373 Ill. App. 3d at 783, 869

N.E.2d at 372. As to the certified questions, we found that in order to establish consumer

fraud under a theory of a concealment of a material fact in the conduct of trade or commerce,

it is sufficient to show that the facts concealed were known to the defendant at the time of

the concealment, that the defendant intended that the plaintiff rely on the deception, that the

plaintiff is actually deceived, whether by direct or indirect deception, and that if the plaintiff

had known about the concealed facts, she would not have purchased the product. De Bouse,

373 Ill. App. 3d at 784-85, 869 N.E.2d at 373-74. The defendants appealed. The Illinois

Supreme Court entered a supervisory order, directing this court to vacate the judgment and

to reconsider it in light of Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 879 N.E.2d 910

(2007). De Bouse v. Bayer AG, 226 Ill. 2d 613, 880 N.E.2d 181 (2008). In accordance with

the mandate of the supreme court, we vacated our prior opinion, and we ordered

supplemental briefing. Upon reconsidering the case in light of Barbara's Sales, Inc., we do

2 not find that a different result is warranted. Our reasons are set forth in the following

opinion.

I. Procedural History

This is a class action case involving the prescription drug cerivistatin, which was sold

in the United States under the brand name Baycol. Baycol is a member of a class of statin

drugs that are prescribed to lower the lipid levels of individuals with high cholesterol.

Between 1997 and 2000, the Food and Drug Administration had approved the various doses

of Baycol for use in the United States. The plaintiff's personal physician prescribed Baycol

for the plaintiff beginning in February 2001. The plaintiff purchased Baycol on February 22,

2001, May 23, 2001, and July 30, 2001. Each prescription contained 30 tablets. The price

for 30 tablets was $51.09, but the plaintiff's copay was $25. In August 2001, Baycol was

withdrawn from the market because its use was associated with a serious medical condition

called rhabdomyolysis. Sometime in August 2001, a pharmacist from the plaintiff's

pharmacy called the plaintiff and directed her to stop taking Baycol and to contact her

physician for an alternative drug. The plaintiff did not use the remainder of the Baycol

prescription.

The plaintiff filed a three-count complaint against the defendants on behalf of herself

and a class of Illinois residents who had purchased Baycol. Illinois residents who allege or

have alleged personal injuries or death as a result of taking Baycol were excluded from the

class. Count I and count III of the first amended complaint are brought under the Consumer

Fraud Act (815 ILCS 505/1 et seq. (West 2004)). Count I alleges that the defendants offered

Baycol for sale, representing that it was reasonably safe for its intended purpose, that the

defendants knowingly and intentionally concealed and suppressed information regarding

known risks and dangers of Baycol with the intent that the plaintiff purchase it, that the

plaintiff was actually deceived in that she purchased a drug that she would not have

3 purchased had she been aware of the information regarding risks and dangers that had been

concealed and suppressed, and that she suffered damages in the amount of the purchases.

Count III alleges that by concealing the known risks and dangers associated with use of

Baycol, the defendants were able to charge prices far in excess of the fair market value of the

drug, thereby committing one or more unfair practices under the Consumer Fraud Act. Count

II alleges common law civil conspiracy to commit fraud based on the aforementioned

violations of the Consumer Fraud Act.

In a discovery deposition, the plaintiff testified that she had no independent

knowledge of Baycol at the time her physician prescribed it. She had not reviewed medical

references on Baycol. She had not done any research on Baycol. The plaintiff stated that she

relied on her physician to make medical judgments about proper medications. The plaintiff

stated that she understood that some prescription medications have potential side effects. She

testified that she would not take a medication if she determined that the risks of harm

outweighed the benefits. She stated that she would rely on her physician and on the drug

information sheet that was attached to the prescription bag by the pharmacy to make a

determination regarding the purchase and use of prescription drugs.

The defendants filed a motion for a summary judgment, claiming that the plaintiff's

deposition testimony establishes, as a matter of law, that she cannot make a prima facie case

under the Consumer Fraud Act. The defendants stated that the plaintiff testified that she had

not seen, read, or heard anything about the drug and that she relied on her physician's

judgment in purchasing the product. The defendants argued that the plaintiff's own testimony

shows that she could not have been actually deceived or damaged by any misrepresentation

or concealment by the defendants. The plaintiff responded that actual deception can be

established where the defendants, in offering a prescription drug for sale while concealing

adverse reactions and known risks, misrepresented that the product was safe for its intended

4 uses, that in the absence of published information about the risks and dangers, the plaintiff

reasonably relied on the misrepresentations that the product was safe for its intended uses,

and that the plaintiff would not have purchased the product had she known about the safety

risks.

The circuit court denied the defendants' motion for a summary judgment. The court

certified three questions of law for review in accordance with Supreme Court Rule 308(a).

II. The Rule 308(a) Appeal

At the outset, we note that the defendants have devoted a considerable portion of their

brief in the Rule 308(a) appeal to arguments claiming that the circuit court erred in denying

their motion for a summary judgment. We decline to specifically address those arguments

for three reasons. First, the denial of a motion for a summary judgment is interlocutory in

nature, and it is not a final, appealable order. See La Salle National Bank v. Little Bill "33"

Flavors Stores, Inc., 80 Ill. App. 2d 298, 225 N.E.2d 465 (1967). Second, we limited

interlocutory review to the legal questions certified by the trial court. Third, after considering

the theory of consumer fraud alleged in the complaint and discussed in the plaintiff's

testimony, we find that there appear to be material factual issues about which discovery has

not been had. A review of the defendants' motion for a summary judgment would not

advance a resolution of the case or serve judicial economy.

The circuit court determined that a resolution of the following questions of law could

materially advance the disposition of the litigation, and it certified the questions in

accordance with Supreme Court Rule 308(a):

"I. Whether an Illinois consumer who purchases a pharmaceutical product,

later withdrawn from the market because it was deemed unsafe, can maintain an

action under the Illinois Consumer Fraud Act [citation], even though the

pharmaceutical company did not engage in direct communication or advertising to the

5 consumer.

II. Whether the Defendants['] offering for sale of a product in Illinois is a

representation to prospective customers that the product is reasonably safe for its

intended purpose such that proof of a defendants' [sic] failure to disclose safety risks

associated with the product to consumers is a violation of the Illinois Consumer Fraud

Act.

III. Whether fraudulent statements or omissions made by a defendant to third[]

parties, other than the consumer, with the intent that they (1) reach the plaintiff[] [and]

(2) influence plaintiff's action[,] and (3) [when] plaintiff relies upon the statements

to his detriment, can support an action under the Illinois Consumer Fraud Act."

The elements of a claim under the Consumer Fraud Act are as follows: (1) a deceptive

act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the

deception, (3) the occurrence of the deception in a course of conduct involving trade or

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

815 ILCS 505/2 (West 2004); Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359,

373, 695 N.E.2d 853, 860-61 (1998). The certified questions seem to be directed toward

clarifying the factual allegations necessary to satisfy these elements in a case asserting an

intentional suppression of material facts and indirect deception.

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

Illinois Supreme Court recognized that though proof of the actual deception of a plaintiff is

required to establish the proximate cause requirement, the deception need not always be

direct between the defendant and the plaintiff. Shannon, 208 Ill. 2d at 525-26, 805 N.E.2d

at 218. It is enough that the defendant's deception, whether made directly or indirectly, be

committed with the intention that it influence the plaintiff's action and that the plaintiff relied

on the deception to her detriment. Shannon, 208 Ill. 2d at 526, 805 N.E.2d at 218; St. Joseph

6 Hospital v. Corbetta Construction Co., 21 Ill. App. 3d 925, 954, 316 N.E.2d 51, 72 (1974).

In illustrating the concept of "indirect deception," the supreme court proposed a hypothetical

case in which a defendant's product literature had actually deceived a particular builder,

architect, or contractor, resulting in the installation of defective siding on a home. Shannon,

208 Ill. 2d at 526, 805 N.E.2d at 218. The supreme court concluded, under those

circumstances, that the purchaser, who may have no independent knowledge of the qualities

or expected performance of a siding, is deceived because of the deception of the builder,

architect, or contractor, who reasonably should have correct knowledge, and that the damages

could have arguably occurred as a result of the indirect deception. Shannon, 208 Ill. 2d at

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

The Illinois Supreme Court also recognized that the omission or concealment of a

material fact in the conduct of trade or commerce constitutes consumer fraud. Connick v.

Suzuki Motor Co., 174 Ill. 2d 482, 504, 675 N.E.2d 584, 595 (1996). A material fact exists

where a buyer would have acted differently if he had known of the suppressed information

or if the concealed fact concerned the type of information on which a buyer would be

expected to rely in making a decision regarding the purchase of the product. Connick, 174

Ill. 2d at 505, 675 N.E.2d at 595.

In order to establish consumer fraud under a theory of concealment by silence,1 the

1 A similar cause of action was asserted in Jensen v. Bayer AG, 371 Ill. App. 3d 682,

862 N.E.2d 1091 (2007). In Jensen, a summary judgment was granted for the defendant

because the plaintiff failed to submit some evidence on two elements that are necessary to

prove a violation of the Consumer Fraud Act, i.e., the defendant's intent to conceal or that

the plaintiff was actually deceived by any omission made by the defendant. Jensen was

decided after the parties had an opportunity for discovery on the merits. Aside from

recognizing the existence of a cause of action under similar facts, we do not find Jensen to

7 plaintiff must allege and establish that the defendant concealed material facts regarding its

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

intent that it influence the plaintiff's action, that the plaintiff actually relied on the defendant's

deception, and that if the plaintiff had known of the facts concealed, she would not have

purchased the product. Connick, 174 Ill. 2d at 504-05, 675 N.E.2d at 595; Pappas v. Pella

Corp., 363 Ill. App. 3d 795, 804-06, 844 N.E.2d 995, 1003-04 (2006).

The defendants submit that this case is governed by a line of decisions in which the

Illinois Supreme Court held that deceptive advertising could not be the proximate cause of

damages unless the plaintiff was actually deceived by the misrepresentation, and they cite

Avery v. State Farm Mutual Auto Insurance Co., 216 Ill. 2d 100, 835 N.E.2d 801 (2005),

Price v. Philip Morris, Inc., 219 Ill. 2d 182, 848 N.E.2d 1 (2005), and Zekman, 182 Ill. 2d

359, 695 N.E.2d 853, among others. In those cases, the alleged deceptions arose from

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

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

plaintiff must allege and show that she was actually deceived by a specific promise or

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

N.E.2d at 861-62.

In a supplemental brief filed on remand from the supervisory order, the defendants

claimed that Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 879 N.E.2d 910 (2007),

supports its position. The defendants argued that in Barbara's Sales, Inc., the Illinois

Supreme Court emphasized that actual deception must be established and that a deceptive

advertising campaign cannot be the proximate cause of damages unless representations made

in the campaign actually deceived the plaintiff. The defendants argued that based on the

plaintiff's own testimony, the plaintiff cannot meet the threshold requirements set out in

be helpful in regard to the issues here.

8 Barbara's Sales, Inc.

In Barbara's Sales, Inc. v. Intel Corp., the plaintiff alleged that the defendant made

affirmative deceptions in marketing a new generation of microprocessor. Barbara's Sales,

Inc., 227 Ill. 2d at 73, 879 N.E.2d at 926. While the primary issue in Barbara's Sales, Inc.

concerned a choice-of-law question, the adequacy of the consumer fraud allegations was

considered as a part of the class certification issue. In Barbara's Sales, Inc., the Illinois

Supreme Court held that the defendant's implicit representations that its Pentium 4

microprocessor was "the best," and that it had a higher overall performance when compared

with the Pentium III, amounted to "puffing" and that the representations were not "deceptive

acts" within the purview of the Consumer Fraud Act. Barbara's Sales, Inc., 227 Ill. 2d at 73,

879 N.E.2d at 926. The supreme court also found that though the defendant's internal

documents revealed that its predecessor product, the Pentium III, was faster in some of the

performance testing when compared with the Pentium 4, the documents did not establish

deceptive advertising because it was not apparent that the defendant had made any false

public claims regarding specific speed benchmarks and the internal documents revealed that

the processing speeds varied by application. Barbara's Sales, Inc., 227 Ill. 2d at 76, 879

N.E.2d at 927-28.

Unlike Barbara's Sales, Inc., the case at bar does not concern affirmative

representations or "puffing" in a marketing campaign. Barbara's Sales, Inc., 227 Ill. 2d at

73, 879 N.E.2d at 926. Unlike Barbara's Sales, Inc., the defendants in this case allegedly

suppressed and concealed negative safety and efficacy data associated with the use of Baycol,

to influence prescribing physicians and their patients. The act of intentionally suppressing

and concealing material information–information that identifies adverse reactions and serious

injuries associated with use of a pharmaceutical product–with the intent to influence

purchasing decisions is an implicit misrepresentation of the safety and efficacy of the

9 product, and if the consumer is actually deceived thereby, the deception may give rise to a

consumer fraud action. Given the significant differences between Barbara's Sales, Inc. and

the case at bar, we do not believe that Barbara's Sales, Inc. is controlling here.

In comparing and contrasting the aforementioned authorities for purposes of

discerning the factual allegations necessary to a cause of action under the Consumer Fraud

Act, we find very fine but significant distinctions between cases alleging an affirmative

deception and cases alleging a deception by silent concealment and also between cases

alleging direct deception and cases alleging indirect deception. These distinctions remain

after Barbara's Sales, Inc. Had the Illinois Supreme Court determined that the theory of

concealment by silence was no longer sound, it would have expressly overruled the line of

cases approving that theory. Accordingly, we conclude that the theory remains viable.

