TERESA DE BOUSE, Indiv. and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. BAYER AG et al., Defendants-Appellants.
Fifth District No. 5—06—0077
Appellate Court of Illinois, Fifth District
May 9, 2007
Rehearing denied June 13, 2007
373 Ill. App. 3d 774
Accordingly, the decision to deny the reimbursement of expenses under
Affirmed in part and reversed in part; cause remanded.
CHAPMAN and STEWART, JJ., concur.
Jeffrey Baron, of Blackwell Sanders Peper Martin, LLP, of St. Louis, Mis-
John E. Galvin and Jonathan H. Garside, both of Fox Galvin, LLC, of St. Louis, Missouri, for appellants SmithKline Beecham Corporation and GlaxoSmithKline, PLC.
John J. Driscoll, of Brown & Crouppen, P.C., of St. Louis, Missouri, for appellee.
JUSTICE DONOVAN delivered the opinion of the court:
A class action complaint sounding in consumer fraud was filed in the circuit court of St. Clair County by the plaintiff, Teresa De Bouse, individually and on behalf of all others similarly situated, alleging that Bayer AG, Bayer Corp., SmithKline Beecham Corp., doing business as GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever (the defendants) committed common law fraud and violated the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (
A. Jurisdiction and the Class Certification Order
The defendants filed their petition for leave to appeal the class certification order pursuant to
The record shows that a hearing was held on the plaintiff‘s motion
The record shows that the parties appeared in open court on September 27, 2005, and December 29, 2005, in relation to the summary judgment motion that had been filed in the case. The order entered after the hearing on September 27, 2005, specifically states that all parties appeared by counsel on that date. The parties also appeared for a status conference on January 11, 2006.
On January 25, 2006, the defendants filed a motion to vacate or amend the class certification order nunc pro tunc on the grounds that they had not received notice of the entry of the order granting class certification, that the circuit court clerk failed to serve a copy of the order on all parties and failed to note any service in the file as required under Twentieth Judicial Circuit Rule 2.06 (20th Judicial Cir. Ct. R. 2.06 (eff. December 12, 1991)), and that they made diligent efforts to monitor the court file once the motion had been taken under advisement by the court. The defendants asserted that they first became aware that the order had been entered during the status conference on January 11, 2006, that their right to appeal was “severely prejudiced,” and that the circuit court had the authority to enter a nunc pro tunc order to avoid the prejudice. The defendants attached affidavits from the defendants’ attorneys and their staff members. The affidavits outlined the efforts undertaken to monitor the court file.
The plaintiff filed a response in opposition to the defendants’ motion for an order nunc pro tunc. Therein, the plaintiff stated that her attorneys had obtained a copy of the class certification order by appearing in person at the circuit clerk‘s office on or about September 5, 2005, and making an inquiry about the status of the class certification motion. The plaintiff attached affidavits from its attorneys and a copy of the computerized docket sheet that revealed an entry of September 2, 2005, referencing a 12-page order.
On January 30, 2006, the court held a hearing on the defendants’ motion to vacate or amend the class certification order nunc pro tunc.
“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.
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
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. Mitch-ell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 632 N.E.2d 1010 (1994); Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 565 N.E.2d 929 (1990).
In Mitchell v. Fiat-Allis, Inc., the trial court signed an order disposing of the case on February 27, 1991. The order was file-stamped March 1, 1991, and included instructions to the circuit court clerk to send a copy of the order to the attorneys of record. Mitchell‘s attorney first learned of the order on April 25, 1991. After conferring with opposing counsel and the trial court, Mitchell‘s counsel filed a petition to withdraw or vacate the order. On April 29, 1991, the trial court granted the petition, withdrew the judgment dated February 27, 1991, and reentered the same order, effective April 29, 1991. The appellate court upheld jurisdiction and considered the merits of the appeal. The Illinois Supreme Court reversed, finding that the trial court lacked authority to vacate and reenter its order more than 30 days after it had been entered. The supreme court held that trial courts lacked the authority to excuse compliance with the supreme court rules governing the time for filing a notice of appeal. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012.
The supreme court had clearly stated that the parties bear the responsibility to monitor the status of a case and that this responsibility is not lessened where the circuit clerk fails to give notice of the entry of the order. Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 127, 565 N.E.2d at 931; Fiat-Allis, Inc., 158 Ill. 2d at 151, 632 N.E.2d at 1013. Actual notice is not required so long as the order appealed from was expressed publicly, in words, at the situs of the proceeding. Fiat-Allis, Inc., 158 Ill. 2d at 148, 632 N.E.2d at 1012; Granite City Lodge No. 272, Loyal Order of the Moose, 141 Ill. 2d at 123, 565 N.E.2d at 929.
The facts in the case at bar are similar to those in Fiat-Allis, Inc. Here, a typewritten order granting class certification was entered into the court file on September 2, 2005, and its entry was noted in the computerized docket. The defendants indicated that they first learned of the order on January 11, 2006, months after the time for filing a petition for leave to appeal had passed. They filed a motion to vacate or amend the certification order nunc pro tunc on January 25, 2006. On January 30, 2006, the trial court entered an order vacating nunc pro tunc the order entered September 2, 2005, and amended it to be entered January 11, 2006. In our view, the decision in Fiat-Allis, Inc. is controlling under the facts of the case, and thus, the trial court lacked authority to vacate and reenter the same order more than 30 days after it had been originally entered in order to excuse compliance with the filing requirements of
Furthermore, the record belies the defendants’ assertions that they detrimentally relied on local rule 2.06 and that they were prejudiced by the circuit clerk‘s noncompliance with the rule. In the pleadings and affidavits filed in the trial court, the defendants detailed the efforts they made to monitor the status of the class certification motion. The defendants’ attorneys stated that they assigned paralegals or other staff members to monitor the court file once the court took the class certification motion under advisement. In addition, the defendants’ attorneys appeared in open court on September 27, 2005, prior to the running of the 30-day time limit, to argue their summary judgment motion. The record shows that the defendants had ample opportunities to inspect the court file and to ascertain whether an order had been entered on the class certification motion. We find it remarkable and inexplicable that the attorneys did not inquire about the status of the class certification motion when they appeared before the court on September 27, 2005. The steps taken by the defendants to monitor the court file undermine their claims of reliance on the local rule to their detriment.
The defendants claimed that the circuit court has the authority to vacate or amend and to reenter an order to avoid prejudice to the parties. In support of that contention, they cited Comdisco, Inc. v. Dun & Bradstreet Corp., 306 Ill. App. 3d 197, 713 N.E.2d 698 (1999), and Graves v. Pontiac Firefighters’ Pension Board, 281 Ill. App. 3d 508, 667 N.E.2d 136 (1996).
In Graves v. Pontiac Firefighters’ Pension Board, the trial court entered an order at the close of the evidence, stating that the case was
As we reviewed this issue, we found it noteworthy that the Fourth District declined to extend the Comdisco, Inc. decision to a case where the trial judge did not find that the plaintiff‘s failure to timely file his notice of appeal was the direct result of the court‘s not following its usual practice of mailing copies of its docket entries to the parties. Pappas v. Waldron, 323 Ill. App. 3d 330, 336, 751 N.E.2d 1276, 1280-81 (2001). The Fourth District also recently questioned whether its decision in Graves is consistent with the supreme court rules and Fiat-Allis, Inc. Berg v. White, 357 Ill. App. 3d 496, 501, 828 N.E.2d 889, 893 (2005). The few decisions in which a court has employed equitable principles to cure the mistakes of ministerial officers are limited to the specific facts and circumstances presented in those cases. The case at bar is not analogous to those cases.
