SIXTH DIVISION February 2, 2007
No. 1-04-3879
JAMES W. JENSEN, ) Appeal from the ) Circuit Court Plaintiff-Appellant, ) of Cook County. ) ) ) ) v. ) No. 01 CH 13319 ) ) BAYER AG, a German corporation, ) Honorable (BAYER CORPORATION, an Indiana ) David R. Donnersberger, Corporation, Defendant Appellee) ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, James Jensen, purchased and used Baycol, which
his doctor prescribed to him to lower his cholesterol.
Thereafter, defendant Bayer Corporation, manufacturer of Baycol,
discontinued the marketing and distribution of Baycol.1 The
plaintiff then brought an action against defendant on behalf of
himself and later filed an amended motion for class
certification. Plaintiff, in his motion for class certification,
asserted claims sounding in consumer fraud, breach of implied
warranty, and medical monitoring, regarding the manufacturing,
marketing and sale of Baycol. The trial court denied plaintiff's
motion for class certification, granted defendant's motion for
1 Defendant Bayer AG is not a party to this appeal. No. 1-04-3879
summary judgment on plaintiff's individual claims, and denied
plaintiff's motion for reconsideration for the same. For the
reasons that follow, we affirm.
I. Factual Background
On August 8, 2001, defendant issued a statement announcing
the removal of Baycol from the market, which stated, in relevant
part, the following:
"Rhabdomyolysis is a serious, potentially fatal,
adverse effect of all statin drugs, including Baycol.
They can occur with statin monotherapy, although the
risk appears to be increased significantly by
concomitant use of gemfibrozil (Lopid).
Our ongoing scrutiny of post marketing reports of
rhabdomyolysis, including fatalities, has revealed an
increased reporting rate of rhabdomyolysis with Baycol
relative to other statins, especially when gemfibrozil
is co-prescribed. These data also suggest an increased
reporting rate of rhabdomyolysis at the 0.8 mg dose of
Baycol alone.
***
Effective immediately, Bayer has discontinued the
marketing and distribution of all dosage strengths of
Baycol. Patients who are currently taking Baycol
-2- No. 1-04-3879
should have their Baycol discontinued and be switched
to an alternative therapy." (Emphasis in original.)
Plaintiff, who consumed Baycol to lower his cholesterol,
filed a complaint on behalf of himself against defendants on
August 15, 2001. Thereafter, plaintiff filed an amended motion
for class certification. Plaintiff alleged, inter alia, that:
(1) defendant violated section 2 of the Consumer Fraud and
Deceptive Practices Act (Act)(815 ILCS 505/2 (West 2002)) by
"misrepresenting, concealing and/or omitting" information
concerning the adverse health effects of Baycol; (2) defendant
breached an implied warranty to plaintiff that Baycol was fit for
its ordinary purpose, "that being to provide safe and effective
treatment for high cholesterol"; and (3) defendant's product
subjected plaintiff to unnecessary future health risks such as
rhabdomyolysis and that such health risks required medical
monitoring.
On August 29, 2003, plaintiff gave his deposition testimony.
Plaintiff stated that after he suffered a heart attack, his
doctor prescribed Baycol to plaintiff to lower his cholesterol.
He took this medication between May 2000 and August 2001.
Plaintiff stated that he cannot recall if he read any literature
concerning Baycol. He never read any articles about Baycol,
either on the Internet or in any newspapers. Nor did he read the
-3- No. 1-04-3879
labeling or package insert for Baycol. Plaintiff testified that
he did not rely on any documents when making his decision to take
Baycol. Rather, he just “trusted his doctor.”
Plaintiff stated that at the time he took Baycol, he worked
as a mechanic in “hanger maintenance.” In this position,
plaintiff often climbed ladders, lifted items, and “maintained”
his building. Plaintiff stated that he did not seek compensation
for lost wages. He stated that the pain he suffered from Baycol
may have caused him to be less productive at work, but it did not
cause him to miss work. Specifically, plaintiff stated that he
suffered pain in his “calves and legs.” This pain went away,
according to plaintiff, when his doctor switched his prescription
to Zocor and defendant simultaneously stopped taking Baycol.
Plaintiff testified that his wife, not his doctor, told him to
stop taking Baycol. He further testified that no doctors ever
informed him that his leg pains were caused by Baycol. He stated
that he never asked a doctor whether his leg pains were caused by
Baycol because he “drew this conclusion himself.” Plaintiff also
never asked his doctor why Baycol had been withdrawn from the
market. Plaintiff further testified that he is not aware of any
increased risk to his future health from his prior use of Baycol,
and that he has not asked his doctors about this matter. He also
testified that he has no reason to believe that his future health
-4- No. 1-04-3879
is at risk from his consumption of Baycol.
Only two deposition testimonies from medical professionals
appear in the record, Dr. Robert Duncan and Dr. Jogi Nareddy.
These two physicians, called by defendant, treated plaintiff
after he sustained a heart attack. Dr. Duncan stated that
plaintiff informed him at plaintiff’s initial visit that, because
of a prior heart attack, plaintiff was taking a regimen of
aspirin, Altace, and Zocor. Dr. Duncan further stated that one
of the side effects of Zocor is an increased risk of
rhabdomyolysis, which, according to Dr. Duncan, is a "breakdown
of muscle, releasing myoglobin into the bloodstream in its most
severe cases." He further stated that: "Myoglobin is toxic to
certain organs, in particular the kidneys. In severe cases of
rhabdomyolysis, you can undergo renal failure, [and] require
dialysis. In less severe cases, you may have myalgia or muscle
aches associated with it." Dr. Duncan further stated that Zocor
was a member of the statin class of drugs. All statin drugs
carry the risk of rhabdomyolysis according to Dr. Duncan. He
nevertheless prescribes statin drugs because, in his view, "[t]he
benefits of lowering cholesterol way outweigh the risks of a
very, very rare event taking place, which would be rhabdomyolysis
or other aches and pains, which people can normally tolerate."
Dr. Duncan stated that though he was not aware that plaintiff
-5- No. 1-04-3879
formerly took Baycol while under another physician’s care, this
fact did not alter or change the way he treated plaintiff. He
stated that Baycol was a member of the statin class of drugs,
which many of his patients were on prior to its removal from the
market. He stated that he would have prescribed a nonstatin drug
to plaintiff if his liver function tests were not within normal
range. This was not the case, however. Dr. Duncan also stated
that myopathy and rhabdomyolysis are risks that are manifested
when a patient takes medication from the statin class. These
conditions, however, go away when treatment is discontinued,
according to Dr. Duncan.
Dr Nareddy testified that Dr. Duncan referred plaintiff to
him for a “cardiac follow-up.” Dr. Nareddy stated that Dr.
Duncan is a board-certified internist. Dr. Nareddy stated that
he is a board-certified internist as well as a board-certified
cardiologist. Dr. Nareddy reiterated that all statins carry the
risk of myopathy and rhabdomyolysis and that despite these risks,
he prescribes “a lot of them.” Dr. Nareddy stated that he had
determined from plaintiff’s old medical records that he had
previously had a heart attack. In addition, the records
indicated that plaintiff was on Baycol and had been “switched” to
Zocol. This fact, however, did not alter Dr. Nareddy’s treatment
of plaintiff. Nor did it necessitate any sort of “special
-6- No. 1-04-3879
testing or monitoring” of plaintiff. Dr. Nareddy stated that he
performed liver tests on plaintiff because of his Zocor
treatment. These tests, however, were not performed because of
his prior Baycol treatment. Dr. Nareddy further testified that
plaintiff never complained to him of any side-effects from his
prior use of Baycol, particularly leg pains.
On December 15, 2003, the trial court entered a written
order denying plaintiff's motion for class certification. In so
doing, the court reasoned that common questions of law and fact
did not predominate over individual issues. For instance, in
regard to the class action for consumer fraud, the court noted
that the state statutes for class actions for consumer fraud have
vastly different requirements for the elements of proof, i.e.,
"the burden of persuasion required to prove scienter differs from
state to state." Furthermore, the notice requirements for a
breach of warranty claim also differed significantly from state
to state, according to the trial court's order. In regard to the
class action claim for medical monitoring, the court concluded
that the development of medical monitoring was too "embryonic"
for any commonality to be found.
The court also found no factual commonality. For instance,
the consumer fraud count, according to the court, would involve
individual factual questions regarding reliance on defendant's
-7- No. 1-04-3879
alleged concealment of Baycol's safety. In regard to the medical
monitoring claim, the court stated that "[e]ach class members'
individual medical condition would have to be monitored based on
that class members’ prior medical condition." In regard to the
breach of implied warranty claims, the court noted that "the
question whether Baycol lowered a class member's cholesterol or
harmed him would be a question individual to each class member."
On January 7, 2004, defendant filed a motion for summary
judgment concerning plaintiff’s individual claims, which the
trial court granted as well. In granting defendant's motion, the
court reasoned that plaintiff's implied warranty claim lacked
merit because plaintiff failed to prove that he had privity with
defendant and that he provided actual notice of breach to
defendant. Concerning plaintiff's medical monitoring claim, the
court stated: "As there is no evidence that [plaintiff] is in
need of future medical monitoring due to his past use of Baycol,
Bayer is entitled to summary judgement ***. [Plaintiff's]
speculation does not constitute evidence." Regarding plaintiff's
consumer fraud claim, the court stated that defendant was
entitled to summary judgment because plaintiff failed to
demonstrate that he was actually deceived by any deceptive
practice by defendant.
Plaintiff then filed a motion for reconsideration of the
-8- No. 1-04-3879
trial court's dismissal of plaintiff’s individual claims, which
the trial court stayed on September 14, 2004. In the hearing
attendant to the order the court remarked:
"Plaintiff argues that [the trial court] denied
certification of a nationwide class and that a class of
Illinois residents could still be named.
However, plaintiff has not presented anything to
this Court showing that the certification of such a
class would be more likely [than a national class].
So it is still an open issue. *** So if you
chose to do that, you should present something to me."
The court's written order staying plaintiff's motion
further stated: "Plaintiff is given 21 days to October 6, 2004,
to file a motion for leave to file an amended complaint or other
pleading, adding a plaintiff class representative for an Illinois
class only."
Plaintiff subsequently filed his motion to file an amended
complaint, arguing that a statewide class would be more likely
certified than a nationwide class because "applying Illinois law
to the putative Illinois class would resolve the alleged
manageability concerns." The motion did not address the
requirement in the trial court's order that the motion name a new
Illinois class representative.
-9- No. 1-04-3879
Denying defendant’s motion for reconsideration, the court
stated, in relevant part:
"Plaintiff argues that this court should allow a substitute
plaintiff. *** Plaintiff, however, has not presented
anything to this court showing that the certification of
such a class would be anymore likely [than a nationwide
claim]."
The trial court also amplified its original ruling concerning
plaintiff's breach of implied warranty claim by stating:
"Plaintiff once again argues that he is not required to
establish vertical privity ***. Plaintiff is wrong.
Plaintiff is asserting a claim for economic losses, not
for personal injury. Plaintiff's allegation that he
suffered leg cramps is irrelevant. He is not bringing
a claim for damages suffered from his leg cramps. Our
supreme court has clearly held that claims for economic
losses are subject to the requirement of privity."
The court also clarified its original reasoning concerning
plaintiff's medical monitoring claim:
"Plaintiff *** argues that this court erred in granting
summary judgment on his medical monitoring claim.
Plaintiff, however, still offers no evidence that he is in
need of medical monitoring. Plaintiff's treating physicians
-10- No. 1-04-3879
testified that Plaintiff is not in need of medical
monitoring due to taking Baycol. It is plaintiff's burden
to come forth with some evidence, not speculation, of his
need for medical monitoring to survive summary judgment.
There is no such evidence in the record and no genuine issue
of material fact to be decided."
This appeal followed.
II. Summary Judgment Standard
We review summary judgment orders de novo. State Farm
Mutual Automobile Insurance Co. v. Universal Underwriters Group,
285 Ill. App. 3d 115, 120 (1996). Summary judgment should be
granted when "the pleadings, depositions, and admission on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact" and the moving "party is
entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c)
(West 2002). However, summary judgment is a drastic measure and
should only be granted when the moving party's right to judgment
is clear and free from doubt. Bourgonje v. Machev, 362 Ill. App.
3d 984, 995 (2005).
III. ANALYSIS
A. Consumer Fraud Claim
We first address the contention that the trial court erred
by granting summary judgment in favor of defendant on plaintiff’s
-11- No. 1-04-3879
consumer fraud claim. Plaintiff alleges that defendant violated
the Consumer Fraud Act by concealing Baycol's safety risks from
the public.
