1 NOTI CE Decisi on fi led 10 /09/ 08. The textof this dec ision m ay be changed or
corrected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-06-0077 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

________________________________________________________________________ TERES A DE BOUS E, In di vi dua llyan d On ) Appeal from the Behalf of Others Similarly Situat ed, ) Circuit Court of ) St . C lai r C ou nt y. Plaintiff-Appell ee, ) ) v. ) No. 04-L-53 ) BAYER AG, BAYER COR PORATI ON, ) SMIT HKLI NE BEE CHAM CORPORA TI ON, ) d/b /a G LA XO SM ITH KL IN E, ) GL AXO SMI TH KL I NE PL C, MAR CY G RI M, ) M ICH AE L H AR VE Y D AV ID SO N, M .D., ) andMICHAEL LEVER, ) Ho nora ble ) M ich ae l J. O 'M all ey, Defendan ts-Appellants. ) Judge, pr esidi ng.

________________________________________________________________________ JUS TIC E D ON OV AN delive red the opin ion o f the c ourt: A class acti on complaint sounding i n consumer fraudwa s filed in the circ uit court of St. Clair County by

the pla inti ff, Teres a De Bouse, indi vidually and on beha lf of other simil arl ysitua ted I llino is res iden ts, alle gin g th at the defend ants , Ba yer A G, B ayer C orp ., SmithKline Beec ham Co rp ., doi ng b usines s a s Gl axo Smi th Kli ne, Gla xoSm it hKl in e PLC, Marcy Grim, Michael Harvey Davidson, M.D., and Michael Lever, committed common law fraud and v iolate d the Ill inois Consumer Fraud and Decepti ve Business Pr acti ces Act (t he Consumer Fraud Act) ( 815 ILCS 505/1 et seq. (West 2 004)), in conceal ing nega tive safety and efficacy

data on a phar

maceutica l product

it of fered for sa le in Illino is. The St. Cla ir Co unty circu it cour t grante d the p laintiff's m otion to certi fy t he case as aclass acti on. The circuit court

den ie d the d efe ndant s' mo tion for a summary judgment, but it

certi fied three questi ons of law for ap pellate re view pursu ant to S upre me C ourt R ule 308 (a ) ( 155 Il l. 2d R.2

308(a))

. The de fendants fi led a pet iti on for leave to appealthe cl ass certifi cati on order pursuant to Supr eme Court Rule 306(a )(8) ( 210 Ill . 2d R. 306(a )(8)) , and l eave was initially granted. The d efenda nts filed a separa te app licati on, pet iti oning thi s court to consi der the questi ons that ha d been certifie d by t he tri al court , and the appli cati on was granted. The appeals were consoli dated under cause No. 5-06- 0077. Afterreviewing the record, we determined that the defendants' appeal from the class certi ficat ion order w as untimely, and w e dismissed th e appea l for a lack of juris dicti on. De Bouse v. Bayer

AG , 373 I ll. Ap p. 3d 7 74, 78 2, 869 N.E .2d 36 5, 372 (200 7). Th e defenda nts include d a number of

arguments in regard t o the deni al of their s ummary judgment motion. We declin ed to s pecif

ically address those argum ents on gro unds that the d enial of a sum mary judgmentmo tion is n ot a fin al, app ealab le order, that t his cour t hadlimited the interlocutory appeal to the c er tifie d questi ons, and t hat the re appear ed to be questions of mate rialfact about wh ich d isco ver y had not bee n co ndu cted

. D e Bouse , 373 I ll. App. 3d at 783, 869 N.E.2d a t 372. As t o the certifi ed questi ons, we found that in order to est ablis h co nsu me r fraud under a the ory

of a concealment

of a materi al fact i n the conduct of trade or commerce, it is suff icie nt to s how that the facts c oncealed were known to t he defendant at

the time of the concealment , that the de fendant i ntendedthat t he plai ntiff

rely on the deception, t

hat the plaintiff is act ually deceived, whether by

direct or indi rect de cepti on, andthat if the plaintiff had known about the concea led fact s, she would not have purchasedthe p rod uct. De Bo use , 373 Ill . App. 3d at

784-85, 869 N.E. 2d at 373 -7 4. Th e defenda nts ap peale d. Th e Illinois Supr eme Cou rt entered a sup ervisory order, directing thi s court to vacat e the judgment and to recon sider it in light

of Ba rba ra's Sales, Inc. v. Intel Corp. , 227 Il l. 2d 45, 879 N.E.2d 910 (2007). De Bous e v. Bayer AG , 226 I ll. 2d 61 3, 880 N.E .2d 18 1 (20 08). In acco rdan ce w ith the manda te of the supreme court , we vacated our prior opinion, and we ordered supplementa l briefing. Upon reconsi dering t he case i n light

of Barbara's Sales, Inc. , we do3

not find that a dif

ferent resul t is warranted. Our reasons ar e set for th in t he foll owing opinion. I. Procedura l History This is a class action case invo lving th e pres cription drug cerivista tin, wh ich w as sold in the Unit ed State s under the br and name Baycol . Bayc ol is a member of a c lass of statin drugs that are presc ribed to low er the lip id le ve ls of in dividu als w ith high chole sterol. Between 1997 and 2000, the Food and Drug Administ rati on had approved the various doses of Baycol for use in the United States. The plaintiff' s personalphysi cian prescr ibed Bay col for the pla inti ff beginni ng in Februar y 2001. The plaintiff

purchase d Baycol on Februa ry22, 2001, M ay 23, 20 01, an d July 30, 2001. Eachprescr ipti on contai ned 30 tabl ets. The price for 30 table ts was $51. 09, but t he plai ntiff

's c opay was $2 5. In August 2001, Baycol was wit hdr awn from the market because its use was associ ated with a seri ous medicalconditi on call ed rh ab do m yol ysis . S om eti m e in A ug us t 2 00 1, a ph ar m ac ist fr om th e p lai nt iff's pharmacy call ed the pl ainti ff and dire cted her to st op taking Bay col and t o contact her physi cian for an al ternative drug . The plaintiff di d not use t he remainder

of the Bay col prescr ipti on. The plaintiff

filed a three-c oun t com plaint a gains t the de fend ants o n beh alf of herse lf and a class of

Ill inois resi dents who had purchased Bay col. Ill inois resi dents who all ege or have alle ged personalinjuries or death as a

resul t of taking Bay col were excluded from the class. Count I and count III of the fi rst amended complaint are brought

under the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 2004)) . Count I a llege s that the defendant s offered Baycol for sal e, repr esenti ng thatit was r easonably safe for i ts i ntended purpos e, that the defend ants knowingly

and inte ntional ly

concealed and suppress ed informat ion regardi n g kno wn risks and dangers of Bay col with the inte nt t hat the plaintiff purcha se it , that the plainti ff wa s actua lly deceive d in tha t she p urch ased a dru g that sh e w ould not h av e4

purchasedhad she been aware of t he informat ion regardi ng risks and dangers t hat had been concealed

and supp ressed, and that she suffered damages in the amount of the purchases. Count III a llege s that

by conce aling t

he known risks and dan gers ass oc iate d with use of Bayco l, the defendant s were able t o charge pri ces far in excess of the fai r market va lue of the drug, thereby

committi ng one or m ore unfair p racti ces und er th e C ons um er F rau d A ct. Count II alle ges common law civilconspir acy t o commit fraud bas ed on t he afo rementi oned violatio ns of

the C onsu mer F raud Ac t. In a discover

y depos iti on, the plaintiff t esti fied that she had no independent knowledge of Baycolat the tim e her p hysician p rescrib ed it. She had not revi ewed medical referenc es on B aycol. Sh e had not d one a ny resear ch on Bayco l. The plaintiff st ated that she reli ed on her phy sici an to make medicaljudgments about propermedicati ons. The pl ainti ff stat ed that she und erstoo d that so me p rescrip ti on med ic ations have potent ial s ide effect s. She test ifie d that she wo uld n ot take a me dicatio n if she determined that the risks of ha rm outw eighedthe benefi ts. She stat ed that she would rel y on her

physi cian and on t

he dru g informat ion sheet t

hat was att ached to t

he prescripti on bag b y t he pharmacy

to make a determination regarding the purchase and use of prescript ion drugs. The defendants fi led a moti on for a summary judgment, clai ming that th e p lai nt iff's deposit ion test imonyestabl ishes, as a matter of law, that she cannot make a prim a facie case under the Consumer Fraud Act. The defendants s tate d that t he plai ntiff

test ifie d that s he had not se en, rea d, or heard anyt hing about t

he drug and that she r elie d on her ph ysi cian' s judgmentin pu rchas in g the pr oduct. The defendants argued that the pla inti ff's own testi mony sh ows that s he could not have been actua llydeceived or damaged by any

misrepr esentation
or concealment

by t he defendan ts. The p laintiff res ponded that actualdecepti on can be establ ishedwhere the defendants , in off ering a pr escription dr

ug for sale whil e concealing adverse reactions and known risks, misre prese nted th at the p rodu ct wa s safe for its intende d5

uses, that in the absenc e of publi shed infor mationabout the risks and dangers, the pla inti ff reasonably r elie d on the misr epresent ations that t he product was s afe forits i ntended uses, and that t he plai ntiff

wou ld not ha ve purch as edth e p ro duc t h adsh e know n abou t the safety risks. The circuit court denied the defen dants' motion for a sum mary judgm ent. The co urt certi fiedthree que sti ons of law for revi ew in accordance with Su preme C ourt Ru le 308(a). II. The Rule 308(a) Appeal At the ou tset, we note th at the d efen dants have devo ted a c onsid erable portion of the ir brief in the Rul e 308(a) appe al to arguments cl aiming t hat the circ uit court er

red in denying their motion for a sum mary jud gm ent. W e dec line to sp ecifica lly address those argu men ts for three r easons. First , the denial of a mo tion fo r a sum mary jud gm ent is inte rlocuto ry in nature, and it is not a fi nal, appealabl e order. See La S alle National Bank v. Little Bill "33" Flavors Stores, Inc. , 80 Il l. App. 2d 298, 225 N .E.2d 465 ( 19 67). Second, we limit ed interlocutory review to the l egal questions cer tifi ed by t he tri al court . Thir d, aft er considering the t he or y of

co ns um er fr au d a lle ge d i n t he co m pl ain t an d d isc us se d i n t he pl ain tif f's tes tim on y, we find that

there a ppear to be materi al factual issues ab out wh ich discove ryhas not been had. A revi ew of the defendant s' mot ion for a s ummary judgment would not ad va nc e a re so lu tio n o f th e c as e o r se rv e ju di cia l ec on om y. The circui t court

determi ned that

a resolution of t

he follow ing q uestion s of law could mate rially advance the di sposition of the litigati on, and i t certifie d the que sti on s in accordan ce with S uprem e Cou rt Rule 308 (a):

"I. Whether an Il linoi s consumer who purchase s a pharmaceu tical pro duct, late r withdraw n fro m the market becaus e it was dee med unsafe, can mai ntain an acti on under the I llinois Consumer Fraud Act [cit ation] , even t

hough t he pharmaceuti cal company di d not engage i n direct communicati on or advertisi ng to the6

consum er. II. Wh ether th e Defendan ts[ '] offeri ng for sale of a product in Illinois is a repres entat ion to pro specti ve custo mers that the prod uct is rea sona bly safe for its intende d purpose such t hat proof of a

de fe nd an ts' [ sic ] failure to dis close s afety risks associ atedwith the pro duct to cons um ers is a violation of t he Ill inois Consumer Fraud Ac t. III. Whether fr au du len t st ate m en ts o r o m iss io ns m ad e b y a defendant t o thir d[] parties, other t

han the consumer , with t he inte nt that

they (1) re ach the pla inti ff[] [and] (2) influe nce p laintiff's ac tion[,] a nd (3 ) [w hen] plaintiff relies up on th e statem ents to h is de trim ent, c an s upp ort a n ac tion und er th e Illin ois C ons um er F rau d A ct." The elements of a clai m under the Con sumer F raud A ct are as follow s: (1) a decepti ve actor practice b y the defe ndant, (2) the defendant' s int ent that the pl ainti ff rely on the d ecep tio n, (3) the occurre nce of the dece ption in a course of conduc t involving tr ade or commerce, and ( 4) actu al dam age to the pla inti ff (5) proximately

caused by

the deception. 815 ILC S 50 5/2 (W est 20 04); Zekman v. Direct American Marketers, Inc. , 182 Ill . 2d 359, 373, 695 N.E.2d 853, 860- 61 (1998). The certi fied questions see m to be dire cted t ow ar d cl arifying the factual allegation s necessary to satisfy these eleme nts in a case asse rt ing a n intentional s uppressi on of materi al fact s and indi rect de cepti on. In Shannon v. Bois e C ascade Corp. , 208 Il l. 2d 517, 805 N.E.2d 213 (2004), the Illinois Supreme Court rec ognized that though proof of the act ual decepti on of a plai ntiff is requir ed to es tabl is h the p ro xi ma te cause requir ement, t he decepti on need not al ways be direct betw een the d efe nda nt an d th e pla intiff. Shannon , 208 Ill . 2d at 525-26, 805 N.E. 2d at 218. It is e no ug h t ha t th e d ef en da nt 's decepti on, whether made directly or indir ectl y, be committed

with the intenti on that it influe nce the pl ainti ff's acti on and that the pla inti ff reli ed
on the de ceptio n to her detr ime nt. Shannon , 208 I ll. 2d at 5 26, 80 5 N .E.2d at 218 ; St. Joseph1 A similar c ause of ac tion w as asse rted in Jensen v. Bayer AG , 371 Il l. App. 3d 682, 862 N.E.2d 1091 (2007). In Jensen , a summ ary ju dgm en t wa s grant ed for the defendant because the pla inti ff fail ed to submit some evidenc e on tw o elem ents tha t are ne cessa ry to prove a vio latio n of

the C ons um er F rau d A ct, i.e

. , the defe ndant' s int ent to c onceal or that the plaintiff

wa s actua lly deceive d by any om is sion ma de b y the d efe nda nt. Jensen was decidedafter

the parties had an oppor tunit y for discover

y on t he merit s. Aside from recogniz ing the existence of a cause of acti on under si milar facts, we do not find Jensen to 7 Hospital v. Corbet ta Construc tion Co. , 21 Ill. App. 3d 925, 954, 316 N.E.2d 51, 72 (19 74). In illustrating the conce pt of "indirect de ception," the sup reme co urt proposed a hy potheti cal
cas e in which a defen dant's produc t literature had actually deceived a particular builder, archite ct, or contr actor, resul ting in the ins tall ation of defecti ve sidi ng on a home. Shannon , 208 Ill . 2d at

526, 805 N.E.2d at

218. The supreme cour t concl ud ed, unde r those circumstances, that t

he purchaser , who may have no i ndependent knowledge of the qualities
or expe cted p erfor man ce of a siding , is dece ived b ecau se of the de ceptio n of

the bu il der , archite ct, or contr actor, who rea sona bly shou ld have correct knowledge, and t

hat the damages could have argu ably occ urred as a res ult of th e indire ct dec eptio n . Shannon , 208 Il l. 2d at 526, 805 N.E.2d at

218. T he Illin ois Supreme Court also r ecognized t

hat the omissi on or conceal ment of a materi al fa ct in t he c ond uct o f tra de o r co mm erce con stitute s co nsu me r fra ud. Connick v. SuzukiMotor Co. , 174 Ill. 2d 482 , 504 , 675 N.E .2d 5 84, 5 95 ( 199 6). A materi al fact exists whe re a buyer w ould have acted di fferent ly if he had known of the s uppressed informati on
or if the concealed f

act co ncerned the ty

pe of informat ion on which a buy er would be expectedto rely in making a decis ion reg ard ing the p urc has e of the p rod uct. Connick , 174 Ill . 2d at 505, 675 N.E.2d at

595. In order t o establ ish consumer fraud under a t

heory of c onc eal me nt by

sil ence, 1 thebe h elpf

ul in reg ard to th e issu es h ere. 8 plaintiff must a llege and establ ish that the defendant conce aled material facts r egarding its p roduct , that t

he decepti on, whether made directly or indir ectl y, was committed wit h the intent th at i t in flu en ce th e p lai nt iff's a cti on , th at t he pl ain tif f a ctu all y re lie d o n t he de fe nd an t's decepti on, and that if the plai ntiff had known o f the facts concealed, sh e would not have purchased t

he pro duc t. Connick , 174 I ll. 2d at 5 04-0 5, 675 N.E .2d at 5 95; Pap pas v . Pella Corp. , 363 Ill. A pp. 3 d 79 5, 80 4-0 6, 84 4 N .E.2 d 99 5, 10 03- 04 ( 200 6). The defendants s ubmit that thi s case i s governed by a line of decisi ons in which the Illinois Supreme Court hel d that de cepti ve advert isi ng could not b e the p roxim ate cause of damages unless t

he plai ntiff

was actual lydec eived by the m isrepre sentatio n, and they cite Avery v. State Farm Mutual Auto Ins urance C o. , 216 I ll. 2d 100 , 835 N .E.2d 801 (2005), Price v. Ph ilip Morris, I nc. , 219 Il l. 2d

182, 848 N.E.2d 1 ( 2005), and Zekman , 182 Il l. 2d 35 9, 695 N.E.2d 853, among others. In those cases, the al leged deceptions ar ose from affirmat ive representati ons, such as spe cific promises or deceptive advertisements. In those ty pes of cases, the supreme court has s aid tha t i n order t o establ ish proximate cause, the plain t iff must all ege and show that she was actual ly

deceived by

a specif ic promis e or repres entat ion. Avery , 216 I ll. 2d at 2 00, 83 5 N .E.2d at 861 ; Zekman , 182 Ill . 2d 375-76, 695 N.E.2d at 861- 62. In a supplement al bri ef fil ed on reman d fro m the supe rvisory ord er, the d efen dants clai med that Barbara'

s Sales, Inc. v. Intel

Corp. , 227 Ill. 2d 45, 879 N.E.2d 910 (20 07), supp orts its posit ion. The defe ndants argued thatin Barbara's Sales, Inc. , the Illinois Supr eme Court emphasiz ed that actual decepti on must be est ablis hed and that a decepti ve adverti sing campaign cannot be the proximate cause of damages unless repres entat ions made in the campaign a ctual ly deceived t

he plai ntiff

. The defendant s argue d thatbased on the pl ain tif f's ow n testim ony, the p laintif f ca nno t mee t the thre shold requ ireme nts set o ut in9

Barbara's Sales, Inc. In Barbara's Sales, Inc. v. Intel Corp. , the plaintiff al leged that the defendant made affirmat ive deception s in marke ting a new generation o f microp rocessor. Barbara's Sales, Inc. , 227 Il l. 2d

at 73, 879 N.E.2d at 926. While the primary issue in Barbara's Sales, Inc.
con cerneda choice- of-law quest ion, t he adequacy

of the consumer

fraud al legat ion s wa s consider ed as a p art o f the cl ass certifi cati on issue. In Barbara's Sales, Inc. , the Illinois Supr eme Co urt hel d that th e de fen dan t' s i mpl ic it re pr es ent at io ns t

hat it s Pe nt ium 4 microproce ssorwas "the bes t," and that it had a higher over all pe rformance when compared with the Pentium III, amounted to "puf fing" and that the rep resentations w ere not "deceptive acts" wit hin the p urv iew of th e C ons um er F rau d A ct. Barbara's Sales, Inc. , 227 Ill . 2d at 73, 879 N.E .2d at 9 26. T he su prem e cou rt als o found tha t though t he defendant' s int ernal docu men ts reve aled th at its predecess or product , the Pentium II I, was fas ter i n some of the performance testing w hen c om pared with the P enti um 4, the documents did not establish dec eptive advertising because it was not apparent that the defendant had made any false pub lic clai ms regardi ng specifi c speedbenchmarks andthe int ernal doc uments revea led that the pro ces sing spe eds var ied b y app licatio n. Barbara's Sales, Inc. , 227 Ill . 2d at 76, 879 N.E.2d at 927- 28. Un lik e Barbara's Sales, Inc. , the case at bar do es not con cern affirm ativ e repres entatio ns or " puffing" in a m ark eting cam paig n. Barbara's Sales, Inc. , 227 Il l. 2d at 73, 879 N.E.2d a t 9 26. Unlike Barbara's Sales, Inc. , the de fend ants in th is case allege dly suppress ed and concea led negat ive safety and e ffica cy data as sociate d w ith the u se of Bayco l, to influe nce prescribing physi cians and t heir patients . The act

of inte ntional ly

suppress ing and concealing materi al information– information that ident ifies adverse react ions and seri ou s injuries associ ated with use of a pharmaceutical pr oduct–with t he inte nt to influence purchasi ng decisi ons is an imp licit misr epresent ation of the safe ty

and efficac y of t

he10

prod uct, and if the consumeris actua llydeceived t hereby , the decepti on may give rise to a
consumerfraud act ion. Given the si gnific ant dif ferences be tween Ba rba ra's Sales, Inc. and the ca se at ba r, we d o no t believ e that Barbara's Sales, Inc. is cont roll ing here. In comparing and cont rast ing the a forementi oned author iti es for purpose s of discer ning the fact

ual al legat ions neces sary to a cause of acti on under the Consumer Fr aud Ac t, we find very

fine but signi ficant

dist inct io ns between case s all eging an affirmative decepti on and c ases a llegin g a decept ion by sil ent concealment and als o between cases alle ging direct

decepti on and cases al leging indirect decepti on . The se distin ctions r ema in after Barbara's Sales, Inc. Had the Ill inois Supreme Court det ermined t hat the theo ryof concealment

by si lence was no l onger soun d, it wo uld have express ly overrul ed the l ine of cases appr oving that

theory . Accordingly, we conclude that the the oryremains vi able. The complaint

at is sue invol ves a cla im of indir ect deception by silent co ncea lmen t. The plaintiff has al leged that she had no ind epen dent k nowledge of the benef its and the dange rs associ atedwith the use of Baycol, that t he suppression of data that identi fied adverse react ions and seri ous injuries a ssocia ted w ith use o f Ba ycol con stituted a n imp licit misrepr esentation of the safe ty and efficac y of Bay col, and thatthe suppress ion of material facts was a decepti ve pract ice under the Consumer Fraud Act. The plaintiff has all eged that she was actual ly

deceived by

the defendant 's s uppressi on and concealment of negat iv e efficacy and safety i nformati on associ ated with the use of Bay col , tha t she was deceived because of the al leged deception of pers ons, suc h as herphysi cian and her pharmacist , who
reaso nably should have cor rect knowle dge about the efficac y and s afety of Baycol , and that she would not have pu rchased Baycol had sh e be en ma de aware of the s uppressed informat ion. The plaintiff also alle ged th at she s uffe red ac tual ou t- of-p ocke t losses in purc hasin g the p rodu ct. We pause here to not e that we differwith the di ssent not only on whether the plaintiff11

can establish actua l dece ption b ut also on the issue of proximat e cause for damages. The dissent notes t hat the complaint

does not al lege that the plaintiff suffe red any personalinjury
as a resul t of usi ng the drug or that t he drug did not

lower the pl ainti ff's cholest erol. The dissent sugg ests that t

he plai ntiff

cannotestablish that she suffered a ctual d ama ges, ev en if the purchase was bas ed on decepti ve conduct, if the drug lowered t he plai ntiff

's c holest erol withoutca us in g a ny s i de effects , because the pla inti ff would have gott en exactly what s he paid for: a s afe, chol ester ol-l owering drug. In our vi ew, a consumer who is for tunat e t o avoid a known but concealed a dverse r eacti on associ atedwith the us e of a medicat ion does not nece ssarily "get h er mo ney's wo rth." Pro duct v alue is d ete rmined by the pri ce, t

he pr od uc t's effic acy and bene fits, the p rodu ct's safety risks , and th e ava ila bi lit y of ot her prod ucts re lative to pri ce, per formance, and risk. A consumer cannot j udge "tr ue value" whe re known information regarding product performance is withheld. A consumer is entitled t o make an informed choi ce, i n conjunct ion with her health care profe ssional s, about the actualrisks and be nefits of a pre scription drug. In this case, t he plaintiff cl early

stat ed that she would not have purc hased Bayc ol, and accepted the ri sks assoc iate d with use o f Ba ycol, had she been informed o f the risks. Following the rea soning and bas es underl yi ng the decisi ons in Shannon and Connick , we answ er t he firs t and th ird certif ied qu estions in the a ffirm ative, be caus e the Illin ois Supr eme Court has recognized a cause of acti on under the Consumer Fraud Act based on a claim of indir ect deception. The s econd questi on, as phrased, present s a mixed question of fact and law , and therefo re it is not a proper qu estion unde r Suprem e Cou rt Rule 308 (a).

III. Juris dicti on and the Clas s Certi ficat ion Order T he defend ants filed their petition for leav e to appea l the class certification ord e r pursuant to Supreme Court Rul e 306(a)( 8). The pl ainti ff moved to dismiss the ap peal for a lackof appell ate j urisdi ction. Initially, this court deni ed the pl ainti ff's motion to dis miss and12

gran te d the de fe ndant s' pe ti ti on f orle av e t o appe al . A ft er re vi ewi ng t

he re co rd , w e determi ned that it was necessar y t o revis it t

he issue of juri sdict ion. Afte r recons ideri ng the issue of juri sdict ion in l ight of t he record, we conclude that t he Rule 306(a) (8) appealwas untimel y fi led and must be dismis sed. The record shows tha t a hearing was held on the plaintiff' s motion for class certi ficat ion on July

29, 2005. At t

he close of

the hear ing, t

he circ uit cour

t announced t

hat it wo uld take the matter

under submiss ion. The court t hen enter ed a writt en order s tating that the issue wa s under su bmission. T he part ies su bm itte d p ro po se d o rd er s f or th e c ou rt's consider ation. On Se ptem ber 1, 2005, the court s igned a 12-pa ge order gr anting t he certi ficat ion of the class. T he or der is c ontain ed in th e co urt file. It bear s a fil e stamp of September 2, 2005. The court file also i ncludes a c omputeriz ed docketsheetthat c ontains
an entry dated Sept ember 2, 2005, indicating t hat a 12-page order was ent ered that date

. There is no indication t

hat the order was ser

ved personal ly

or bymail on counse l of rec ord. The record shows that t

he parti es appeare d in open court on September 27, 2005, and December 29, 2005, in rel ation to the summary judgment moti on that ha d been fil ed in the
case. The order ent ered aft er the hearin g on Sep temb er 27 , 2005 , specif ically states tha t all the parties a ppea red b y couns el on th at date . The parties a ls o appeared for a stat us conference on J anuary

11, 2006. On January

25, 2006, t

he defendant s fil ed a motion to vacate or amend the class certi ficat ion or der nunc pr o tunc on the grounds that t hey had not

recei ved a noti ce of the entry of the orde r grant ing cla ss certific ation, that the circuit court cl erk had fai led to s erve
a copy of t

he order on al l the parti es and had fai led to not e that servi ce in the file as requi red by Twentieth Jud icia l Circuit Rule 2. 06 (20th Judi cial Cir. Ct . R. 2. 06 (eff. December 12, 1991)), and that t

hey made di ligent

efforts to monit or the court fi le once t he motion had been taken under advis ement bythe court . The defendant s asser ted that the f

irst time t heybec ame13

aware that

the order

had been enter ed was during the stat us conference on January 11, 2006, t hat thei r ri ght to appe al was "seve rely prejudi ced," and t

hat the circui t court

had the autho rityto ente r a n unc pro tunc o rder t o avoid the prejudi ce. The defendant s att ached affid avits from the defendant s' attor neys and thei r sta ff members. The affi davits outlined the efforts undertake n to monit or the cour t fil e. The plaintiff fi led a re sponse in oppos iti on to the defendants' motion for an orde r nunc pro tunc . Therei n, the p laintiff s ta ted that her attorneys obtained a copy of the class certi ficat ion order by

appeari ng in pers on at the circui t cle rk' s office on or about September 5, 2005, and making an inquiry about the stat

us of the cl ass ce rti ficat ion moti on. The plaintiff attachedaffidavi ts fr om its at torney s and a copy

of the computerized docket sheet that revealed an entry of Septem ber 2, 200 5, referencing a 12-pag e order. On January

30, 2006, t

he court he ld a hear ing on the defendants ' moti on to vacat e or
ame nd the cl ass certification order nunc pro tunc . After c onsider ing the arguments of
coun sel, th e ju dg e s aid , "I t's only just that I enter an order nunc pro tunc if that in s ome way
can protect

your right to a ppea l th is thing if t hat' s the r ight t

hing to do. " The court t hen entered the following order:

"Defendants' Motion to Vacate or Amend Class Certif

icat ion Order Nunc Pro Tunc call ed and heard. Over plaintiff' s objection, s aid moti on is he re by GRANTED. The Co urt's Ord er date d Se pte m ber 2, 2005, granting Plaint iff's Motion For Class Certif icat ion is her eby vac ated nunc pro tunc and amended to be ente red Januar y 11, 20 06 , th e d ate th e d ef

en da nt s' [ sic ] rec eive d no tice o f sa id O rde r." The defe ndan ts filed th eir petition for lea ve to appeal the c ertification order on Februa ry10, 2006. Supr eme Court Rule 306(a)(8) allows a party to petition for leave t o appeal fr om an ordergranti ng or deny ing the c erti ficat ion of a cl ass act ion. Supr eme Court Rule 306(c) (21014

Ill. 2d R. 306(c)) requir es that the petition be fil ed in the appell ate court within 30 days after the entry of the orde r grant ing or denying the c erti ficat ion. The 30-d ay time lim it unde r Ru le 306 is juris dicti ona l. Kemner v. Monsanto Co. , 112 Il l. 2d 223, 236, 492 N.E.2d 1327, 1333 (1986); Leet v. Louisvi lle & Nashvill e R.R. Co. , 131 I ll. App. 3d 763, 765, 475 N.E.2d 1340, 1341-42 (1985). There is no provisi on for exte nding the time for fil ing a pet iti on for interlocutory appeal ot

her than by

permissi on of the re viewing cour t pursu ant to R ule 306(f) (210 Ill. 2d R. 30 6(f)). In this case, t

he cert ific at ion order was entered on Sept ember 2, 2005. By our calcul ation, the pet iti on for leave to app ea l sh ou ld ha ve be en fil ed no lat er th an M on da y, October3, 200 5. Th e defenda nts' petiti on for lea v e to appea l was no t filed until February 10, 200 6, and they did n ot seek perm ission f rom this cou rt to file an unti m ely p etition for leave to appeal . In acc ordance with the time limit s set f orth i n Supreme Court Rule 306, the defendants' petition for l eave to appea l was fil ed out of tim e. The defendants pr esented a number of legaland eq uitable argum ents to the trial court in sup port o f their m otion to vaca te
or amend the certification order nunc pro tunc
. We have considered t hose arguments , and for th e r ea so ns di sc us se d be lo w, we have conc luded that the defe ndan ts have not est ablis hed any bas is for excusi ng their fail ure to fi le the petition for l eave to appealwithin t he 30-day time lim it. The defe ndan ts hav e argu ed tha t an ord er to va cate or amend the certifi cati on order

nunc pro tunc is prope r because t he circui t cle rk' s failure to provide noti ce of the entryof the certi ficat ion orde r preju diced th eir right to file a p etition fo r leave to app eal. Th e Illinois Supr eme Court has cons idered and rejec ted s imila r arg um ents
. M itchell v. Fiat -Alli s, I nc. , 158 Ill . 2d 143, 632 N. E.2d 10 10 (1 994 ); Gra nite Ci ty Lodge No. 272, Loyal Order of t he Moose v. City o

f Gra nite C ity , 141 Ill. 2d 122, 56 5 N.E .2d 929 (1 990). In Mitchell

v. Fiat -Alli s, I nc. , the trial c ourt si gned an order di sposing of t he case on15

Februa ry27, 1991. The or der was file -stamped M arch 1 , 1991 , and in clude d instru ctions to the circui t court

clerk to send a copy

of the or de r to th e a tto rn eys of re co rd . M itc he ll's attor neyfirs t learned of

the o rde r on Ap ril 25 , 199 1. After confer ring wit h opposing counse l and th e tri al co urt, Mit ch el l' s c oun se l f il eda p et itio n t o wi th dr aw or vacat e the or de r. On Ap ril 29, 1991, t

he tri al court

granted t

he peti tion , withdre w the order dat ed February 27, 1991, and reent ered the same order, effecti ve April 29, 1991. The appell ate court found that it had jurisdiction an d conside red the m erits of the appe al. The Illinois Sup reme C ourt
revers ed, finding t

hat the tri al court

lacked t he authori ty

to vacat e and reent er the order m ore than 30 days after

it had be en enter ed. The supre me court hel d t hat trial co urts lacked t he autho rityto excuse c ompliance wit h the supreme court

rules governing the time for fil ing a not ice o f ap pea l. Fiat-Allis, Inc. , 158 Il l. 2d at 150, 632 N.E. 2d at 1012. The supreme court

has stat ed clear ly

that t he parti es bear t

he responsibili ty

to monit or the stat us of a case and th at this res pon sibility is not lesse ned w here th e circu it clerk fails to give notice of the e ntryof th e or der

. Fiat-Allis, Inc. , 158 Il l. 2d at 151, 632 N.E.2d at 1013; Gra nite City Lodge No. 272, Loyal Order of the M oose , 141 Ill . 2d at 127, 565 N.E.2d at

931. Actual notice is not re quired so lon g as th e ord er app ealed from wa s exp ressed pub licly, in words, at the sit

us of th e pr oce edin g. Fiat-Allis, Inc. , 158 Il l. 2d at 148, 632 N.E.2d at 1012; Gra nite City Lodge No. 272, Loyal Order of the M oose , 141 Ill . 2d at 123, 565 N.E.2d at

929. The facts in the case at ba r are simil ar to t hose in Fiat-Allis, Inc. Here, a typewri tten orde r gran ting cla ss certif ication wa s enter ed into the co urt file on September 2, 2005, and its entry was noted in t

he computeri zed docket shee t. The defe ndants i ndicat ed that they fi rst learne d of the orde r on January 11, 2006, mont

hs after the time for fil ing a pet iti on for leave to appe al had passe d. Th ey filed a m otion to vacate or amend the certific ation order nunc pro tunc on January

25, 2006. On Jan uary 30, 2006, t

he tri al court

entere d an order vac ating

nunc pro tunc the order

entere d September 2, 2005, and amended i t to be e ntered J anuary 11,16

2006. In our vi ew, the deci sion in Fiat -Al lis, Inc. controls this issue. Th us, the trial court lackedthe autho rityto vacat e and reent er the s ame order more t han 30 days after

it had be en origi nally

entere d in order

to excuse c ompliance wit h the fi ling r equirement s of Rule 306. The defendants have also a ssert ed that T we ntieth Ju dicial C ircuit Rule 2.06 r equires the circui t cle rk to se rve copie s of order s to t he att orney s of recor d, that they reli ed on the circuit clerk to comply wit h the rul e, and t

hat the y were pr ejudic ed by t he circ uit cl erk 's f ail ure to comply . Local r ule 2. 06 direct s the ci rcuit clerk to serve on al l the parti es of record, by per sonal se rvice or bymail, a copy of an order wit hin thr ee days of its entry and to not e in th e co urt f

ile co mp lianc e w ith th e ru le. 20 th Ju dicia l Cir

. Ct. R . 2.06 ( eff. Dece mb er 12 , 1991 ). Un der S upre me C ourt R ule 21 (a) (13 4 Ill. 2d R . 21(a)) , the circu it court is aut

horized to adopt rul es forthe ord erly dispo sition o f its business . However, l ocal rules may not be constr

ued to modify , limit, abrogate , or ot herwise confl ict

with the Illino is Supr eme Court rul es and the e xist ing laws of I llino i s. See 134 Ill. 2d R . 21(a); People v. Schroeder , 102 Ill . App. 3d 133, 137, 429 N.E.2d 573, 577 (1981). We conclude that the circuit cour t had n o auth ority to to llorto ext endth e t ime for fil ing a Rule 306 appea l in or der to remedy

the ci rcuit

clerk' s failure to compl y wit h a localadminist

rati ve rule. Further more, the record belie s the defe ndants' assertions t hat they detri mentall y r elie d
on local rule 2. 01 and that they were prejudi ced by t

he circ uit cl erk' s noncomplianc e with the rule. In the pl eadings and a ffidavi ts fi led in t he tri al court , the defendants detai led the effo rts they had made to monit or the s tatus of the cl ass certifi cati on motion. The de fendant s' att or ne ys stat ed that the y assigne d par alega ls or oth er staff mem bers to mo nitor the cour t file
once the court

took the c lass c erti ficat ion moti on unde r advisement . In addi tion, the defendants' attor

neys appeared i n open court on Sept ember 27, 2005, pri or to t he running of the 30-day

time l imit , to argue their summaryjudgment moti on. The record shows t hat the defe ndan ts had a mp le opp ortun ities to insp ect the cour t file and to asce rtain whetheran order17

had been entere d on the cla ss certif ication mo tion. W e find it rema rkab le and inexp licable that the attorney s did not

inquir e about the stat

us of the cl ass certifi cati on motion when they appeared before the court on Sept ember 27, 2005. The steps t aken by t he defend ants t o monitor the court file undermine their cl aims of reli ance on the loc al rule to their de trimen t. The defendants clai med thatthe circ uit cou rt has th e auth ority to vacat e or amend and to reente r an order

to avoid pr ejudic e to the parti es. I n support of that c ontenti on, they

cite d Comdisco, Inc. v. Dun & Bradstreet Corp. , 306 Ill. App. 3d 197, 713 N.E.2d 698 (19 99), and Graves v. Pontiac Firefighter s' Pension Board , 281 Ill. App . 3d 508, 66 7 N.E .2d 136 (1 996). In Graves v. Pontiac Firefighters' Pension Board , the trial court entere d an order at the close of the evi dence, stating t

hat the case was being t aken under advi sement andthat t he co urt
w ould rule by

mail. Subsequentl y, the trial c ourt r uled on the motion, but thr ough an oversi ght it did not send copi es to t he parti es. When the over sight was br ou gh t to th e c ou rt's atte ntion, it ent ered a new order a cknowledging i ts over sight and providi ng that t

he earl ier orderwo uld be finalfor pur pos es of ap pe al as of

th e d at e tha t t

he ne w or de r wa s ma il ed . A n appeal was taken within 30 days of the new order. In consi dering whethe r the app eal had been timel y fi led for pur poses of j urisdi ction, our collea gues in the F ourth Distric t held that because the trial co urt had expr essly stat ed that it would r

ule by mail, the initialorder di d not comp ort with the pro vision s of th e cou rt's prono unce men ts and it did notbeco me final un til
ma iled b y the c ircu it cou rt. Graves , 281 Il l. App. 3d at 516, 667 N.E. 2d at 141. The facts and circumst ances in Comdisco, Inc. are sim ilar to those i n Graves in that the tri al court noted that the a ppellant relied on th e trial court's standard opera ting proced ure of maili ng a copyof the fi nal judgment to the parti es and that t

he court ha d fail ed to mailthe judgmentin th at ca se. Comdisco, Inc. , 306 Ill . App. 3dat 202, 713 N.E.2d at 700. The case before us is di sti nguishabl e from the afor ementioned ca ses on its facts. Here, the trial cou rt did n ot exp ressly prov ide tha t itwou ld rule by mail, and there is no eviden ce of a stan dard18

operating pro ced ure . As previously not ed, the detai ledaccounts of the act ions t aken by t

he defe ndan ts to monit or the status of the cer tifi cati on motion bel ie the clai ms of detri mental reli ance. As we review ed this is sue, w e fou nd it no tewo rthy that th e Fourth Distri ct has decli ned to exte nd the Comdisco, Inc. decisi on to a cas e where the t rialjudge did not

find that the pla inti ff's fail ure to timely file his not ice of appealhad b een th e direc t result of the
co ur t's not following its usual pract ice of mailing copies of its docket entries to t he parties. Pappas v. Waldron , 32 3 Il l. App. 3d 330 , 33 6, 7 51 N. E. 2d 1 276, 1280-81 ( 2001). The Fou rth Distric t also rec ently que stioned wh ether its decisi on in Graves is con sistent w ith the sup re me court r

ules and Fiat-A llis, Inc. Be rg v. W hite , 357 Ill . App. 3d 496, 501, 828 N. E.2d 889, 893 (2005) . The few decisi ons in which a court has employed equita ble prin ciples to cure the mistakes of minist erialofficer s are l imit ed to the specifi c facts and circumst ances presented in those cases. The case at bar i s not analogous to those cases. Although the issue was not raised by t he parties, we have also co nside red the prop riety of the " nunc pro tunc " order. The purpose of a nunc pro tunc order is to correct the rec ord of a ju dgm ent, to correct a clerical error or a m atter of form so tha t the rec ord c onf orm s to the judg men t actua ll y ren der ed b y the c our t. Beck v. Stepp , 144 Il l. 2d 232, 238-39, 579 N.E.2d 824 , 827- 28 (1 991 ); In re Marriage of Breslow , 306 Ill . App. 3d 41, 53, 713 N.E.2d 642, 651 (19 99)

. In this case, t he judge spec ific ally

stat ed that

he would enter

a nunc pro tunc order "i f that

in some way can protect [the defendants '] right

to appealth is t hi ng if t ha t's the right thing t o do." The nunc pro tunc order w as not is sued to confor m the order to the ruli ng actual ly

rende red o n September 2, 2005. It was not iss ued to amend an err ant provisi on in the Septe mber 2, 2005, order. Its only pur pose was to re start the 30- dayappe als clock. The sit

uationfaced b y the trial court is similar to that which con fronted the trial cou rt19

in Fiat-Allis, Inc. In that case, th e I llin oi s S up re m e C ou rt r ec og ni ze d t ha t th e c irc ui t co ur t's atte mpt to assis t counselwas understandable and well -int entione d, but the c ourt concluded that it wa s erra nt ju st the sam e. Fiat-Allis, Inc. , 158 Il l. 2d at 150, 632 N.E.2d at 1012. The sup re me court stat ed, "Att orney s are not excused from fol lowing the filing requir ements [of the supreme court

rules ] merely

because a j udge has recommended aproceduralroute t hat lies beyond the judge's aut hority to travel. " Fiat-Allis, Inc. , 158 I ll. 2d at 1 50, 6 32 N.E.2d at 1013. In our view , Fiat-Allis, Inc. contro ls the pr esen t case. E ach p arty had a respo nsibility to closely and adequately monit or the pr ogress of i ts cas e and the co urt's ruling s in ord er to
ensure that

the much-ant icipated pet iti on for leave to fi le the interloc utory app eal w as time ly file d. That was not accompl ished her e. The circui t cle rk' s failure to mai l copie s of the or der of Sep temb er 2, 20 05, to th e partie s doe s not e xcus e the u ntime ly fil ing o f the p eti tion for leav e to a ppe al. The nunc pro tunc order was not a valid me ans by wh ich the circuit court could reente r the exa ct same orde r and ther eby s tart a new 30-day period in which to file an interloc utory app eal. The record cl early

shows that

the order gran ting the class certification w as a part of the court fi le and avai lable for publi c inspection. I t was als o noted in t he docket en tri es . There is no provi sion for exte nding the time for fi ling a pe tition for i nterl ocutory appeal ot

her than by per

missi on of the re viewing court pursuant

to Rule 306(f

) , and that

was not done here. T he tim e for filing the petition for lea ve to a ppea l is jurisdictio nal, an d the failure to meet it or

to secur e a ti mely e xtensi on of time fr om the ap pellate court will r esult

in the dismis sal of the appeal . Accordingly, we find that the defendant s' Rul e 306(a)( 8) peti tion for leave to appe al the class certi ficat ion was unti mely f iled and that t

he appeal must

be dismis sed for a l ack of jur isdi ction. IV. Summary and Conclusion20

The Rule 306(a)( 8) ap p eal of the class ce rtification order is hereby dism issed for a lackof juri sdict ion. We hav e answered certified questions I an d I I I i n t he af fi r ma t i ve . We have determined that certified question II is not a p rope r que stion u nder Sup reme Co urt R ule 308, an d the re fo re we decli ned to addre ss it . We remand the case to the t rialcourt for

further proceedings.

Ru le 306(a)(8) ap peal dismissed ; certified questions an swered in part ; c ause remanded.

CHA PM AN , J., concurs.

JUSTICE W ELCH , dis senti ng: I r e spectful ly

dissent . I would decl ine to a ddress t he questi ons as ide ntifi ed by t he circuit court pur suant t o Supreme Court Rule 308( a) (155 Ill. 2d R . 308( a)), find ing the m to be inapposi te, and consider the propri ety

of the order t

hat gave r ise t o this appeal. In doing so, I would find t

hat the circuit co urt erred in denying the de fendan ts' motion for a sum mary judgmen t and woul d reverse that order, granting a judgment in favor of the defendants. A cc or di ng ly, I would find i t unne ce ss ar y to address the issues pert aining to class certi fica tion

. I p re se ntmy own overview of the compla int and its al legat ions, as well as the defendants' motion for a summary j udgment, because I feelit is necess ary for a f ull underst anding of m y position . This is a cl ass act ion seeki ng money damages for the purchase price paid by

the plaintiff for Bay col. According to t he firs t amended complai nt, t he plai ntiff
was prescr ibed, pur cha sed , and use d B ayco l, a drug manufactur ed, market ed, promot ed, and sold by t he defendants . The acti on is br oug ht o n behalf of al l the individual s who have21

purchasedBayco l but ex cludes any of those i ndividual s who have or had an act ion for damages for perso nal inju ries or d eath suffered as a result of using Baycol. Cou nts I and III of the fi rst amended complaint are brought

pursuant to the Consumer

Fraud and Deceptive Business Practi ces Act (t he Act) (815 I LCS 505/1 et seq. (West 2 004)), and count IIalle ges
com mo n law civil con spira cy to c om mit f rau d. The complaint

alle ges that

th e d ef en da nt s k no w in gl y, intentio nally, and/o r reckle ssly concealed

from government r egulat ors, the medicalcommunity , andconsumers known ris ks and dan ger s a ss oci at ed wi thth e us e of Ba ycol, w hile at the sam e time exag geratin g its effic ac y, with the intent t o cause cons um ers to purchase Bay col. It al leges t hat the defe ndan ts knew of serious risks and dangers as sociat ed with the use of Baycoland k nowingl yand in tention ally omitted from their pro mo tional m aterial an d adv ertisem ents these known risks anddangers. It al leges t hat in de ciding whether to pr escribe, rec ommend, and purchase Baycol, the medical community, health care insurers , and consumers, including the plain tiff, r eas ona bly relie d on thes e pr om otio nal m ateri als a nd a dve rtisem ents , wh ic h omitted and concea led the kno wn risks a nd dan gers of Baycol . The complai nt all eges that had consumers and phy sici ans, i ncluding t he plai ntiff

and/or her

physi cian, known of

these risks and dan ger s, the y wo uld not hav e pr esc ribe d or pur cha sed Ba ycol. Count I all eges that

the mere act

of offeri ng Baycol for sale as a con sum er pro duct is
a representation tha t the produc t is re asonabl y sa fe for it s int ended purpose and t hat the defe ndan ts knowingly

and inte ntional ly

concealed t

he known risks and dangers of Bay col with the intent t

hat the plaint iff purchase Baycol . The complai nt all eges that the pla inti ff was actua llydeceived and s uffered act ual damages in that

she spent

money to purchase the drug which she would nothave sp ent had sh e know n of the risks a nd dan gers associ ated therewith. It alle ges that

by t heir ac tions , the defendants committed consumerfraud within the meaning of th e A ct. C oun t I see ks d am age s in th e am oun t of th e pu rch ase pric e of the d rug .22

Count III a llege s that

by vi rtue of t

he concealment

of the ri sks and danger s associ ated with Bayco l, the defenda nts w ere ab le to ch arge p rices th at were far in exc ess of the fa ir marketvalue wh ich B aycol w ould have had b ut for th e con cealm ent an d that th e defenda nts knew that the prices charg ed fo r Bayco l far ex ceed ed its fair mar ket value. The complaint alle ges that in so acti ng, the defendants committed one or m ore u nfair a cts or p ractices with in the meaning of the Act . Count II I seek s dam ages "i n an amount equal to the dif ference between the pri ce charged for Baycol and the fai r market va lue which Bay col would h a ve had but for [the defendants'] omissions, suppressions, and/or concealments." Count II all eges common law civil conspir acy ba sed on the above violations of t he Ac t. The defend ants filed a m otion for a su mm ary judgmen t based prim ari ly on th e deposit ion test imonyof the plaintiff that pri or to pur chasing Bay col she had not seen, r ead,
or heard anything about the product

and that

she had reli ed so lel y on he r p hys ici an 's judgmentand not on any repres entat ion ormisrepr esentation of the defendants in purchas ing the product. The defendants'motion concluded that , accor dingly , the plaintiff was not, and could not have been, actual ly deceived by any r epresent ation, misrepr esentation, or concealment

by the de fend ants an d that an y s uch decepti on could not have been the prox imate ca us e o f th e p lai nt iff's d am ag es . A dd itio na lly, with respect to count I II, the defe ndan ts argued that the plaintiff' s theor y of damages , which the defendant s calla "market th eo ry" of damages, has bee n r ej ect ed b yth e I ll in oi s Supr eme Court. Fi nally , with r espect to count II , the defendants argued that they are e ntitled to a sum mary jud gm ent be caus e civil conspir acyis not

an independent

tort but must be pr emised on the commission of a n und erlying ind epe nde nt w ron g, in this c ase a vio latio n of the A ct. The plaintiff responded that, even if t he plai ntiff

had not seen or

heard any promotionalmateri als or adverti sements for

Baycol , the mere act of

offering t

he product f

or23

sale is a repres entat ion to t he plai ntiff

that it is safe for its in tende d use , that the d efen dants knew that

this was not tr

ue and conceal ed the tr

ue ris ks and dangers of Baycol , and that the plaintiff relied o n th e defendan ts' concealment in purchas ing the product. The plaintiff concludedthat, accordi ngly , the plaintiff was actual ly deceived and t

hat this actualdecepti on
was the pro xima te caus e of h er dam ages . Furth ermo re, the p laintiff a rgue d that p roxim ate causati on is est ablis hed based on the concealment from medical provider s of the t rue risks and dangers of Bay col, which concealment was intended to, and did, r each the pl ainti ff. Thu s, the pla intiff ar gued , she w as ind irectly dece ived b y the defenda nts' con duct. Pr eli m in ar ily, I wou ld decline to ad dre ss the qu estions as identified b y the circuit court pursuant to Supreme Court Rul e 308(a) ( 155 Ill . 2d R. 308(a )), finding t hem to be inapposi te. When in it s discr etion t his court all ows an appe a l und er Ru le 308 , it is not limite d to answering the qu estions that t he tri al cou rt ha s ide ntifi ed. First of America Bank-Illinois, N.A. v. Drum , 295 Ill. A pp . 3d 20 5, 2 11 (1 99 8) . In ste ad , th is c ou rt m ay, pur suantto Supr eme Cou rt Ru le 366 (a)(5) (1 55 Ill. 2d R. 366(a)( 5)), enter anyjudgment and make any order t hat ought to have beengiven or made, and it c an make any ot her and furt

her order s and grant

any reli ef that t he case ma y requ ire. Drum , 295 Il l. App. 3d at 211; s ee also Schrock v. Shoemaker , 159 Il l. 2d 5 33, 537 (1 994 ). The p urpos e of an appe al pur suantto Supr eme Cou rt Rule 308(a) i s to "mat erial ly advance the ultimat e termi nationof the litigati on." 155 Ill. 2d R . 308(a). In this particular case, I do not beli eve that answering t

he questi ons certi fiedby t

he circ uit cour

t willserve t o materi ally advance the ultima te term ination of this litiga tion

. In st ead , Ibel ie ve t hat th e i nt er es ts of j udi ci al eco nomy and the need t o reach an equita ble result oblige t his cour t to go beyond the questions of l aw presented and consider the pro priety of th e ord er that g ave ris e to the appe al. See Bright v. Dicke , 166 Il l. 2d 204, 208 (1995). In any eve nt, e ven if I were to answer the ce rti fied questions, given the facts a s present ed bythis case, Iwould answer them in t he negati ve for the reasons whic h follow and,24

because the questi ons are cont roll ing, c onclude that the circui t court erred i n denyi ng the defe ndan ts' motion for a s um mary jud gm ent. A su m m ar y j udgm ent is proper where the pleadings, affidavi ts, deposit ions, admissions, and exhibi ts on fi le, when viewed in the l ightmo st favo rable to the n onm ovan t, reveal that t

here is no genuine i ssue re gard ing an y material fact an d that th e mo vant is entitledto a ju dgm ent a s a m atter of la w. 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 37 4. A sum mary jud gm ent in favor of a d efen dant is prope r when a plai ntiff cannot establishan essent ial e lement of her cause of act ion. Volpe v. I KO Industries, Ltd. , 327 I ll. App. 3d 567, 577-78 ( 2002). Alt hough the pla inti ff need not prove her case at the su mm ary jud gment sta ge, she must come forward with evi dence that establ ishes a

genuine i ssue of
ma teria l fac t. Wasik v. Allst ate Ins urance Co. , 351 Ill. A pp. 3 d 26 0, 26 4 (2 004 ). Section1 0a(a) of

the Act (815 I LCS 505/10a(a) (West 2004)) expr essly

authori zes private causes of acti on for viol ations of the Act. It pr ovides, "Any pers on who suffers act ual damage as a res ult of a

violation of [the] Act committ ed by any other per son may br ing an acti on against such person." 815 ILC S 50 5/10 a(a) (W est 20 04). It is now well-settled t hat this section requ ires pro of b oth that " actualdamage" had been inc urred andthat t he damage
was prox imate lycaused by the viol ation of

the Act. See Olivei ra v. Amoco Oil Co. , 201 I ll. 2d 134 , 149 ( 200 2); Barbara's Sales, Inc. v. Intel Corp. , 227 Il l. 2d 45, 72 ( 200 7). A
summ ary judgment for

the defendant s was proper i n the case at bar be cause the plaintiff cannot est ablis h these es senti al el ements of her cause of act ion. I begin with c ount I and t he element of

prox im ate ca us e. A su cc es sf ul cla im by a private indivi dual sui ng under section 10a of the Act (815 ILC S 5/10a(a) (West 2004)) must dem onstra te that t

he fraud complained of proximat ely caused the pl ain tif

f's inju ry. Zekman25

v. Direct American Marketers, Inc. , 182 Ill. 2d 359 , 373 (19 98)

. In Zekman , a case rema rkab ly similar to th e case at bar, th e plain tif f fil ed a c lass acti on against

AT& T and allege d violation s o f the Act, after he had recei ved a seri es of maili ngs from Direct

American Marketers , Inc. , indi cati ng that he had won a prize. W hile it was po ssibl e to res pond by mail , the maili ngs urged the reci pient to tele phone a "900" number to claim the priz e. Of cour se, by calli ng t he "900" number the reci pient incurred charges. These charges , as well as t he option to respondby mail, were stated in the maili ngs, althoughin les s conspic uous ty pe. The plaintiff

made num erous such calls to "900" n umb ers but wo n on ly nomin al prizes of discount coupons. AT&T billed t he plai ntiff

for the tele phone charges and

retai ned a percent age of the charge for it self; the major ity of the cha rge we nt to the d irect ma rke ter. In his deposition, the plaintiff admit ted that he knew prior

to plac ing the "900 " calls both that he could have responded by mail and t

hat he would be charged for the call s. Upon placi ng the cal ls, the pla inti ff was further informed that he would be charged and could hang up immediate ly

without being charged. The plaintiff made at least 24 such telephone calls. The plainti ff's com pla int al leged that AT&T obtained money by means of a decept ive practic e und er the A ct. In its mo tio n for a summary j udgment, AT&T argued that t he plai ntiff

's de posit ion test imonydem onstra ted tha t the pla intiff h ad no t been actua llydeceived by the mail ings or the tele phone bi lls an d t ha t th e p lai nt iff th er ef or e c ou ld no t es tab lis h t ha t an y of A T& T's alle ged mis condu ct had caus ed him inj ury . AT&T argued that the plaintiff' s deposition test imonyestabl ished t

hat the conduct complained of was not the proximate cause of any har m, a s the Ac t req uire s. In affirm in g the summary judgment for

AT& T, the s upreme court pointed out

that secti on 10a(a) of the Act, which governs private causes o f acti on under the Act , mandates26

that an indivi dual' s damages be " ' a resul t of a violation of [the] Act.'" Zekman , 182 Il l. 2d at 373 (quoting 815 ILC S 5/10a(a) (West 1992)). Thus, the Act requires that a succ es sful claim by a private indivi dual sui ng under the Act demonstrat e that

the fraud complai ned of prox imate lycau sed the p laint iff's injury. Zekman , 182 I ll. 2d at 3 73 . B ec au se th e p lai nt iff's deposit ion test imony es tabli shed that he had not been ac tually dece ivedby AT&T's conduct and that the conduct complained of was not the proxi mate cause of hi s inj ury , AT&T w as entitledto a summ ary ju dg m en t o n t he cla im . B as ed on th e p lai nt iff's d ep os itio n t es tim on y, there wa s no g enuin e issue of m aterial fa ct rega rding wh ether th e alleg edly decepti ve nature of the maili ngs recei ved by t he plai ntiff

caused him t o incur t

he charges for

the "900" number calls. Zekman , 182 Il l. 2d at 375. Rat her, i t appear ed that

the pla inti ff underst ood the requ ireme nts and costs of the p rog ram . Zekman , 182 Ill . 2d at 375. Based on the testimony bythe p l ainti ff at hi s deposition, t here was no genuine issue of materi al fact

regardi ng whethert he all ege d v io lat io ns of th e A ct b y A T& T p ro xi m ate ly ca us ed th e p lai nt iff's damage, for the pl ainti ff's test imony demonst rated t hat he had no t b ee n d ec eiv ed by A T& T's actio ns. Zekman , 182 Ill. 2d at 37 6. Sim ila rly, the pla intiff's de positio n testim ony in the case a t bar es tablishe s that th e conductcomplained of was not the proximate cause of her injury . The plaintiff 's de posit ion test imonypreclude s her fr om establi shing that the alle ged misconduct of the defe ndant s prox imate ly caused her d ama ges. T he pla intiff tes tified u nequ ivoca lly in a deposition that in purchasi ng Baycol she rel ied exclusivel y on her physi cian' s advice and that p rior to purchasi ng it s he had never hear d, read, or seen any thing about the product and kne w nothing about it. She had never hear d, read, or seen any informat ion regarding the effectiveness of Baycol or the pr esence or a bsence of any

risks or dangers associ ated w ith the med icat ion. Sh e w as n ot d ece ived by the defend ants
. In Barbara's Sales, Inc. , 227 Il l. 2d at 76, t he supreme court

he ld that

certain27

statem ents mad e by the d efen dant/se ller we re no t action able because no plaintiff wa s aware of the st atements . The court pointed out

that under O live ira v. Amoco Oil Co. , 201 Il l. 2d 134 (2 00 2) , an d i ts p ro ge ny ( Avery v. State Farm Mutual AutomobileInsuranceCo. , 216 I ll. 2d 100 (2005); Shannon v. Bois e Cascade Corp. , 208 I ll. 2d 51 7 (20 04); Zekman v. Direct American Marketers, Inc. , 182 Ill. 2d 359 (199 8)), plaintiffs must pro ve that each and ev ery
consumerwho seeks redres s actual ly saw and was deceived by the st atements in quest ion. Based on th e testim ony of the pla intiff at h er dep osition , I do n ot belie ve tha t th e re remains a genuine i ssue of material f act re garding whetherthe al leged vi olati ons of the Act bythe defendant s proximat ely caused her

damage, for the pl ainti ff's test imony demonst rates that s he w as n ot d ece ived by the defend ants ' actio ns. Nevertheless, count I of the plainti ff's complaint al leges t hat regardles s of whether s he
eversaw , heard , or read any pro mo tional m ate rials or advertisements about Bay col, the defendants' mere ac t of selling the drug constitutes a repre se ntation that it is safe for its inten ded purpose and t hat the plaintiff rel ied on thi s fals e repres entat ion in pur ch asin g Bayco l. I point

out initially t

hat the alle gation t

hat the mere actof sell ing the dr ug consti tutes
a repres entat ion that

it i s saf e for it s int ended purpose i s a legalconclusi on and not an alle gationof fact. Accordingly , it need not be acc eptedas true
. Kubik v. CNA Financial Corp. , 96 Ill . App. 3d 715, 719 ( 1981). I n any eve nt, most , if not all, prescr ipti on medicat ion s carry

some risks and dangers. This is why they are avai lable by pr escription
on ly. The mere act of s elling a prescr ipti on medicati on is not a repres entat ion that it is safe for its intende d use. Indeed, it may not be safe, but it s ris ks and dangers may be outweighed bythe ri sks anddan ger s of the m edic al co ndi tion that i t is pr esc ribe d to treat
. The plaintiff simply cannotestabl ish that she was act ually deceived by

the defendant s' c onduct andthat this deception was the proxima te cause of her dam ages. Ac cordingly, I b elie ve that the circuit court erred i n denyi ng the defend ants ' mo tion for a su mm ary jud gm ent o n co unt I.28

The defendants ar e entit led to a s um m ar y ju dg m en t o n c ou nt I o f th e p lai nt iff's complaint

for y et another reas on: the pl ainti ff cannot es tabli sh t hat she s uffered "ac tual damage" as a res ult of her purchas e of Baycol . In or der to recove r under t he Act, a pl ainti ff must establ ish that she s uffered " actual damage as a res ult o f a v iolat ion of [ the] Ac t." (Em phas is add ed.) 81 5 ILC S 50 5/10 a(a) (W est 20 04); Oliveira , 201 Il l. 2d at 149. In Avery v. State Farm Mutual Automobile I nsurance Co. , 216 Ill. 2d 100 (20 05) , a pl ain tif f's cause of acti on under the Act fail ed in part

because he was unable t o prove act ual damage. That case i nvolved a cl ai m tha t t he de fend ant ha d vio lated th e A ct by failing to disclose its policy of substituting nono riginal equipm ent man ufacturer p arts f or ori ginal manufacturer

parts whe n repairing insu red vehicles. T he suprem e court held th at the c laim of the na med plaintiff

De Fran k m ust fail because he fai led to a llege or prove act ual damages. DeF rank testified that, after repairs had b een m ade u nder his insura nce c ontrac t with S tate Farm M utu al Au tomo bil e Insurance Company in which nonoriginalequipment manufact urer parts w ere us ed, he sold h is veh icle in an arm's-len gth tran saction for w hat w as ad mitted ly the same price he w ould have receiv ed ha d the v ehicle had origi nal equi pment manufactur er parts on it. It had made no di fference i n the val ue of the vehi cle that nonorigi nal equipment manufacturer

parts h ad be en us ed in the repa ir. Accordingly , the plaintiff DeFrankhad not suffere d ac tual d am age and cou ld n ot p rev ail on his c laim und er th e A ct. Si m ila rly, in the c ase at bar the pl ainti ff cannot es tabli sh that she suffere d actual damage as a res ult of h er pu rchas e of B aycol, eve n if that purc hase was in r eliance on dece pti ve conduct by

the defendant s. The pl ainti ff purchased and paid for acholes terol

lowering drug. The compla int does not all ege that the plaintiff suffe red any person al injury
as a resul t of

using the drug, nor

does she al lege that the drug did not work to lower her chole sterol. If, in fact, the drug lowered the plaintiff' s c holest erol without ca using any adverse side effects or personal i njuries, then the plaintiff got exactl y what s he paid for : an29

effecti ve, safe, c holest erol- lowering dr ug. I not e that

the pl aint iff has as sert ed her physi cian/

patie nt privi lege (735 I LCS 5/8-802 (W est 20 04)) w ith resp ect to her own medical records. A cc or di ng ly, she is un able to prove the essentialelement of actual damage as a
r esult of he r p ur ch as e o f B ayc ol , an d t he de fe nd an ts w er e e nt itle d t o a su m m ar y j udgmen t
on co unt I o f the p laintiff's co mp laint. I believe that t

he defendants were also entitled to a summ ary judgmen t on coun t III of the pla intiff's co mp laint, w hich a lso alleg ed a v iolation of th e Act. Dispos itive on this count is the supreme court 's de cisi on in Oli veira v . Amo co Oi l Co

. , 201 Ill . 2d 134, 140 (2002). As is Zekman v Direct American Markete rs, I nc. , 182 Ill. 2d 359 (19 98) , Oliveira is remarkabl y similar to the case at bar. In Oliveira , the named plaintiff i n a class acti on againstAmoco O il Company(Amoco) complained t hat Amoco had falsely adver tis ed i ts premium gaso li ne as super ior t o other gr ades of gasol ine, thereby violating the Act . The plaintiff allege d in h is com plaint th at the false ad vertisem ents p roxim ately caus ed him actual damage. The co mplaint did n ot allege, how ever, that t he advert isements induced the plai ntiff to buy the gasoline or t

hat he was deceived by the ads, nor did i t all ege that the pla inti ff had seen, heard, or

read any

of the al legedl y dece ptive a dverti sem ents. Inste ad, the plai ntiff alle ged that he was damaged because the ads creat ed an ar tific ially i nflat ed price for the gasoli ne that he purchased. The complaint alleged that t hese false a dverti sements i ncreased
con sum e r demand for premium g asoli ne, al lowing Amoco to charge an inflat ed price , the reby causing actual dam age to all the pu rchasers of the gasol ine, regardless of whe ther they were
aware of the ads at the time of purchas e. The plaintiff advan ced w hat the suprem e court referr ed to as a " market theory " of causat ion: t he decepti ve ads incr eased demand, which drove up the price; al l the purchasers of the pre mium gasoli ne paid an i ncreased price because of the allegedly deceptive ads, rega rdles s of whether t hey had s een or rel ied upon the adverti sement at

issue. As in the ca se atbar, t he remedysought was the differe nce30

between the artif

icia lly infla ted price and the pri ce that would have been paid a bsent t he dec eptio n. In rejec ting t

he plai ntiff

's t heory of causat ion, the Illino is Supreme Court rea ffirmed that inor der

to pr eva ilon acl ai m b rought un der se ction 1 0a(a) o f the A ct, a priv ate indivi dual must plead and prove act ual damage proxi mately caused by

the deception. