explanation for its ruling carves out an exception to the actual deception requirement of the illinois consumer fraud act that we submit would swallow the rule and render it meaningless and we also submit that the appellate court's ruling is inconsistent with several decisions by this court stretching back over a ten year period the illinois consumer fraud acts states the pl suffers actual harm quote as a result of and quote a violation of the act can recover damages but this court has held that this through this statutory language the act requires proof of proximate cause a ship that was a holding in conic and also in sacrament subsequent decisions by this court explained that to prove proximate in all of their vs amoco in two thousand and two this court i refer to the fact that the plaintiff never saw the allegedly misleading ads for premium gasoline and therefore was used after car crashes were as good as o e m parts and therefore this court concluded he was not actually deceived by the defendant's conduct and shannon versus boise cascade two thousand and four there the plaintiff never read the allegedly misleading advertisements about wood siding and therefore he was not actually to see and then most recently in two thousand and seven and barbara's sales versus intel the plaintiffs there did not see the defendant's internal statements about the pentium four chip and its performance and therefore they could not have been  now the plane just deposition and this case establish that she was not actually deceived by beyers marketing of the prescription drug baycol she testified that she never looked at the label she testified that she never read or saw any consumer advertisements for baseball she testified that she never read any articles or other materials about the benefits or risks of a call in fact she said she had never heard of bake all in her life before her doctor prescribed it for her to help control her cholesterol levels she testified that she relied one hundred percent on her doctor to decide what she should take because the appellate court nevertheless held that she could proceed with her cli court focused on what it called two very fine but significant distinctions it drew in the in the cases under the consumer fraud at the first distinction that the appellate court said it relied on was between cases involving affirmative deception and cases involving omissions or deception by concealment and the second distinction that the court said it was relying on  between cases involving direct deception and those involving indirect deception so i'd like to take up those those two distinctions that the appellate court relied on because we believe that they do not  concealment what the appellate court said was that the actual deception requirement that this court has articulated for illinois consumer fraud a case is applied only in cases alleging and i'm quoting the appellate court affirmative representations such as specific promises or false advertisements that's how the appellate court characterized this court's pre and then the quote went on to say and i'm quoting again in those types of cases the supreme court has said that in order to establish proximate cause the plank of must allege and show that she was actually deceived by a specific promise or representation and then the court appellate court said that in this case this case in patricide involves deception by concealment rather than an affirmative  representation but the distinction drawn by the appellate court we believe is more apparent than real and in any event does not warrant doing away with this court's requirement of actual deception the the course this court's actual deception decisions contrary to what the appellate court said do in fact involve cases involving not only misrepresentations of affirmative fact but also omissions which is the same thing as deception by concealment in avery for example  this court said that the core allegation was that the defendant did not disclose that it was using non using inferior non o e m parts rather than o e m parts so that was a failure to disclose a deception by concealment which this court said was the core allegation and avery and of course avery applied the actual deception arm similarly and gas was superior to lower grades or that if able to disclose the true facts about reading and scuse me about premium gas and in barber sales the plaintiff alleged that intel  imply italy represented that the pentium four was better than a pentium three but the plaintiffs also allege that intel had failed to disclose the true facts so all those cases the leading among leading cases requiring actual to suction in order to prove proximate cause they all involve allegations not only of affirmative misrepresentation but also  missions of material fact and and just as the distinction drawn by the appellate court doesn't really accurately describe this court's precedents it doesn't really accurately describe this case affirmative misrepresentations in fact the complaint that the plaintiff filed in this case is like every other complaint that people file in consumer fraud actions and that is it alleged at length both affirmative misrepresentations and omissions not even if there were such an animal as a pure concealment by silence case that does not mean that the actual deception requirement from this court's cases should be written out of the illinois consumer product the practical effect of doing that for a deception by concealment case would be to read the requirement out of the statute altogether and the reason is simple and that is that any misrepresentation  misrepresentation there's no requirement of actual deception if that were the law then what would happen and every single consumer fraud act case filed is that the plaintiff's lawyers would leave out  no anything about they call was not exposed to any statements the s to the doctor we sought to depose the doctor and sought discovery because we thought maybe the claim would be that we had deceived the doctor and then she relied on the doctor that plaintiff objected to any discovery from her doctor and  the patient physician privilege and said we were not entitled to inquire into what her doctor said to her or the basis on which the dr made his decision to prescribe a what they have explained when they headed us off in the trial court and again in their briefs in this court is that their theory here is not reliant the actual deception of either the plaintiff or her doctor instead their theory is that the medical community as a whole was misled  and that theory is one that this court has rejected repeatedly under the illinois consumer fraud act it is essentially a fraud on the market theory  it involved claims that an ad for premium gasoline were misleading because they suggested that premium was better than the lower grade and then there was also the allegation that  failed to disclose you know the true facts and the plaintiff there at mit ed as the plaintiff has here that he did not see any of these ads so so the those advertisements for not actually deceived him and caused him to buy a premium gasoline but the plaintiff alleged that well what happened is that the marketplace as a whole was misled and people were willing to pay more because of the these misleading ads and omissions they were willing to pay more for premium than they would have if they had known the truth and therefore the market set the price for premium at this artificially high level and that's what i paid and so i was an indirect victim of the deception of others yes it means the only damage or she suffered no personal injuries whatsoever this is not a case where she says that she suffered side effects in fact she she's a punitive class representative and the class are excuse me they call cost more than it would have if the truth had been known people would not have been willing to pay as much for their medicine if they had known all the things  specify in their damages but here's the overpayment is a little more overpayment claim is a little more complicated then than it would be even in the gasoline case because here she's alleging that the market price from four bay call was artificially inflated because other people were deceived and yet when you when it comes to prescription medicine you know there's all sorts of insurance and  think the eleven dollars versus the seventy dollars had to do with that your honor so this is kind of a market theory yes yes it is a market there ya know they try to stay away from that language because the market theory is barred we had a situation where homeowners were saying that there would siding was no good and that boise cascade had failed to disclose its problems with the woodside in their communications with the homeowners like mr boies admitted that they never read any of these communications they didn't know anything about what boise cascade was saying or not saying about the woodside ng and they also put in evidence that their contractors or engineers or builders who built the house they lived in that they had ever been exposed to any boise cas otherwise wouldn't have used it and again what this court this court said that that theory of indirect deception equated to the same kind of fraud on the market from the ones involved in and rejected by this court and aloe vera and the boise cascade case as i said the first distinction that the cart the appellate court relied on involved not only allegations of affirmative misrepresentations but also measurements and then the second one that the court focused on was this distinction between direct and indirect deception and we've really been discussing this now for the last few minutes in response to the court's questions mr beck then if i remember your reef correctly i think you agree that they could prove indirect deception but you don't believe they've shown a nexus that  absolutely correct your honor and a limit leigh let me just roll up with this based on what you talked about shannon are there any allegations in this case that there was deception of the medical community and fact the f d a yes there are allegations  so here's my last question when you draw the distinction or a comparison or you want to view it between shannon where you have all purchasers and the builders and in this case between the patient and the doctor medical community the the actual deception of the plaintiff need not always be directly from the manufacturer to the point that there are circumstances where can go through someone else and shannon the homeowner sued for misrepresentations and omissions concerning the word siding the homeowners never saw any any statements so there was no direct deception what this court said was that this is not this lack of direct perception is not always fatal the court said that if a bell if a plaintiff could show not that the community of contractors and builders and construction people as a whole were misled but if the plaintiffs who own the house that you know three eleven elm street could show that the people involved in making the wood siding decision at three eleven elm street had been deceived and and therefore decided to put up boise cascade would citing then that might satisfy the actual deception requirement but the court went on to say very explicitly that this does not apply where instead of talking about the folks who put the sighting at three eleven elm street your have no evidence on them whatsoever and instead you're talking generally about the construction community so now we move to this case so how is it parallel like the homeowners a didn't know anything about any statements or missions like the homeowners ms devolves has no evidence and can have no evidence that her doctor the one who decided to prescribe a call parallel to deciding to put that would siding on three eleven elm street she can't put in any evidence that he was to see and made his decision based on misrepresentations or omissions because she has said that that's barred by the physician patient privilege and she has said that that is fear rather than under