The Act provides that “ ‘deceptive acts or practices *** or
the concealment, suppression or omission of any material fact,
with intent that others rely upon the concealment, suppression or
omission of such material fact *** in the conduct of any trade or
commerce are hereby declared unlawful.’ ” Avery v. State Farm
Mutual Insurance Co., 216 Ill. 2d 100, 179 (2005), quoting 815
ILCS 505/2 (West 1998). To prove a private cause of action under
the Act, a plaintiff must establish: “(1) a deceptive act or
practice by the defendant, (2) the defendant’s intent that the
plaintiff rely on the deception, (3) the occurrence of the
deception in the course of conduct involving trade or commerce,
and (4) actual damage to the plaintiff, (5) proximately caused by
the deception.” Avery, 216 Ill. 2d at 180, citing Oliveira v.
Amoco Oil Co., 311 Ill. App. 3d 886, 898 (2000).
The Act indicates that sellers have a duty not to conceal or
suppress known material facts regarding products from potential
buyers. Miller v. William Chevrolet/Geo, Inc., 326 Ill. App. 3d
642, 658 (2001); Totz v. Continental Du Page Acura, 236 Ill. App.
3d 891, 902 (1992). In the present case, plaintiff claims that
defendant omitted material facts concerning Baycol's safety. For
-12- No. 1-04-3879
liability to attach due to an alleged concealment, a plaintiff
must establish that the fact concealed was known to the seller at
the time of concealment. Miller, 326 Ill. App. 3d at 658.
Moreover, a plaintiff must establish that defendants intended
that they rely on the suppression in making their choice to buy.
Miller, 326 Ill. App. 3d at 658.
In the case sub judice, plaintiff points to nothing in the
record evidencing an intent to conceal information from the
public. Plaintiff’s sole piece of evidence, defendant’s
announcement that it intended to remove Baycol from the market,
does not indicate an intent to conceal. The most natural and
unstrained interpretation of defendant’s statement, in our view,
indicates that defendant’s ongoing monitoring of Baycol revealed
that Baycol may no longer be safe to the public. This is not an
admission, either implicitly or explicitly, that defendant
concealed the safety of its product from the public. On a motion
for summary judgment, plaintiff must produce some evidence in
favor of its claim. See, e.g., Petrik v. Monarch Printing Corp.,
143 Ill. App. 3d 1, 4 (1986) (noting that to survive a motion for
summary judgment, a plaintiff "cannot rest upon his complaint,
but must submit affidavits and other documentary evidence to
create an issue of fact"). For the reasons outlined above, we
conclude that plaintiff failed in this endeavor.
-13- No. 1-04-3879
Furthermore, it is a well-established principle of law that
a recall announcement is not an admission of fault. See, e.g.,
Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59, 64
(1997)("the taking of precautions against the future, such as
issuance of recall letters, cannot be construed as an admission
of responsibility for the past"). Similarly, we do not view a
recall announcement as evidence of concealment, particularly
since even a strained interpretation of defendant's announcement
could not be construed as an admission of concealment. An
unstrained interpretation of the statement merely reveals that,
as a precautionary measure, defendant decided to recall Baycol
from the market. Under plaintiff's interpretation of the Act,
any recall announcement, such as in the present case, would
provide a prima facie case for concealment. This result, in our
view, constitutes an unsupportable and unreasonable extension of
the Act. We therefore decline to adopt it. See, e.g., Estate of
Heanue v. Edgcomb, 355 Ill. App. 3d 645, 650 (2005) (“Statutes,
of course, must be construed to avoid absurd results”).
Similarly problematic, plaintiff provides no support for such an
extension of the Act and we therefore need not consider it.
Washington v. Caseyville Health Care Ass’n, 284 Ill. App. 3d 97,
102 (1996).
Plaintiff's claim also lacks merit because of his inability
-14- No. 1-04-3879
to show that he was actually deceived by any omission made by
Bayer. Our supreme court has explicitly stated that a plaintiff
pursuing a consumer fraud claim for an alleged omission must show
that he was deceived by the omission. Avery v. State Farm Mutual
Automobile Insurance Co., 216 Ill. 2d 100, 200 (2005) ("Proximate
causation is an element of all private causes of action under the
Act. Thus, [the plaintiff] must establish that he was deceived
by [the defendant's] representations or omissions"). Here, there
is no evidence of an omission; thus, we fail to see how any
actual deception can be shown.
B. Breach of Implied Warranty Claim
We next address plaintiff's argument that the trial court
erred by dismissing his breach of warranty claim. The trial
court dismissed this claim for two reasons: first, plaintiff
failed to establish privity with defendant; second, plaintiff
failed to provide sufficient notice to defendant. On appeal,
plaintiff argues that notice and privity were sufficient because
he suffered a personal injury, which is an exception to the
general notice and privity requirements for breach of warranty
claims.
In order for a plaintiff to file a claim for economic
damages under the Uniform Commercial Code (UCC)(810 ILCS 5/1-101
et seq. (West 2002)) for the breach of an implied warranty, he or
-15- No. 1-04-3879
she must be in vertical privity of contract with the seller.
Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 292 (1988);
Szajna v. General Motors Corp., 115 Ill. 2d 294, 311 (1986).
"This means that 'the UCC article II implied warranties gives a
buyer of goods a potential cause of action only against his
immediate seller.' " Mekertichian v. Mercedes-Benz U.S.A.,
L.L.C., 347 Ill. App. 3d 828, 832 (2004), quoting Rothe v.
Maloney Cadillac, Inc., 119 Ill. 2d 288, 292 (1988). Thus,
plaintiff would only have a cause of action for breach of implied
warranty of merchantability against the entity from which he
purchased Baycol and not against defendant. Here, plaintiff
acknowledged in his interrogatory answers that he purchased
Baycol directly from a pharmacy and not defendant. Thus,
plaintiff's suit should have been brought against this pharmacy.
Plaintiff argues that he may obviate the privity requirement
because of his personal injury allegation. We are not persuaded.
Although a plaintiff may be excepted from the privity requirement
by suing for personal injury (Perona, 292 Ill. App. 3d at 64),
plaintiff here has not bought an action for personal injury.
Plaintiff alleges in his complaint that "Defendant[] breached
this warranty of merchantability by selling Baycol as being fit
for its ordinary purpose when, in fact, it was not." In other
words, though he allegedly suffered personal injury, he is not
-16- No. 1-04-3879
suing for personal injury nor does he seek compensation for any
alleged personal injury. Indeed, during oral argument concerning
class certification, plaintiff's counsel admitted as much by
stating that plaintiff's class "[d]oes not seek to include
personal injury claims. *** There are financially injured
people. And those are the people [plaintiff] chooses to
represent." Thus, plaintiff, by his own admission, is suing for
purely economic loss. See Lowe v. Kang, 167 Ill. App. 3d 772,
776 (1988) (holding that an attorney is the client's agent and
statements made by the attorney are binding on the client). He
therefore was required to prove privity but could not. Thus, the
trial court correctly granted summary judgment on that basis.
In light of our conclusion that plaintiff failed to
establish privity with Bayer, thereby forfeiting his implied
warranty claim, we need not address defendant's argument that the
plaintiff provided insufficient notice for his implied warranty
claim.
C. Medical Monitoring Count
We next address plaintiff's contention that the trial court
erred by granting summary judgement in favor of defendant on
plaintiff's medical monitoring claim. Specifically, plaintiff
argues in his briefs that "Baycol exposed him and other putative
-17- No. 1-04-3879
class members to an increased risk of developing rhabdomyolysis,"
and that his medical monitoring claim was therefore a "viable
claim."
Defendant argues that no Illinois state case has addressed
whether a cause of action sounding in medical monitoring exists
in Illinois, where the plaintiff asserts no claim for present
personal injury and does not seek recovery for personal injury.
Plaintiff, in his reply brief, cites to Carey v. Kerr-McGee
Chemical Corp, 999 F. Supp. 1109, 1119-20 (N.D. Ill. 1998), and
Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95, 100-02
(2003), for the proposition that a claim for medical monitoring
exists in Illinois without proof of present physical injury. In
Carey, the court addressed whether Illinois law provides for a
claim for medical monitoring to detect the onset of physical harm
in the absence of any showing of present physical harm. The
court determined that if the Illinois Supreme Court confronted
this issue, allowing medical monitoring claims would not conflict
with Illinois law. Carey, 999 F. Supp. at 1120. The appropriate
inquiry for such a claim, according to the Carey court, would be
whether "medical monitoring is, to a reasonable degree of medical
certainty, necessary in order to diagnose properly the warning
signs of disease." Carey, 999 F. Supp. at 1119.
Assuming, arguendo, that our supreme court would recognize
-18- No. 1-04-3879
such a claim, the trial court nevertheless would have been
justified in granting an order of summary judgment in favor of
defendant because plaintiff failed to produce any evidence in
support of such a claim other than his own bald allegation.
Plaintiff presented no evidence to the effect that "medical
monitoring is, to a reasonable degree of medical certainty,
necessary in order to diagnose properly the warning signs of
disease." Carey, 999 F. Supp. at 1119. To survive a motion for
summary judgement, a plaintiff "cannot rest upon his complaint
create an issue of fact." Petrik v. Monarch Printing Corp., 143
Ill. App. 3d 1, 4 (1986). Here, plaintiff offers nothing in
support of his medical monitoring claim other than his own
allegation that Baycol caused him leg cramps. This allegation is
insufficient to survive summary judgment. Towner v. Board of
Education, 275 Ill. App. 3d 1024, 1031 (1995) (to survive summary
judgment, a plaintiff must offer "evidence, as opposed to mere
allegations"). Indeed, the evidence in the record seems to
invite a different conclusion. Plaintiff's own doctors testified
that no future medical monitoring would be necessary for
plaintiff.
Moreover, the plaintiff failed to mention in his initial
brief, or to the trial court below, the principle explained in
-19- No. 1-04-3879
Carey; namely, that a plaintiff may bring a claim for medical
monitoring if plaintiff shows, "to a reasonable degree of medical
certainty, [that medical monitoring] is necessary in order to
diagnose properly the warning signs of disease." Plaintiff
therefore forfeited such an argument. Daniels v. Anderson, 162
Ill. 2d 47, 58 (1994), quoting Kravis v. Smith Marine, Inc., 60
Ill. 2d 141, 147 (1975) (" ‘an issue not presented to or
considered by the trial court cannot be raised for the first time
on review’ "); see also People v. Patel, 366 Ill. App. 3d 255,
268 (2006) ("It is well settled that points not argued in
appellant's opening brief are waived and shall not be raised in
the reply brief").
We are similarly unpersuaded by plaintiff's reliance on
Lewis. The plaintiff in Lewis sought compensation for the cost
of medical testing made necessary by the defendant's
manufacturing, marketing, and sale of a lead pigment. Lewis, 342
Ill. App. 3d at 101. We consider Lewis to be inapplicable
because there, unlike here, the plaintiff sought compensation for
medical testing to detect a present physical injury. Lewis, 342
Ill. App. 3d at 101 ("In this case *** we are faced with the ***
question of whether the cost of diagnostic testing to detect a
possible injury *** is initself a present [compensable] injury").
Thus, the court did not address the question posed by plaintiff
-20- No. 1-04-3879
here; namely, whether a plaintiff may bring a claim for medical
monitoring for potential future harm, where no present injury is
shown.
Based on our conclusion that plaintiff's individual claims
lacked merit, we believe that the trial court properly denied
plaintiff's motion for class certification because plaintiff was
an inadequate representative. See Landesman v. General Motors
Corp., 72 Ill. 2d 44, 48 (1978) (stating that class certification
requires that "the named representative[] of the putative class
possess[] a valid cause of action” against defendant).
D. Plaintiff's Motion for Leave to File an Amended Complaint
Plaintiff contends that the trial court erred in denying his
motion for leave to file an amended complaint or other pleadings
adding a plaintiff class representative for an Illinois class.
The trial court allowed plaintiff leave to file an amended
complaint for an Illinois-only class with two conditions: first,
that plaintiff establish that a statewide class was more likely
to be certified than a nationwide class; second, that plaintiff
join a new class representative. We do not believe the denial of
plaintiff’s motion constituted reversible error. A reviewing
court will reverse a trial court's order concerning a motion for
leave to file an amended complaint only if a clear abuse of
discretion is shown. Orr v. Shepard, 171 Ill. App. 3d 104, 109
-21- No. 1-04-3879
(1988).
Here, plaintiff failed to meet either of the trial court's
stipulations discussed above. Though plaintiff, in his motion
for leave to file an amended complaint, stated that "applying
Illinois law to the putative Illinois class would resolve the
alleged manageability concerns," plaintiff did not explain how
the trial court's alleged manageability concerns would be
resolved by an Illinois class. Thus, plaintiff's attempt to
address the trial court's concern was conclusory and by no means
illuminative. Moreover, the motion failed to name a new class
representative, an explicit requirement stated by the trial court
in its order. We therefore see no abuse of discretion in the
trial court’s disposition of the matter.
Conclusion
For the foregoing reasons, we affirm the trial court's order
granting summary judgement in favor of defendant and the denial
of the motion for class certification.
McNULTY and JOSEPH GORDON, JJ., concur.
-22-