The complaint at issue involves a claim of indirect deception by silent concealment.

The plaintiff has alleged that she had no independent knowledge of the benefits and the

dangers associated with the use of Baycol, that the suppression of data that identified adverse

reactions and serious injuries associated with use of Baycol constituted an implicit

misrepresentation of the safety and efficacy of Baycol, and that the suppression of material

facts was a deceptive practice under the Consumer Fraud Act. The plaintiff has alleged that

she was actually deceived by the defendant's suppression and concealment of negative

efficacy and safety information associated with the use of Baycol, that she was deceived

because of the alleged deception of persons, such as her physician and her pharmacist, who

reasonably should have correct knowledge about the efficacy and safety of Baycol, and that

she would not have purchased Baycol had she been made aware of the suppressed

information. The plaintiff also alleged that she suffered actual out-of-pocket losses in

purchasing the product.

We pause here to note that we differ with the dissent not only on whether the plaintiff

10 can establish actual deception but also on the issue of proximate cause for damages. The

dissent notes that the complaint does not allege that the plaintiff suffered any personal injury

as a result of using the drug or that the drug did not lower the plaintiff's cholesterol. The

dissent suggests that the plaintiff cannot establish that she suffered actual damages, even if

the purchase was based on deceptive conduct, if the drug lowered the plaintiff's cholesterol

without causing any side effects, because the plaintiff would have gotten exactly what she

paid for: a safe, cholesterol-lowering drug. In our view, a consumer who is fortunate to

avoid a known but concealed adverse reaction associated with the use of a medication does

not necessarily "get her money's worth." Product value is determined by the price, the

product's efficacy and benefits, the product's safety risks, and the availability of other

products relative to price, performance, and risk. A consumer cannot judge "true value"

where known information regarding product performance is withheld. A consumer is entitled

to make an informed choice, in conjunction with her health care professionals, about the

actual risks and benefits of a prescription drug. In this case, the plaintiff clearly stated that

she would not have purchased Baycol, and accepted the risks associated with use of Baycol,

had she been informed of the risks.

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

we answer the first and third certified questions in the affirmative, because the Illinois

Supreme Court has recognized a cause of action under the Consumer Fraud Act based on a

claim of indirect deception. The second question, as phrased, presents a mixed question of

fact and law, and therefore it is not a proper question under Supreme Court Rule 308(a).

III. Jurisdiction and the Class Certification Order

The defendants filed their petition for leave to appeal the class certification order

pursuant to Supreme Court Rule 306(a)(8). The plaintiff moved to dismiss the appeal for a

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

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

determined that it was necessary to revisit the issue of jurisdiction. After reconsidering the

issue of jurisdiction in light of the record, we conclude that the Rule 306(a)(8) appeal was

untimely filed and must be dismissed.

The record shows that a hearing was held on the plaintiff's motion for class

certification on July 29, 2005. At the close of the hearing, the circuit court announced that

it would take the matter under submission. The court then entered a written order stating that

the issue was under submission. The parties submitted proposed orders for the court's

consideration. On September 1, 2005, the court signed a 12-page order granting the

certification of the class. The order is contained in the court file. It bears a file stamp of

September 2, 2005. The court file also includes a computerized docket sheet that contains

an entry dated September 2, 2005, indicating that a 12-page order was entered that date.

There is no indication that the order was served personally or by mail on counsel of record.

The record shows that the parties appeared in open court on September 27, 2005, and

December 29, 2005, in relation to the summary judgment motion that had been filed in the

case. The order entered after the hearing on September 27, 2005, specifically states that all

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

conference on January 11, 2006.

On January 25, 2006, the defendants filed a motion to vacate or amend the class

certification order nunc pro tunc on the grounds that they had not received a notice of the

entry of the order granting class certification, that the circuit court clerk had failed to serve

a copy of the order on all the parties and had failed to note that service in the file as required

by Twentieth Judicial Circuit Rule 2.06 (20th Judicial Cir. Ct. R. 2.06 (eff. December 12,

1991)), and that they made diligent efforts to monitor the court file once the motion had been

taken under advisement by the court. The defendants asserted that the first time they became

12 aware that the order had been entered was during the status conference on January 11, 2006,

that their right to appeal was "severely prejudiced," and that the circuit court had the

authority to enter a nunc pro tunc order to avoid the prejudice. The defendants attached

affidavits from the defendants' attorneys and their staff members. The affidavits outlined the

efforts undertaken to monitor the court file.

The plaintiff filed a response in opposition to the defendants' motion for an order nunc

pro tunc. Therein, the plaintiff stated that her attorneys obtained a copy of the class

certification order by appearing in person at the circuit clerk's office on or about September

5, 2005, and making an inquiry about the status of the class certification motion. The

plaintiff attached affidavits from its attorneys and a copy of the computerized docket sheet

that revealed an entry of September 2, 2005, referencing a 12-page order.

On January 30, 2006, the court held a hearing on the defendants' motion to vacate or

amend the class certification order nunc pro tunc. After considering the arguments of

counsel, the judge said, "It's only just that I enter an order nunc pro tunc if that in some way

can protect your right to appeal this thing if that's the right thing to do." The court then

entered the following order:

"Defendants' Motion to Vacate or Amend Class Certification Order Nunc Pro

Tunc called and heard. Over plaintiff's objection, said motion is hereby GRANTED.

The Court's Order dated September 2, 2005, granting Plaintiff's Motion For Class

Certification is hereby vacated nunc pro tunc and amended to be entered January 11,

2006, the date the defendants' [sic] received notice of said Order."

The defendants filed their petition for leave to appeal the certification order on February 10,

2006.

Supreme Court Rule 306(a)(8) allows a party to petition for leave to appeal from an

order granting or denying the certification of a class action. Supreme Court Rule 306(c) (210

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

the entry of the order granting or denying the certification. The 30-day time limit under Rule

306 is jurisdictional. Kemner v. Monsanto Co., 112 Ill. 2d 223, 236, 492 N.E.2d 1327, 1333

(1986); Leet v. Louisville & Nashville R.R. Co., 131 Ill. App. 3d 763, 765, 475 N.E.2d 1340,

1341-42 (1985). There is no provision for extending the time for filing a petition for

interlocutory appeal other than by permission of the reviewing court pursuant to Rule 306(f)

(210 Ill. 2d R. 306(f)).

In this case, the certification order was entered on September 2, 2005. By our

calculation, the petition for leave to appeal should have been filed no later than Monday,

October 3, 2005. The defendants' petition for leave to appeal was not filed until February

10, 2006, and they did not seek permission from this court to file an untimely petition for

leave to appeal. In accordance with the time limits set forth in Supreme Court Rule 306, the

defendants' petition for leave to appeal was filed out of tim e. The defendants presented a

number of legal and equitable arguments to the trial court in support of their motion to vacate

or amend the certification order nunc pro tunc. We have considered those arguments, and

for the reasons discussed below, we have concluded that the defendants have not established

any basis for excusing their failure to file the petition for leave to appeal within the 30-day

time limit.

The defendants have argued that an order to vacate or amend the certification order

nunc pro tunc is proper because the circuit clerk's failure to provide notice of the entry of the

certification order prejudiced their right to file a petition for leave to appeal. The Illinois

Supreme Court has considered and rejected similar arguments. Mitchell v. Fiat-Allis, Inc.,

158 Ill. 2d 143, 632 N.E.2d 1010 (1994); Granite City Lodge No. 272, Loyal Order of the

Moose v. City of Granite City, 141 Ill. 2d 122, 565 N.E.2d 929 (1990).

In Mitchell v. Fiat-Allis, Inc., the trial court signed an order disposing of the case on

14 February 27, 1991. The order was file-stamped March 1, 1991, and included instructions to

the circuit court clerk to send a copy of the order to the attorneys of record. Mitchell's

attorney first learned of the order on April 25, 1991. After conferring with opposing counsel

and the trial court, Mitchell's counsel filed a petition to withdraw or vacate the order. On

April 29, 1991, the trial court granted the petition, withdrew the order dated February 27,

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

it had jurisdiction and considered the merits of the appeal. The Illinois Supreme Court

reversed, finding that the trial court lacked the authority to vacate and reenter the order more

than 30 days after it had been entered. The supreme court held that trial courts lacked the

authority to excuse compliance with the supreme court rules governing the time for filing a

notice of appeal. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012.

The supreme court has stated clearly that the parties bear the responsibility to monitor

the status of a case and that this responsibility is not lessened where the circuit clerk fails to

give notice of the entry of the order. Fiat-Allis, Inc., 158 Ill. 2d at 151, 632 N.E.2d at 1013;

Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 127, 565 N.E.2d at 931.

Actual notice is not required so long as the order appealed from was expressed publicly, in

words, at the situs of the proceeding. Fiat-Allis, Inc., 158 Ill. 2d at 148, 632 N.E.2d at 1012;

Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 123, 565 N.E.2d at 929.

The facts in the case at bar are similar to those in Fiat-Allis, Inc. Here, a typewritten

order granting class certification was entered into the court file on September 2, 2005, and

its entry was noted in the computerized docket sheet. The defendants indicated that they first

learned of the order on January 11, 2006, months after the time for filing a petition for leave

to appeal had passed. They filed a motion to vacate or amend the certification order nunc pro

tunc on January 25, 2006. On January 30, 2006, the trial court entered an order vacating

nunc pro tunc the order entered September 2, 2005, and amended it to be entered January 11,

15 2006. In our view, the decision in Fiat-Allis, Inc. controls this issue. Thus, the trial court

lacked the authority to vacate and reenter the same order more than 30 days after it had been

originally entered in order to excuse compliance with the filing requirements of Rule 306.

The defendants have also asserted that Twentieth Judicial Circuit Rule 2.06 requires

the circuit clerk to serve copies of orders to the attorneys of record, that they relied on the

circuit clerk to comply with the rule, and that they were prejudiced by the circuit clerk's

failure to comply. Local rule 2.06 directs the circuit clerk to serve on all the parties of

record, by personal service or by mail, a copy of an order within three days of its entry and

to note in the court file compliance with the rule. 20th Judicial Cir. Ct. R. 2.06 (eff.

December 12, 1991). Under Supreme Court Rule 21(a) (134 Ill. 2d R. 21(a)), the circuit

court is authorized to adopt rules for the orderly disposition of its business. However, local

rules may not be construed to modify, limit, abrogate, or otherwise conflict with the Illinois

Supreme Court rules and the existing laws of Illinois. See 134 Ill. 2d R. 21(a); People v.

Schroeder, 102 Ill. App. 3d 133, 137, 429 N.E.2d 573, 577 (1981). We conclude that the

circuit court had no authority to toll or to extend the time for filing a Rule 306 appeal in order

to remedy the circuit clerk's failure to comply with a local administrative rule.

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

on local rule 2.01 and that they were prejudiced by the circuit clerk's noncompliance with the

rule. In the pleadings and affidavits filed in the trial court, the defendants detailed the efforts

they had made to monitor the status of the class certification motion. The defendants'

attorneys stated that they assigned paralegals or other staff members to monitor the court file

once the court took the class certification motion under advisement. In addition, the

defendants' attorneys appeared in open court on September 27, 2005, prior to the running of

the 30-day time limit, to argue their summary judgment motion. The record shows that the

defendants had ample opportunities to inspect the court file and to ascertain whether an order

16 had been entered on the class certification motion. We find it remarkable and inexplicable

that the attorneys did not inquire about the status of the class certification motion when they

appeared before the court on September 27, 2005. The steps taken by the defendants to

monitor the court file undermine their claims of reliance on the local rule to their detriment.

The defendants claimed that the circuit court has the authority to vacate or amend and

to reenter an order to avoid prejudice to the parties. In support of that contention, they cited

Comdisco, Inc. v. Dun & Bradstreet Corp., 306 Ill. App. 3d 197, 713 N.E.2d 698 (1999), and

Graves v. Pontiac Firefighters' Pension Board, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996).

In Graves v. Pontiac Firefighters' Pension Board, the trial court entered an order at the close

of the evidence, stating that the case was being taken under advisement and that the court

would rule by mail. Subsequently, the trial court ruled on the motion, but through an

oversight it did not send copies to the parties. When the oversight was brought to the court's

attention, it entered a new order acknowledging its oversight and providing that the earlier

order would be final for purposes of appeal as of the date that the new order was mailed. An

appeal was taken within 30 days of the new order. In considering whether the appeal had

been timely filed for purposes of jurisdiction, our colleagues in the Fourth District held that

because the trial court had expressly stated that it would rule by mail, the initial order did not

comport with the provisions of the court's pronouncements and it did not become final until

mailed by the circuit court. Graves, 281 Ill. App. 3d at 516, 667 N.E.2d at 141.

The facts and circumstances in Comdisco, Inc. are similar to those in Graves in that

the trial court noted that the appellant relied on the trial court's standard operating procedure

of mailing a copy of the final judgment to the parties and that the court had failed to mail the

judgment in that case. Comdisco, Inc., 306 Ill. App. 3d at 202, 713 N.E.2d at 700. The case

before us is distinguishable from the aforementioned cases on its facts. Here, the trial court

did not expressly provide that it would rule by mail, and there is no evidence of a standard

17 operating procedure. As previously noted, the detailed accounts of the actions taken by the

defendants to monitor the status of the certification motion belie the claims of detrimental

reliance.

As we reviewed this issue, we found it noteworthy that the Fourth District has

declined to extend the Comdisco, Inc. decision to a case where the trial judge did not find

that the plaintiff's failure to timely file his notice of appeal had been the direct result of the

court's not following its usual practice of mailing copies of its docket entries to the parties.

Pappas v. Waldron, 323 Ill. App. 3d 330, 336, 751 N.E.2d 1276, 1280-81 (2001). The

Fourth District also recently questioned whether its decision in Graves is consistent with the

supreme court rules and Fiat-Allis, Inc. Berg v. White, 357 Ill. App. 3d 496, 501, 828 N.E.2d

889, 893 (2005). The few decisions in which a court has employed equitable principles to

cure the mistakes of ministerial officers are limited to the specific facts and circumstances

presented in those cases. The case at bar is not analogous to those cases.

Although the issue was not raised by the parties, we have also considered the propriety

of the "nunc pro tunc" order. The purpose of a nunc pro tunc order is to correct the record

of a judgment, to correct a clerical error or a matter of form so that the record conforms to

the judgment actually rendered by the court. Beck v. Stepp, 144 Ill. 2d 232, 238-39, 579

N.E.2d 824, 827-28 (1991); In re Marriage of Breslow, 306 Ill. App. 3d 41, 53, 713 N.E.2d

642, 651 (1999). In this case, the judge specifically stated that he would enter a nunc pro

tunc order "if that in some way can protect [the defendants'] right to appeal this thing if that's

the right thing to do." The nunc pro tunc order was not issued to conform the order to the

ruling actually rendered on September 2, 2005. It was not issued to amend an errant

provision in the September 2, 2005, order. Its only purpose was to restart the 30-day appeals

clock.

The situation faced by the trial court is similar to that which confronted the trial court

18 in Fiat-Allis, Inc. In that case, the Illinois Supreme Court recognized that the circuit court's

attempt to assist counsel was understandable and well-intentioned, but the court concluded

that it was errant just the same. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012. The

supreme court stated, "Attorneys are not excused from following the filing requirements [of

the supreme court rules] merely because a judge has recommended a procedural route that

lies beyond the judge's authority to travel." Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d

at 1013.

In our view, Fiat-Allis, Inc. controls the present case. Each party had a responsibility

to closely and adequately monitor the progress of its case and the court's rulings in order to

ensure that the much-anticipated petition for leave to file the interlocutory appeal was timely

filed. That was not accomplished here. The circuit clerk's failure to mail copies of the order

of September 2, 2005, to the parties does not excuse the untimely filing of the petition for

leave to appeal. The nunc pro tunc order was not a valid means by which the circuit court

could reenter the exact same order and thereby start a new 30-day period in which to file an

interlocutory appeal.

The record clearly shows that the order granting the class certification was a part of

the court file and available for public inspection. It was also noted in the docket entries.

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

than by permission of the reviewing court pursuant to Rule 306(f), and that was not done

here. The time for filing the petition for leave to appeal is jurisdictional, and the failure to

meet it or to secure a timely extension of time from the appellate court will result in the

dismissal of the appeal. Accordingly, we find that the defendants' Rule 306(a)(8) petition for

leave to appeal the class certification was untimely filed and that the appeal must be

dismissed for a lack of jurisdiction.

IV. Summary and Conclusion

19 The Rule 306(a)(8) appeal of the class certification order is hereby dismissed for a

lack of jurisdiction. We have answered certified questions I and III in the affirmative. We

have determined that certified question II is not a proper question under Supreme Court Rule

308, and therefore we declined to address it. We remand the case to the trial court for further

proceedings.

Rule 306(a)(8) appeal dismissed; certified questions answered in part; cause

remanded.

CHAPMAN, J., concurs.

JUSTICE WELCH, dissenting:

I respectfully dissent. I would decline to address the questions as identified by the

circuit court pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), finding them to

be inapposite, and consider the propriety of the order that gave rise to this appeal. In doing

so, I would find that the circuit court erred in denying the defendants' motion for a summary

judgment and would reverse that order, granting a judgment in favor of the defendants.

Accordingly, I would find it unnecessary to address the issues pertaining to class

certification.

I present my own overview of the complaint and its allegations, as well as the

defendants' motion for a summary judgment, because I feel it is necessary for a full

understanding of my position. This is a class action seeking money damages for the purchase

price paid by the plaintiff for Baycol. According to the first amended complaint, the plaintiff

was prescribed, purchased, and used Baycol, a drug manufactured, marketed, promoted, and

sold by the defendants. The action is brought on behalf of all the individuals who have

20 purchased Baycol but excludes any of those individuals who have or had an action for

damages for personal injuries or death suffered as a result of using Baycol. Counts I and III

of the first amended complaint are brought pursuant to the Consumer Fraud and Deceptive

Business Practices Act (the Act) (815 ILCS 505/1 et seq. (West 2004)), and count II alleges

common law civil conspiracy to commit fraud.

The complaint alleges that the defendants knowingly, intentionally, and/or recklessly

concealed from government regulators, the medical community, and consumers known risks

and dangers associated with the use of Baycol, while at the same time exaggerating its

efficacy, with the intent to cause consumers to purchase Baycol. It alleges that the

defendants knew of serious risks and dangers associated with the use of Baycol and

knowingly and intentionally omitted from their promotional material and advertisements

these known risks and dangers. It alleges that in deciding whether to prescribe, recommend,

and purchase Baycol, the medical community, health care insurers, and consumers, including

the plaintiff, reasonably relied on these promotional materials and advertisements, which

omitted and concealed the known risks and dangers of Baycol. The complaint alleges that

had consumers and physicians, including the plaintiff and/or her physician, known of these

risks and dangers, they would not have prescribed or purchased Baycol.

Count I alleges that the mere act of offering Baycol for sale as a consumer product is

a representation that the product is reasonably safe for its intended purpose and that the

defendants knowingly and intentionally concealed the known risks and dangers of Baycol

with the intent that the plaintiff purchase Baycol. The complaint alleges that the plaintiff was

actually deceived and suffered actual damages in that she spent money to purchase the drug

which she would not have spent had she known of the risks and dangers associated therewith.

It alleges that by their actions, the defendants committed consumer fraud within the meaning

of the Act. Count I seeks damages in the amount of the purchase price of the drug.

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

with Baycol, the defendants were able to charge prices that were far in excess of the fair

market value which Baycol would have had but for the concealment and that the defendants

knew that the prices charged for Baycol far exceeded its fair market value. The complaint

alleges that in so acting, the defendants committed one or more unfair acts or practices within

the meaning of the Act. Count III seeks damages "in an amount equal to the difference

between the price charged for Baycol and the fair market value which Baycol would have

had but for [the defendants'] omissions, suppressions, and/or concealments."

Count II alleges common law civil conspiracy based on the above violations of the

Act.

The defendants filed a motion for a summary judgment based primarily on the

deposition testimony of the plaintiff that prior to purchasing Baycol she had not seen, read,

or heard anything about the product and that she had relied solely on her physician's

judgment and not on any representation or misrepresentation of the defendants in purchasing

the product. The defendants' motion concluded that, accordingly, the plaintiff was not, and

could not have been, actually deceived by any representation, misrepresentation, or

concealment by the defendants and that any such deception could not have been the

proximate cause of the plaintiff's damages. Additionally, with respect to count III, the

defendants argued that the plaintiff's theory of damages, which the defendants call a "market

theory" of damages, has been rejected by the Illinois Supreme Court. Finally, with respect

to count II, the defendants argued that they are entitled to a summary judgment because civil

conspiracy is not an independent tort but must be premised on the commission of an

underlying independent wrong, in this case a violation of the Act.

The plaintiff responded that, even if the plaintiff had not seen or heard any

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

22 sale is a representation to the plaintiff that it is safe for its intended use, that the defendants

knew that this was not true and concealed the true risks and dangers of Baycol, and that the

plaintiff relied on the defendants' concealment in purchasing the product. The plaintiff

concluded that, accordingly, the plaintiff was actually deceived and that this actual deception

was the proximate cause of her damages. Furthermore, the plaintiff argued that proximate

causation is established based on the concealment from medical providers of the true risks

and dangers of Baycol, which concealment was intended to, and did, reach the plaintiff.

Thus, the plaintiff argued, she was indirectly deceived by the defendants' conduct.

Preliminarily, I would decline to address the questions as identified by the circuit court

pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), finding them to be inapposite.

When in its discretion this court allows an appeal under Rule 308, it is not limited to

answering the questions that the trial court has identified. First of America Bank-Illinois,

N.A. v. Drum, 295 Ill. App. 3d 205, 211 (1998). Instead, this court may, pursuant to Supreme

Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), enter any judgment and make any order that

ought to have been given or made, and it can make any other and further orders and grant any

relief that the case may require. Drum, 295 Ill. App. 3d at 211; see also Schrock v.

Shoemaker, 159 Ill. 2d 533, 537 (1994). The purpose of an appeal pursuant to Supreme

Court Rule 308(a) is to "materially advance the ultimate termination of the litigation." 155

Ill. 2d R. 308(a). In this particular case, I do not believe that answering the questions

certified by the circuit court will serve to materially advance the ultimate termination of this

litigation. Instead, I believe that the interests of judicial economy and the need to reach an

equitable result oblige this court to go beyond the questions of law presented and consider

the propriety of the order that gave rise to the appeal. See Bright v. Dicke, 166 Ill. 2d 204,

208 (1995). In any event, even if I were to answer the certified questions, given the facts as

presented by this case, I would answer them in the negative for the reasons which follow and,

23 because the questions are controlling, conclude that the circuit court erred in denying the

defendants' motion for a summary judgment.

A summary judgment is proper where the pleadings, affidavits, depositions,

admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant,

reveal that there is no genuine issue regarding any material fact and that the movant is

entitled to a judgment as a matter of law. Zekman v. Direct American Marketers, Inc., 182

Ill. 2d 359, 374 (1998). This court's review of an order denying a summary judgment is de

novo. Zekman, 182 Ill. 2d at 374.

A summary judgment in favor of a defendant is proper when a plaintiff cannot

establish an essential element of her cause of action. Volpe v. IKO Industries, Ltd., 327 Ill.

App. 3d 567, 577-78 (2002). Although the plaintiff need not prove her case at the summary

judgment stage, she must come forward with evidence that establishes a genuine issue of

material fact. Wasik v. Allstate Insurance Co., 351 Ill. App. 3d 260, 264 (2004).

Section 10a(a) of the Act (815 ILCS 505/10a(a) (West 2004)) expressly authorizes

private causes of action for violations of the Act. It provides, "Any person who suffers actual

damage as a result of a violation of [the] Act committed by any other person may bring an

action against such person." 815 ILCS 505/10a(a) (West 2004). It is now well-settled that

this section requires proof both that "actual damage" had been incurred and that the damage

was proximately caused by the violation of the Act. See Oliveira v. Amoco Oil Co., 201 Ill.

2d 134, 149 (2002); Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 72 (2007). A

summary judgment for the defendants was proper in the case at bar because the plaintiff

cannot establish these essential elements of her cause of action.

I begin with count I and the element of proximate cause. A successful claim by a

private individual suing under section 10a of the Act (815 ILCS 5/10a(a) (West 2004)) must

demonstrate that the fraud complained of proximately caused the plaintiff's injury. Zekman

24 v. Direct American Marketers, Inc., 182 Ill. 2d 359, 373 (1998).

In Zekman, a case remarkably similar to the case at bar, the plaintiff filed a class

action against AT&T and alleged violations of the Act, after he had received a series of

mailings from Direct American Marketers, Inc., indicating that he had won a prize. While

it was possible to respond by mail, the mailings urged the recipient to telephone a "900"

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

charges. These charges, as well as the option to respond by mail, were stated in the mailings,

although in less conspicuous type. The plaintiff made numerous such calls to "900" numbers

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

telephone charges and retained a percentage of the charge for itself; the majority of the

charge went to the direct marketer.

In his deposition, the plaintiff admitted that he knew prior to placing the "900" calls

both that he could have responded by mail and that he would be charged for the calls. Upon

placing the calls, the plaintiff was further informed that he would be charged and could hang

up immediately without being charged. The plaintiff made at least 24 such telephone calls.

The plaintiff's com plaint alleged that AT&T obtained money by means of a deceptive

practice under the Act.

In its motion for a summary judgment, AT&T argued that the plaintiff's deposition

testimony demonstrated that the plaintiff had not been actually deceived by the mailings or

the telephone bills and that the plaintiff therefore could not establish that any of AT& T's

alleged misconduct had caused him injury. AT&T argued that the plaintiff's deposition

testimony established that the conduct complained of was not the proximate cause of any

harm, as the Act requires.

In affirming the summary judgment for AT&T, the supreme court pointed out that

section 10a(a) of the Act, which governs private causes of action under the Act, mandates

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

at 373 (quoting 815 ILCS 5/10a(a) (West 1992)). Thus, the Act requires that a successful

claim by a private individual suing under the Act demonstrate that the fraud complained of

proximately caused the plaintiff's injury. Zekman, 182 Ill. 2d at 373. Because the plaintiff's

deposition testimony established that he had not been actually deceived by AT&T's conduct

and that the conduct complained of was not the proximate cause of his injury, AT&T was

entitled to a summary judgment on the claim. Based on the plaintiff's deposition testimony,

there was no genuine issue of material fact regarding whether the allegedly deceptive nature

of the mailings received by the plaintiff caused him to incur the charges for the "900" number

calls. Zekman, 182 Ill. 2d at 375. Rather, it appeared that the plaintiff understood the

requirements and costs of the program. Zekman, 182 Ill. 2d at 375. Based on the testimony

by the plaintiff at his deposition, there was no genuine issue of material fact regarding

whether the alleged violations of the Act by AT& T proximately caused the plaintiff's

damage, for the plaintiff's testimony demonstrated that he had not been deceived by AT& T's

actions. Zekman, 182 Ill. 2d at 376.

Similarly, the plaintiff's deposition testimony in the case at bar establishes that the

conduct complained of was not the proximate cause of her injury. The plaintiff's deposition

testimony precludes her from establishing that the alleged misconduct of the defendants

proximately caused her damages. The plaintiff testified unequivocally in a deposition that

in purchasing Baycol she relied exclusively on her physician's advice and that prior to

purchasing it she had never heard, read, or seen anything about the product and knew nothing

about it. She had never heard, read, or seen any information regarding the effectiveness of

Baycol or the presence or absence of any risks or dangers associated with the medication.

She was not deceived by the defendants.

In Barbara's Sales, Inc., 227 Ill. 2d at 76, the supreme court held that certain

26 statements made by the defendant/seller were not actionable because no plaintiff was aware

of the statements. The court pointed out that under Oliveira v. Amoco Oil Co., 201 Ill. 2d

134 (2002), and its progeny (Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.

2d 100 (2005); Shannon v. Boise Cascade Corp., 208 Ill. 2d 517 (2004); Zekman v. Direct

American Marketers, Inc., 182 Ill. 2d 359 (1998)), plaintiffs must prove that each and every

consumer who seeks redress actually saw and was deceived by the statements in question.

Based on the testimony of the plaintiff at her deposition, I do not believe that there

remains a genuine issue of material fact regarding whether the alleged violations of the Act

by the defendants proximately caused her damage, for the plaintiff's testimony demonstrates

that she was not deceived by the defendants' actions.

Nevertheless, count I of the plaintiff's complaint alleges that regardless of whether she

ever saw, heard, or read any promotional materials or advertisements about Baycol, the

defendants' mere act of selling the drug constitutes a representation that it is safe for its

intended purpose and that the plaintiff relied on this false representation in purchasing

Baycol. I point out initially that the allegation that the mere act of selling the drug constitutes

a representation that it is safe for its intended purpose is a legal conclusion and not an

allegation of fact. Accordingly, it need not be accepted as true. Kubik v. CNA Financial

Corp., 96 Ill. App. 3d 715, 719 (1981). In any event, most, if not all, prescription

medications carry some risks and dangers. This is why they are available by prescription

only. The mere act of selling a prescription medication is not a representation that it is safe

for its intended use. Indeed, it may not be safe, but its risks and dangers may be outweighed

by the risks and dangers of the medical condition that it is prescribed to treat. The plaintiff

simply cannot establish that she was actually deceived by the defendants' conduct and that

this deception was the proximate cause of her damages. Accordingly, I believe that the

circuit court erred in denying the defendants' motion for a summary judgment on count I.

27 The defendants are entitled to a summary judgment on count I of the plaintiff's

complaint for yet another reason: the plaintiff cannot establish that she suffered "actual

damage" as a result of her purchase of Baycol. In order to recover under the Act, a plaintiff

must establish that she suffered "actual damage as a result of a violation of [the] Act."

(Emphasis added.) 815 ILCS 505/10a(a) (West 2004); Oliveira, 201 Ill. 2d at 149.

In Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100 (2005), a

plaintiff's cause of action under the Act failed in part because he was unable to prove actual

damage. That case involved a claim that the defendant had violated the Act by failing to

disclose its policy of substituting nonoriginal equipment manufacturer parts for original

manufacturer parts when repairing insured vehicles. The supreme court held that the claim

of the named plaintiff DeFrank must fail because he failed to allege or prove actual damages.

DeFrank testified that, after repairs had been made under his insurance contract with State

Farm Mutual Automobile Insurance Company in which nonoriginal equipment manufacturer

parts were used, he sold his vehicle in an arm's-length transaction for what was admittedly

the same price he would have received had the vehicle had original equipment manufacturer

parts on it. It had made no difference in the value of the vehicle that nonoriginal equipment

manufacturer parts had been used in the repair. Accordingly, the plaintiff DeFrank had not

suffered actual damage and could not prevail on his claim under the Act.

Similarly, in the case at bar the plaintiff cannot establish that she suffered actual

damage as a result of her purchase of Baycol, even if that purchase was in reliance on

deceptive conduct by the defendants. The plaintiff purchased and paid for a cholesterol-

lowering drug. The complaint does not allege that the plaintiff suffered any personal injury

as a result of using the drug, nor does she allege that the drug did not work to lower her

cholesterol. If, in fact, the drug lowered the plaintiff's cholesterol without causing any

adverse side effects or personal injuries, then the plaintiff got exactly what she paid for: an

28 effective, safe, cholesterol-lowering drug. I note that the plaintiff has asserted her

physician/patient privilege (735 ILCS 5/8-802 (West 2004)) with respect to her own medical

records. Accordingly, she is unable to prove the essential element of actual damage as a

result of her purchase of Baycol, and the defendants were entitled to a summary judgment

on count I of the plaintiff's complaint.

I believe that the defendants were also entitled to a summary judgment on count III

of the plaintiff's complaint, which also alleged a violation of the Act. Dispositive on this

count is the supreme court's decision in Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 140

(2002). As is Zekman v Direct American Marketers, Inc., 182 Ill. 2d 359 (1998), Oliveira

is remarkably similar to the case at bar. In Oliveira, the named plaintiff in a class action

against Amoco Oil Company (Amoco) complained that Amoco had falsely advertised its

premium gasoline as superior to other grades of gasoline, thereby violating the Act. The

plaintiff alleged in his complaint that the false advertisements proximately caused him actual

damage. The complaint did not allege, however, that the advertisements induced the plaintiff

to buy the gasoline or that he was deceived by the ads, nor did it allege that the plaintiff had

seen, heard, or read any of the allegedly deceptive advertisements. Instead, the plaintiff

alleged that he was damaged because the ads created an artificially inflated price for the

gasoline that he purchased. The complaint alleged that these false advertisements increased

consumer demand for premium gasoline, allowing Amoco to charge an inflated price, thereby

causing actual damage to all the purchasers of the gasoline, regardless of whether they were

aware of the ads at the time of purchase. The plaintiff advanced what the supreme court

referred to as a "market theory" of causation: the deceptive ads increased demand, which

drove up the price; all the purchasers of the premium gasoline paid an increased price

because of the allegedly deceptive ads, regardless of whether they had seen or relied upon

the advertisement at issue. As in the case at bar, the remedy sought was the difference

29 between the artificially inflated price and the price that would have been paid absent the

deception.

In rejecting the plaintiff's theory of causation, the Illinois Supreme Court reaffirmed

that in order to prevail on a claim brought under section 10a(a) of the Act, a private

individual must plead and prove actual damage proximately caused by the deception.

Oliveira, 201 Ill. 2d at 149. The court concluded that its decision in Zekman controlled. In

Zekman, the plaintiff's claim failed as a matter of law because he was not actually deceived.

Oliveira, 201 Ill. 2d at 154. Similarly, in Oliveira, the supreme court found that the plaintiff's

complaint failed to allege that he was in any manner actually deceived by Amoco's

advertisements:

"Plaintiff does not allege that he was, in any manner, deceived by defendant's

advertisements. Plaintiff does not allege that he received anything other than what he

expected to receive when he purchased defendant's gasoline, i.e., a certain amount of

gasoline, with a certain octane level, for the price listed on the pump. Indeed, plaintiff

could not allege that defendant's advertisements deceived him or misled him as to

what he was receiving when he made his purchase. Because plaintiff does not allege

that he saw, heard[,] or read any of defendant's ads, plaintiff cannot allege that he

believed that he was buying gasoline which benefitted the environment or improved

engine performance." Oliveira, 201 Ill. 2d at 154-55.

Similarly, in the case at bar the plaintiff cannot establish that she was, in any manner,

deceived by the defendants' conduct. Nor can she establish that she received anything other

than what she expected to receive when she purchased the defendants' medication, a

medication which was prescribed by her physician and which might very well have

effectively worked to lower the plaintiff's cholesterol. The plaintiff admitted that she never

saw, heard, or read any information about Baycol prior to purchasing it and that she relied

30 entirely on the advice of her physician in purchasing it. Accordingly, the plaintiff cannot

establish that she suffered actual damage proximately caused by the defendants' alleged

deception.

The supreme court again rejected the viability of a "market theory" of causation in

Barbara's Sales, Inc., 227 Ill. 2d at 76.

A similar decision was reached in Shannon v. Boise Cascade Corp., 208 Ill. 2d 517

(2004). In that case the plaintiffs filed a class action under the Act against the manufacturer

of composite siding and alleged that it had deceptively advertised its product. Admissions

in all the plaintiffs' depositions established that none had received any representations

regarding the product from the defendant. The complaint did not allege that any named

builder, architect, or engineer had received any product literature or that any plaintiff

communicated with any builder, architect, or engineer who had received product literature.

The complaint set forth a "market theory" of causation similar to that put forth in Oliveira.

The circuit court granted the defendant a summary judgment on the basis that the plaintiffs

had not been aware of the defendant's advertising and that the claimed damages were not

proximately caused by the alleged deceptive advertising.

On appeal, the supreme court affirmed the summary judgment in favor of the

defendant. The plaintiffs' complaint did not allege that any deceptive advertising had been

received by any plaintiff or by any builder, architect, engineer, or other like person somehow

connected with a plaintiff. Shannon, 208 Ill. 2d at 525. The plaintiffs' market theory of

causation had been rejected in Oliveira and was similarly rejected here. The advertising had

not deceived the plaintiffs and, thus, could not have proximately caused the claimed

damages. Shannon, 208 Ill. 2d at 525.

Of particular relevance to the case at bar is the supreme court's statement in Shannon,

208 Ill. 2d at 525-26, that although proof of actual deception of a plaintiff is required, that

31 is not to say that the deception must always be direct between the defendant and the plaintiff

to satisfy the requirement of proximate cause under the Act. The court stated that if the

product literature had in fact deceived a particular builder, architect, or contractor, resulting

in the installation of defective siding on a home, the damage could arguably have occurred

as a result of the indirect deception, as required by the Act. In those circumstances, the

purchaser, who might have no independent knowledge of the qualities or expected

performance standards of siding, is deceived because of the deception of the builder,

architect, or contractor, who reasonably should have had correct knowledge. However, in

Shannon, the plaintiffs had not pled any facts to support that theory.

Similarly, in the case at bar, the plaintiff has not pled sufficient facts to support a

theory that her own physician, who prescribed Baycol for her, had seen, read, or heard any

promotional material or advertisements or received any product literature from the

defendants and in fact been deceived. Instead, the complaint makes general allegations that

the defendants advertised Baycol in publications which physicians commonly read and that

those advertisements were misleading or false. The complaint does not allege that the

plaintiff's physician received any of those publications, saw the false or misleading

advertisements, and was deceived thereby, nor did the plaintiff present any evidence to

support this theory in opposition to the motion for a summary judgment. Indeed, it is

possible that the plaintiff's physician knew of the risks and dangers associated with the use

of Baycol but determined that the risks and dangers associated with the plaintiff's elevated

cholesterol outweighed the risks and dangers associated with the drug. Accordingly, the

plaintiff can rely on this theory no more than could the plaintiffs in Shannon. I believe that

the circuit court erred in denying the defendants' motion for a summary judgment on count

III.

Finally, count II sounds in common law civil conspiracy, which is not an independent

32 tort but rises or falls with the plaintiff's claims under the Act. See Indeck North American

Power Fund, L.P. v. Norweb PLC, 316 Ill. App. 3d 416, 432 (2000). Accordingly, a

judgment in the defendants' favor on counts I and III must also result in a judgment in the

defendants' favor on count II.

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

summary judgment and having concluded that the court's order must be reversed, I would

have found it unnecessary to address the issues relating to the class certification.

33 NO. 5-06-0077

IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________

TERESA DE BOUSE, Individually and On ) Appeal from the Behalf of Others Similarly Situated, ) Circuit Court of ) St. Clair County. Plaintiff-Appellee, ) ) v. ) No. 04-L-53 ) BAYER AG, BAYER CORPORATION, ) SMITHKLINE BEECHAM CORPORATION, ) d/b/a GLAXOSMITHKLINE, ) GLAXOSMITHKLINE PLC, MARCY GRIM, ) MICHAEL HARVEY DAVIDSON, M .D., ) and MICHAEL LEVER, ) Honorable ) Michael J. O'Malley, Defendants-Appellants. ) Judge, presiding. ___________________________________________________________________________________

Opinion Filed: October 9, 2008 ___________________________________________________________________________________

Justices: Honorable James K. Donovan, J.

Honorable Melissa A. Chapman, J., Concurs

Honorable Thomas M. Welch, J., Dissents ___________________________________________________________________________________

Attorneys Katherine M . Fowler, Terry Lueckenhoff, One S. M emorial Drive, 12th Floor, for St. Louis, MO 63101; Stephen C. Carlson, J. Randal Wexler, Charles K. Schafer, Appellants Sidley Austin LLP, One South Dearborn Street, Chicago, IL 60603; Andrew Goldman, Phillip Beck, Bartlit Beck Herman Palenchar & Scott, 54 West Hubbard, Suite 300, Chicago, IL 60610 (attorneys for Bayer AG, Bayer Corp., Marcy Grim, Michael Lever)

John E. Galvin, Jonathan H. Garside, Fox Galvin, LLC, One Memorial Drive, Eighth Floor, St. Louis, MO 63102 (attorneys for SmithKline Beecham Corp., d/b/a GlaxoSmithKline, GlaxoSmithKline PLC) ___________________________________________________________________________________

Attorneys John J. Driscoll, Brown & Crouppen, P.C., 720 Olive Street, Suite 1800, for St. Louis, MO 63101; Christopher Cueto, Law Office of Christopher Cueto, P.C., Appellee 7110 West Main Street, Belleville, IL 62223 ___________________________________________________________________________________ 35