Although the issue was not raised by the parties, we have also considered the propriety of the ”nunc pro tunc” order. The purpose of a nunc pro tunc order is to correct the record of the judgment, to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court. Beck v. Stepp, 144 Ill. 2d 232, 238-39, 579 N.E.2d 824, 827-28 (1991); In re Marriage of Breslow,
The situation faced by the trial court is similar to that which confronted the trial court in Fiat-Allis, Inc. In that case, the Illinois Supreme Court recognized that the circuit court‘s attempt to assist counsel was understandable and well-intentioned, but errant just the same. Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1012. The supreme court stated, “Attorneys are not excused from following the filing requirements of [the supreme court rules] merely because a judge has recommended a procedural route that lies beyond the judge‘s authority to travel.” Fiat-Allis, Inc., 158 Ill. 2d at 150, 632 N.E.2d at 1013.
In our view, Fiat-Allis, Inc. controls the present case. Each party had a responsibility to closely and adequately monitor the progress of its case and the court‘s rulings in order to ensure that the much anticipated petition for leave to file the interlocutory appeal was timely filed. That was not accomplished here. The circuit clerk‘s failure to mail copies of the order of September 2, 2005, to the parties does not excuse the untimely filing of the petition for leave to appeal. The nunc pro tunc order was not a valid means by which the circuit court could reenter the exact same order and thereby start a new 30-day period in which to file an interlocutory appeal.
The record clearly shows that the order granting class certification was a part of the court file and available for public inspection. It was also noted in a docket entry. There is no provision for extending the time for filing a petition for interlocutory appeal other than by permission of the reviewing court pursuant to
B. The Certified Questions
The defendants have devoted a considerable portion of their arguments on appeal to the circuit court‘s decision to deny the motion
The trial court concluded that the resolution of the following questions of law could materially advance the disposition of the litigation, and the court certified them for appellate review in accordance with
“I. Whether an Illinois consumer who purchases a pharmaceutical product, later withdrawn from the market because it was deemed unsafe, can maintain an action under the Illinois Consumer Fraud Act [citation], even though the pharmaceutical company did not engage in direct communication or advertising to the consumer.
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.
The issue of indirect deception was considered by the Illinois Supreme Court in Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 805 N.E.2d 213 (2004). In Shannon, the supreme court stated that
The Illinois Supreme Court has also recognized that the omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 504, 675 N.E.2d 584, 595 (1996). A material fact exists where a buyer would have acted differently if he had known the information or if the concealed fact concerned the type of information on which a buyer would be expected to rely in making a decision regarding the purchase of the product. Connick, 174 Ill. 2d at 505, 675 N.E.2d at 595.
In this case, the deception alleged in the complaint is concealment by silence.1 This type of deception falls within the coverage and the purpose of the Consumer Fraud Act. Pappas v. Pella Corp., 363 Ill. App. 3d 795, 844 N.E.2d 995 (2006). The defendants submit that the case is governed by a line of decisions in which the Illinois Supreme Court held that deceptive advertising could not be the proximate cause of damages unless the plaintiff was actually deceived by the misrepresentation, and they cite Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 835 N.E.2d 801 (2005); Price v. Philip Mor-
There is another line of cases involving concealment by silence. In those types of cases, the courts have found it sufficient where there was proof that the defendant‘s deception, whether made directly or indirectly, was committed with the intent that it influence the plaintiff‘s action and that if the plaintiff had known of the concealed information, she would not have purchased the product. Connick, 174 Ill. 2d at 504-05, 675 N.E.2d at 595; Pappas, 363 Ill. App. 3d at 804-06, 844 N.E.2d at 1003-04.
The contrasts in the aforementioned cases demonstrate that for purposes of satisfying the elements of a cause of action under the Consumer Fraud Act, there is a very fine but significant distinction between cases involving an affirmative deception and a deception by concealment. As to the case at bar, the plaintiff‘s action falls within the latter category.
Following the reasoning and bases underlying the decisions in Shannon and Connick, we answer the first and third questions in the affirmative. The second question, as drafted, appears to be a mixed question of fact and law and, therefore, not a proper question under
C. Summary and Conclusion
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
Rule 306(a)(8) appeal dismissed; certified questions answered in part; cause remanded.
