De Bouse v. Bayer Ag

• Decision Date: 09 October 2008
• Docket Number: No. 5-06-0077.,5-06-0077.
• Citation: 896 N.E.2d 882,385 Ill. App. 3d 812
• Parties: Teresa DE BOUSE, Individually and On Behalf of Others Similarly Situated, Plaintiff-Appellee, v. BAYER AG, Bayer Corporation Smith-Kline Beecham Corporation, d/b/a GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

896 N.E.2d 882

385 Ill. App. 3d 812

Teresa DE BOUSE, Individually and On Behalf of Others Similarly Situated, Plaintiff-Appellee, v. BAYER AG, Bayer Corporation Smith-Kline Beecham Corporation, d/b/a GlaxoSmithKline, GlaxoSmithKline PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever, Defendants-Appellants.

No. 5-06-0077.

Appellate Court of Illinois, Fifth District.

October 9, 2008.

Katherine M. Fowler, Terry Lueckenhoff, St. Louis, MO; Stephen C. Carlson, J. Randal Wexler, Charles K. Schafer, Sidley Austin LLP; Andrew Goldman, Phillip Beck, Bartlit Beck Herman Palenchar & Scott, Chicago, IL, for appellant Bayer AG, Bayer Corp., Marcy Grim, Michael Lever.

John E. Galvin, Jonathan H. Garside, Fox Galvin, LLC, St. Louis, MO, for appellant SmithKline Beecham Corp., d/b/a GlaxoSmithKline, GlaxoSmithKline PLC.

John J. Driscoll, Brown & Crouppen, P.C., St. Louis, MO; Christopher Cueto, Law Office of Christopher Cueto, P.C., Belleville, IL, 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 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. 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, 311 Ill.Dec. 691, 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, 311 Ill.Dec. 691, 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, 311 Ill.Dec. 691, 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, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007). De Bouse v. Bayer AG, 226 Ill.2d 613, 316 Ill.Dec. 703, 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 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 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 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...