De Bouse v. Bayer

• Decision Date: 17 December 2009
• Docket Number: No. 107528.,107528.
• Citation: 922 N.E.2d 309,337 Ill. Dec. 186,235 Ill.2d 544
• Parties: Teresa DE BOUSE, Appellee, v. BAYER AG et al., Appellants.
• Court: Illinois Supreme Court

922 N.E.2d 309

235 Ill.2d 544

337 Ill. Dec. 186

Teresa DE BOUSE, Appellee, v. BAYER AG et al., Appellants.

No. 107528.

Supreme Court of Illinois.

December 17, 2009.

Philip S. Beck and Andrew L. Goldman, of Bartlit Beck Herman Palenchar & Scott LLP, Stephen C. Carlson, J. Randal Wexler and Charles K. Schafer, of Sidley Austin LLP, all of Chicago, Terry Lueckenhoff and Katherine M. Fowler, of Fox Galvin, LLC, St. Louis, Missouri, for appellants Bayer AG et al.

John E. Galvin and Jonathan Garside, of Fox Galvin, LLC, St. Louis, Missouri, for appellants GlaxoSmithKline & GlaxoSmithKline PLC.

Christopher Cueto, Belleville, William R. Quinlan, James R. Carroll and Shawn M. Staples, of Much Shelist Denenberg Ament & Rubenstein, P.C., Chicago, and John J. Driscoll, of Driscoll & Cueto, St. Louis, Missouri, for appellee.

Lawrence R. Kream, Chicago, for amicus curiae Illinois Trial Lawyers Association.

OPINION

Justice GARMAN delivered the judgment of the court, with opinion.

Plaintiff brought a claim under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. (West 2004)). She alleges that the defendant drug manufacturer deceived the medical community and the public at-large by concealing information about negative side effects of the defendant's cholesterol-lowering drug. In this case, we are asked to review three questions certified in the circuit court of St. Clair County in order to determine whether plaintiff can maintain a claim under the Act.

BACKGROUND

Plaintiff, Teresa De Bouse, brought this claim representing a putative class of plaintiffs she argues were harmed by defendants. Defendants (collectively, Bayer) are corporations that De Bouse alleges collaborated in manufacturing and promoting sales of a cholesterol-lowering drug called Baycol. Defendants also include two individuals, who De Bouse alleges acted as agents for defendant Bayer Corporation. Baycol was later withdrawn from the market after its use was associated with rhabdomyolysis, a serious medical condition affecting a patient's muscles.

De Bouse began taking Baycol in February 2001, on the recommendation of her doctor. During a deposition, De Bouse testified that she had no independent knowledge of Baycol prior to her doctor's recommendation. She testified she relied on her doctor's recommendation and did not exercise any independent judgment on the decision to begin using the drug.

In all, De Bouse had purchased Baycol three times. Each prescription contained 30 tablets. Baycol was withdrawn from the market in August 2001, roughly six months after it was first prescribed to De Bouse. That same month, De Bouse was notified by her pharmacy that the drug had been withdrawn. De Bouse immediately discontinued her use of Baycol.

Although De Bouse did not allege any damages due to side effects from the drug, she has claimed economic damages. De Bouse argues that Bayer was able to inflate prices for Baycol as a result of its deceptive omissions regarding the potential side effects of the drug.

Bayer filed a motion for summary judgment, arguing that in order to maintain an action under the Act, De Bouse is required to demonstrate that she was actually deceived. The circuit court denied Bayer's motion. However, the circuit court did certify three questions for interlocutory review under Supreme Court Rule 308 (155 Ill.2d R. 308(a)).

The three certified questions are as follows:

"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, even though the pharmaceutical company did not engage in direct communication or advertising to the consumer.

II. Whether the Defendants [sic] 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) plaintiff relies upon the statements to his detriment, can support an action under the Illinois Consumer Fraud Act."

Upon certification of these three questions, Bayer filed an interlocutory appeal pursuant to Rule 308.

Bayer also filed a petition for leave to appeal the circuit court's class certification order under Supreme Court Rule 306 (210 Ill.2d R. 306(a)(8)). The circuit court originally signed an order granting class certification on September 1, 2005. The order bears a file stamp dated September 2, 2005. Bayer claims to not have discovered the existence of the September 2 order until January 11, 2006, when the circuit court held a status hearing. Bayer asserted in the circuit court that because of the clerk's failure to serve it with a copy of the September 2 order, its right to appeal was prejudiced. Bayer asked the court to vacate or amend the class certification order nunc pro tunc in order to preserve its right to appeal. The circuit court granted Bayer's motion and entered an order which both vacated the class certification order, and amended it to be entered as of January 11, 2006, the date upon which Bayer claims first to have been made aware of the order. Bayer filed its appeal with respect to the class certification order on February 10, 2006.

Bayer's two petitions for appeal were consolidated in the appellate court. In a published opinion, the appellate court answered the first and third questions in the affirmative. De Bouse v. Bayer AG, 373 Ill.App.3d 774, 785, 311 Ill.Dec. 691, 869 N.E.2d 365 (2007). The court declined to answer the second question, as the court concluded the question involved factual matters not appropriate for interlocutory review under Rule 308. De Bouse, 373 Ill.App.3d at 785, 311 Ill.Dec. 691, 869 N.E.2d 365. Regarding the Rule 306 petition, the appellate court concluded that it lacked jurisdiction over Bayer's appeal, as Bayer failed to timely file its petition. The court concluded the circuit court lacked authority to vacate and reenter the same order more than 30 days from the original order in an effort to excuse compliance with the supreme court rules. De Bouse, 373 Ill.App.3d at 779, 311 Ill.Dec. 691, 869 N.E.2d 365.

After the appellate court filed its opinion, Bayer petitioned this court for leave to appeal. We denied Bayer's petition, but entered a supervisory order instructing the appellate court to vacate its judgment and reconsider in light of Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 316 Ill. Dec. 522, 879 N.E.2d 910 (2007). The appellate court then filed a second judgment, again answering the first and third certified questions in the affirmative, declining to address the second question, and concluding that Bayer's appeal of the class certification order was untimely filed. 385 Ill.App.3d 812, 820, 826-27, 324 Ill.Dec. 806, 896 N.E.2d 882.

Bayer again sought leave to appeal in this court, which we allowed pursuant to Supreme Court Rule 315 (210 Ill.2d R. 315(a)). For the reasons that follow, we answer the first and second questions in the negative. We answer the third question in the affirmative. Lastly, we vacate the circuit court orders certifying the class and denying Bayer's motion for summary judgment, and enter summary judgment in favor of Bayer.

ANALYSIS

A. The Certified Questions

Our review of the appellate court's ruling on certified questions is governed by Rule 308. We limit our review to the certified questions, which, as questions of law, we review de novo. Barbara's Sales, Inc., 227 Ill.2d at 57-58, 316 Ill.Dec. 522, 879 N.E.2d 910. However, once we have answered the certified questions, in the interests of judicial economy and the need to reach an equitable result, we will consider the propriety of the circuit court order that gave rise to these proceedings. Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 354, 314 Ill.Dec. 778, 875 N.E.2d 1065 (2007).

De Bouse's first amended complaint alleges a violation of the Act. A Consumer Fraud Act claim requires (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 that is (5) a result of the deception. See Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 373, 231 Ill.Dec. 80, 695 N.E.2d 853 (1998).

That the plaintiff must prove that actual damages were suffered "as a result" of the deceptive act imposes an obligation on the plaintiff to prove the deceptive act proximately caused any damages. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002). In its motion for summary judgment, Bayer argued that De Bouse could not prove that she suffered actual damages as a result of Bayer's alleged deception. Bayer is, in effect, asserting that De Bouse cannot demonstrate proximate cause. Bayer's motion for summary judgment argued that De Bouse must prove she was "actually deceived," but that as a result of her deposition testimony, she cannot do so. In that testimony, she acknowledged that she saw no advertising for Baycol and knew nothing of the drug prior to her doctor's providing her with a prescription.

De Bouse argues that a plaintiff need not receive a communication from the defendant to maintain a consumer fraud action when the deception results from the defendant failing to disclose material facts, or, in other words, committing deception by concealment. Further, De Bouse contends that the Consumer Fraud Act supports a claim of "indirect deception." According to De Bouse, indirect deception is...