CHAPMAN, J., concurs.
PRESIDING JUSTICE WELCH, dissenting:
I respectfully dissent. I believe the circuit court erred in denying
An overview of the complaint and its allegations, as well as the defendants’ motion for a summary judgment, is necessary for a full understanding of my position. This is a class action seeking money damages for the purchase price paid by the plaintiff for Baycol. According to the first amended complaint, the plaintiff was prescribed, purchased, and used Baycol, a drug manufactured, marketed, promoted, and sold by the defendants. The action is brought on behalf of all individuals who have purchased Baycol but excludes any of those individuals who have or had an action for damages for personal injuries or death suffered as a result of using Baycol. Counts I and III of the first amended complaint are brought pursuant to the Consumer Fraud and Deceptive Business Practices Act (the Act) (
The complaint alleges that the defendants knowingly, intentionally, and/or recklessly concealed from government regulators, the medical community, and consumers known risks and dangers associated with the use of Baycol, while at the same time exaggerating its efficacy, with the intent to cause consumers to purchase Baycol. The plaintiff alleges that the defendants knew of serious risks and dangers associated with the use of Baycol and knowingly and intentionally omitted from their promotional material and advertisements these known risks and dangers. The complaint states that in deciding whether to prescribe, recommend, and purchase Baycol, the medical community, health care insurers, and consumers, including the plaintiff, reasonably relied on these promotional materials and advertisements, which omitted and concealed the known risks and dangers of Baycol. The complaint alleges that had consumers and physicians, including the plaintiff and/or her physician, known of these risks and dangers, they would not have prescribed or purchased Baycol.
Count I alleges that the mere act of offering Baycol for sale as a consumer product is a representation that the product is reasonably safe for its intended purpose and that the defendants knowingly and intentionally concealed the known risks and dangers of Baycol with the intent that the plaintiff purchase Baycol. The complaint alleges that the plaintiff was actually deceived and suffered actual damages in that she spent money to purchase the drug which she would not have spent had she known of the risks and dangers associated therewith.
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 plaintiff alleges that in so acting, the defendants committed one or more unfair acts or practices within the meaning of the Act. Count III seeks damages “in an amount equal to the difference between the price charged for Baycol and the fair market value which Baycol would have had but for [the defendants‘] omissions, suppressions, and/or concealments.”
Count II alleges common law civil conspiracy based on the above violations of the Act.
The defendants filed a motion for a summary judgment based primarily on the deposition testimony of the plaintiff that prior to purchasing Baycol she had not seen, read, or heard anything about the product and that she had relied solely on her physician‘s judgment and not on any representation or misrepresentation of the defendants in purchasing the product. Accordingly, the plaintiff was not, and could not have been, actually deceived by any representation, misrepresentation, or concealment by the defendants, and any such deception could not have been the proximate cause of the plaintiff‘s damages. Additionally, with respect to count III, the defendants argued that the plaintiff‘s theory of damages, which the defendants call a “market theory” of damages, has been rejected by the Illinois Supreme Court. Finally, with respect to count II, the defendants argued that they are entitled to a summary judgment because civil conspiracy is not an independent tort but must be premised on the commission of an underlying independent wrong, in this case a violation of the Act.
The plaintiff responded that, even if the plaintiff did not see or hear any promotional materials or advertisements for Baycol, the mere act of offering the product for sale is a representation to the plaintiff that it is safe for its intended use, that the defendants knew that this was not true and concealed the true risks and dangers of Baycol, and that the plaintiff relied on the defendants’ concealment when purchasing the product. Accordingly, the plaintiff argued, she was actually deceived and this actual deception was the proximate cause of her damages. Furthermore, the plaintiff argued that proximate causation is established based on concealment from medical providers of the true risks and dangers of Baycol, which concealment
Preliminarily, I would decline to address the questions as identified by the circuit court pursuant to
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 (
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 (
In Zekman, a case remarkably similar to the case at bar, the plaintiff filed a class action against AT&T and alleged violations of the Act, after he had received a series of mailings from Direct American Marketers, Inc., indicating that he had won a prize. While it was possible to respond by mail, each mailing urged the recipient to telephone a “900” number to claim the prize. Of course, by calling the “900” number the recipient incurred a charge. This charge and the option to respond by mail were stated in the mailing, although usually in less conspicuous type. The plaintiff made numerous calls to the “900” numbers but won only nominal prizes of discount coupons. AT&T billed the plaintiff for the telephone charges and retained a percentage of each charge for itself; most of each charge went to the direct marketer.