her theory her theory is that the medical community as a properly alleged the consumer claim both under a theory of concealment and in direct misrepresentation dealing specifically with the summary judgment or issue first i think you have to remember the procedural posture of this case it was before class certification was even decided or right around the same time classification was decided the defendant in this matter filed a motion for summary judgment a simple three page motion and then a week before argument the filed a motion a supplemental a added on pleading with some effort david's etc and the court denied that motion because it was premature specifically the court said that there were certified questions that it wanted to be presented so that they could resolve the issues involved so the smoking for summary judgment which the defendant is talking about specifically should not even be properly before this court it was premature and it was decided in the negative and the only way that the defendant could have brought a sort of motion here for summary judgment is the  motion is an interlock a toy order and it's not properly before the court the whole court accepted to certify questions and we believe that's what's probably before the court but even if you do well mike it appears to me that what happened for the nun put tunk order on appeal i don't believe they went beyond that that's correct right and then the class certification question you were indicating you thought that there was no jurisdiction for there were correct and there was no i believe what then the class sor out certification issue was that it was an improper use of a nun pathak order this court has said that as long as the order is in writing at the plus side a so the proceeding then even if the court clerk does not send out the order then they're bound by it because it's the defendant stupid to check the record in this case there was a record entry specifically showing a twelve page order which was the classification order that was entered counsel mr driscoll was able to go to the court house and get a copy of that order so it was available and in an argument on the summary judgment motion i loue to be for at that time counsel was before the judge that actually certify the class order and didn't even ask the question what was the  september second they do not argue that the content was improper what they did art or argue is that they never received notice and under under the cases we cited in our brief it was their burden and their duty to get a copy of the order when was  first of all it was paralegals that might have gone on and check the record second of all i believe they were told the court file was in the judge's chambers and they never went to the judge's chambers to check the record and there was an entry on the docket system showing that an order was entered a twel page order was entered on september second that's how mr driscoll was able to find the order when he went to the court and received a copy of the order so i believe it was the neglect and the failure to follow up that was at issue here and the again if the court said as long as it's in writing is that it then it's up to the the defense counsel here to get the order but the no put tump order even given the trial court of law up until january this order was entered and signed in september and then in january it was still in the  office no during this period of time there were arguing the class the class certification or had just been argued and the motion for summary judgment was going on saw i don't know can't answer the question of why it was or how long it was there but i can tell you during this period of  time if you look at the affidavit that's what was described by the paralegals that went there they went there and asked for the court file and they were told that it was in judge's chambers that they were using it so and there's nothing to show that they followed up and went to the judge's chambers in order to try and find that order it and just one more point even the trial judge on the kentucky order in the catered that he wasn't sure if that was the right thing to do to enter the order but he certainly had some compassion for the for the defendant and he changed the order just so that he could extend the time to the fact that not only must the plaintiff must the fun of the allege that the plaintiff lacks evidence but he also must demonstrate that the plaintiff cannot even acquire evidence to make its case and i think that's that's a clear distinction here because and contrary to what i believe counsel said on the record certainly we've never said that actual the sex deception is not part of the elements of this case and that's not what we're alleging and i think if you look at the transcript of the deposition of the plaintiff in this matter she never in never admitted that she was not actually deceived and certainly she did not state that she did not rely upon her own doctor's advice here so what she did say is that she relied upon and read certain slips of paper that were taxed for the prescription when she got it before she took the prescription that's clear from the record what the funnest would say is that was alyssa that on cross examination by leading questions but that's incorrect as well your honour's because if you look at the questions again she made those statements specifically in reference to questions the rest by defendant's counsel so as to see we believe a number of people were deceived here first of all the issue if i can explain that your honor what what happened here is without following the dictates of rule tool for see the defendants know to stop the deposition of the of the treating doctor without notice to the doctor and without notice to the plaintiff intermediary doctor has any role in this case at all because what we're talking about is a common law a form of the fans and this case we're talking specifically about a statutory cause of action learned intermediary defense has no apple book ation specifically to this cause of action the plaintiff has alleged and which we're entitled to proceed upon as much as the fun it would like to change our entire cause of action i think if you look at the complaint and look at the  and said that they required allegations of proximate cause are minimal and that the that determination is best left to the trier of fact this is further emphasized by the court's decision and not i and there are the court noted that complex questions such as proximate cause which would cause reasonable man to arrive at different concrete salts should never be determined as a matter of law so here even with the minimal allegations that were in the complaint they were sufficient to allege proximate cause and proximate cause and since with this court has held is not for and that's exactly what we've lost a legend in our complaint but for the deception of the finance in this case they would have never brought big call in the first place and what's happened in this case were a lot specifically alleging actual deception because the plaintiffs in this case were not a purchase by a call and that again that goes specifically to the damages as well there present there is no reliance the moment under the way your plea the statute specifically itself consumer fraud does not require reliance under the act certainly the dictates of proximate cause and actual important thing to remember here is that the plaintiff here and bear specifically admits in the record that they never marketed the drug to individual consumers the target of their marketing was directly to the doctors so that she would have never had the opportunity to been actually deceived through these advertisements to the doctors because she was not targeted so the mr mr carroll lawyer made it in her deposition that she did not rely on were missions but wouldn't it be that if that's true that she didn't rely on anything she didn't rely on the content of those statements be in an affirmative misstatement or a fraudulent concealment she didn't rely on any no i don't i don't believe that's correct driver what she's what she's saying she didn't rely upon in the form of a statement from because it wasn't something her she did not state in there that she did not rely upon or any a mission specifically in other words she was this is not in the form of misrepresentation case and i think that's what's distinguishes the the other just spread sense of this court with regard to avery and barber sales and everything those cases dealt primarily with anything nothing written or spoken by big oil big call made statements directly to the doctors and certainly in a prescription drug setting like we're talking about a patient has to rely upon what the doctor knows in regard to th and certainly they made specific representations as to the efficacy of the drug to the doctors and to the medical community that's why we've used that term because what we're talking we're not trying to use a market theory here judge we're trying to use this is a class action and we had a plea to it that way that it was more than just an individual doctor the plainest doctors and all the classes doctors but she had to put it that way for the complaint is this an indirect deception or i'm confused it seems to you're saying one point she was actually to see and then you're saying that she didn't know anything about it and she's not a firm she relied on her doctor and so the deception runs to the doctor the deception actual deception runs to both of them your honor and that's why prescription to take she did go to her doctor and she was deceived because there was no information that was presented to the doctors in fact the opposite information is true and she was deceived but for the fact i think it makes common sense that if anybody is specifically included not only from the class but it specifically included under the consumer fraud act itself strictly economic this is strictly an economic case than economic claim your honor i'm a i'm not sure if i got the answer to liking just a couple arguments contrary to what the front of said here they are they have made the argument in their brief that there must be an affirmative statement from which to conceal information from the maintain a plaintiff claims and to me just common sense that the concealment inherently necessitates a conscious decision not to provide information and evidence is the current time for the victim to rely upon missing information requirement or from the statement here from which information must be emphasize that again it's in our grace that the purpose of this act this court has said is the prevent the session of l and i consumers and it must be liberally construed so it's against that entire background that i ask the court to look at the the facts of this case  accordingly if the funds argument was taken to its logical end it would insist upon a pleading standard that we quire us to prove the negative and that's not required by the act and that's certainly not a rational decision as well  one other point i want to talk to specifically was the market theory defendants have attempted to mischaracterize wolf in their all argument and in the brief that mr bowles simply has not has attempted to plead a market theory case and that's exactly the opposite what's true the basis for marketing arguing the market theory case was the old villa case and there are the court determined that a plaintiff who alleged increased gas prices based upon false ads could not sustain a claim for consumer fraud because he did not actually see the ads the court held there that there was actual deception must be required here in contrast with a loophole of the mist deposes demonstration of concealment specifically address this causation the fund that actively concealed information from is the b cases damages are animal analyzed under the benefit of the bargain rule they are determined by assessing the difference between the value of the property sold in the value of the property that would have been but for the concealment of the material terms here and  for the concealment here mr bowles would never have purchased a call she never received the benefit of her bargain and certainly that's evidenced by the fact that they withdrew the strug from the market on their own accord so when this became first on the the distinction that's attempted to be drawn here between it's a pure concealment case where somebody doesn't say anything about a product that put out into commerce and a case involving affirmative statements that omit material facts assuming that there's ever a situation where somebody puts out a product without saying anything about its  qualities that is not and cannot by law be the case with a prescription drug the federal law requires that there be a label and requires the type of information that is the label dictates that that information includes efficacy which means does the drug do what it's supposed to do and it also includes information on safety what are the side effects so when somebody is permitted to sell a prescription drug in the united states it always is accompanied by a label that has this information the core allegation in this case there is not that  bake all without telling anybody what it did and without mentioning anything at all about its risks the quote allegation is that the disclosures that we made on the label required by the f d a were either misleading or omitted material facts so this is a standard case of a claim of material facts being misstated the safety of they call for material facts being omitted from a critical communication then on the question of who has claimed to have been deceived we heard a little bit about pieces of paper that were stapled to a bag that the big call was young and ms devoutness on series a leading questions from her lawyers did say that yes there was a slip of paper stapled to the bag and bayer was or from the pharmacy she said i haven't got the slightest idea i can't remember a thing about it so they've shoehorned the fact that there was some piece of paper stapled to a bag it could have been the receipt it could have been a flyer from from the  cy they seized on that fact and her testimony that she hasn't the slightest idea what it said and then says that deceived her as to her doctor we sought to take his deposition they objected we didn't think illinois rules applied because he lived in missouri when they objected and they and they raise the physician patient privilege we filed a motion with the with the trial court for permission to take the deposition get over any procedural haggles they would then reiterated the doctor client patient privilege and they said to the district or the trial court that under their theory this knowledge is irrelevant because they're talking about deception of the medical community as a whole and they reiterated that in their briefs and miss corke they say in this court that it's ok that clued us from discovery of what their doctor understood what the basis on which he decided to prescribe a call i e was he to see because that doesn't matter under their theory because their theory really is a market there are three and as we as we heard when counsel was describing damages those damages don't make any sense except in a market theory context they're saying that the deception that took place was of the medical community as a whole and because they were deceived big bear was able to charge what it was able to charge for bay call and she paid what she paid for because a couple other points this is not a tax style motion that's a motion where the defense says to the plaintiffs haven't come forward with any evidence supporting their claim here what we're saying is that we took her deposition and he deposition precludes her client and it's just like the other cases we discussed earlier they typically come up and manners like that when she testified that she was not see by anything that they are said or did not say and when they stake out a a legal theory that precludes any inquiry into whether the doctor was to see and therefore prescribe a call to her then the issues joined in the question is does this theory of general deception of the marketplace does that withstand legal analysis so it's not a solid tuck's style motion were viewing court is not limited to the questions that are certified by the trial court i don't think there's any dispute about that and certainly this court is not limited to the questions that have been they did in fact go well beyond the certified questions by the trial court which which largely were beside the point they the the fifth district rejected our argument that plaintiff's deposition compelled summary judgment under discourse decisions requiring actual deception and the court carved out an  exception for actual deception based on these two distinctions that i talked about earlier so the court went well beyond the three questions that were posed to it  certification is a classic interlocutory order and therefore the court was well within its discretion when it learned about what happened to say i'm going to re it did not show this september second order the legal assistance who were in charge of monitoring this check that i think the number was ten times and they checked the computerized counsel knew that his draft order had been signed verbatim and he went over and picked up a copy from the court we didn't know that we weren't informed of that and we couldn't find out by checking the computerized  sheet because it wasn't there when we finally found out in january that this order had been shared with the plaintiff's counsel then and we and we raise these concerns then later on in january the september second entry shows up on the computer and i'm not suggesting for a minute that there's anything nefarious about that someone went back and corrected the clerical error on the computerized docket sheet that's all but the evidence is undisputed that up until we brought this to the court's attention when we found out about it and another hearing that it was not on the computerized