In his deposition, the plaintiff admitted that he knew, prior to placing the calls to the “900” numbers, both that he could have responded by mail and that he would be charged for the calls. Upon placing the calls, the plaintiff was further informed that he would be charged and could hang up immediately without being charged. The plaintiff made at least 24 such telephone calls. The plaintiff‘s complaint alleged that AT&T obtained money by means of a deceptive practice under the Act.
In its motion for a summary judgment, AT&T argued that the plaintiff‘s deposition testimony demonstrated that the plaintiff had not been actually deceived by the mailings or the telephone bills and that the plaintiff therefore could not establish that any of AT&T‘s alleged misconduct had caused him injury. AT&T argued that the plaintiff‘s deposition testimony established that the conduct complained of was not the proximate cause of any harm, as the Act requires.
In affirming the summary judgment for AT&T, the supreme court pointed out that section 10a(a) of the Act, which governs private causes of action under the Act, mandates that an individual‘s damages be “‘a result of a violation of [the] Act.‘” Zekman, 182 Ill. 2d at 373, quoting
Similarly, the plaintiff‘s deposition testimony in the case at bar establishes that the conduct complained of was not the proximate cause of her injury. The plaintiff‘s deposition testimony precludes her from establishing that the alleged misconduct of the defendants proximately caused her damages. The plaintiff testified unequivocally in deposition that in purchasing Baycol she relied exclusively on her physician‘s advice and that prior to purchasing it she had never heard, read, or seen anything about the product and knew nothing about it. She had never heard, read, or seen any information regarding the effectiveness of Baycol or the presence or absence of any risks or dangers associated with the medication. She was not deceived by the defendants. Based on the testimony of the plaintiff at her deposition, I do not believe that there remains a genuine issue of material fact regarding whether the alleged violations of the Act by the defendants proximately caused her damage, for the plaintiff‘s testimony demonstrates that she was not deceived by the defendants’ actions.
Nevertheless, count I of the plaintiff‘s complaint alleges that, regardless of whether she ever saw, heard, or read any promotional materials or advertisements about Baycol, the defendants’ mere act of selling the drug constitutes a representation that it is safe for its intended purpose and that the plaintiff relied on this false representation in purchasing Baycol. I point out initially that the allegation that the mere act of selling the drug constitutes a representation that it is safe for its intended purpose is a legal conclusion and not an allegation of fact. Accordingly, it need not be accepted as true. See Kubik v. CNA Financial Corp., 96 Ill. App. 3d 715, 719 (1981). In any event, most, if not all, prescription medications carry some risks and dangers.
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.)
In Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100 (2005), a plaintiff‘s cause of action under the Act failed in part because he was unable to prove actual damage. That case involved a claim that the defendant had violated the Act by failing to disclose its policy of substituting nonoriginal equipment manufacturer parts for original manufacturer parts when repairing insured vehicles. The supreme court held that the claim of the named plaintiff DeFrank must fail because he failed to allege or prove actual damage. DeFrank testified that, subsequent to repairs made under his insurance contract with State Farm Mutual Automobile Insurance Company in which nonoriginal equipment manufacturer parts were used, he sold his vehicle in an 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
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 purchasers of the gasoline, regardless of whether they were aware of the ads at the time of purchase. The plaintiff advanced what the supreme court referred to as a “market theory” of causation. The deceptive ads increased demand, which drove up the price. All purchasers of the premium gasoline paid an increased price because of the allegedly deceptive ads, regardless of whether they had seen or relied upon the advertisement at issue. As in the case at bar, the remedy sought was the recovery of the difference between the artificially inflated price and the price that would have been paid absent the deception.
In rejecting the plaintiff‘s theory of causation, the Illinois Supreme Court reaffirmed that in order to prevail on a claim brought under section 10a(a) of the Act, a private individual must plead and prove actual damage proximately caused by the deception. Oliveira, 201 Ill. 2d at 149. The court concluded that its decision in Zekman controlled. In Zekman, the plaintiff‘s claim failed as a matter of law because he was not actually deceived. Oliveira, 201 Ill. 2d at 154. Similarly, in Oliveira, the supreme court found that the plaintiff‘s complaint failed to
“Plaintiff does not allege that he was, in any manner, deceived by defendant‘s advertisements. Plaintiff does not allege that he received anything other than what he expected to receive when he purchased defendant‘s gasoline, i.e., a certain amount of gasoline, with a certain octane level, for the price listed on the pump. Indeed, plaintiff could not allege that defendant‘s advertisements deceived him or misled him as to what he was receiving when he made his purchase. Because plaintiff does not allege that he saw, heard[,] or read any of defendant‘s ads, plaintiff cannot allege that he believed that he was buying gasoline which benefitted the environment or improved engine performance.” Oliveira, 201 Ill. 2d at 154-55.
Similarly, in the case at bar the plaintiff cannot establish that she was, in any manner, deceived by the defendants’ conduct. Nor can she establish that she received anything other than what she expected to receive when she purchased the defendants’ medication, a medication which was prescribed by her physician and which might very well have effectively worked to lower the plaintiff‘s cholesterol. The plaintiff admitted that she never saw, heard, or read any information about Baycol prior to purchasing it and that she relied entirely on the advice of her physician in purchasing it. Accordingly, the plaintiff cannot establish that she suffered actual damage proximately caused by the defendants’ alleged deception.
A similar decision was reached in Shannon v. Boise Cascade Corp., 208 Ill. 2d 517 (2004). In that case the plaintiffs filed a class action under the Act against the manufacturer of composite siding and alleged that it had deceptively advertised its product. Admissions in all of the plaintiffs’ depositions established that none had received any representations regarding the product from the defendant. The complaint did not allege that any named builder, architect, or engineer had received any product literature or that any plaintiff had communicated with any builder, architect, or engineer who had received product literature. The complaint set forth a “market theory” of causation similar to that put forth in Oliveira. The circuit court granted the defendant a summary judgment on the basis that the plaintiffs had not been aware of the defendant‘s advertising and that the claimed damages were not proximately caused by the alleged deceptive advertising.
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
Of particular relevance to the case at bar is the supreme court‘s statement in Shannon, 208 Ill. 2d at 525-26, that although proof of actual deception of a plaintiff is required, that is not to say that the deception must always be direct between the defendant and the plaintiff to satisfy the requirement of proximate cause under the Act. The court stated that if the product literature had in fact deceived a particular builder, architect, or contractor, resulting in the installation of defective siding on a home, the damage could arguably have occurred as a result of the indirect deception, as required by the Act. In those circumstances, the purchaser, who might have no independent knowledge of the qualities or expected performance standards of siding, is deceived because of the deception of the builder, architect, or contractor, who reasonably should have 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 the plaintiffs in Shannon could. I believe that the circuit court erred in denying the defendants’ motion for a summary judgment on count III.
Finally, count II sounds in common law civil conspiracy, which is not an independent tort but rises or falls with the plaintiff‘s claims under the Act. See Indeck North American Power Fund, L.P. v. Norweb PLC, 316 Ill. App. 3d 416, 432 (2000). Accordingly, a judgment in the
Having found that the trial court erred in denying the defendants’ motion for a summary judgment and having reversed that order, I would have found it unnecessary to address the issues relating to class certification.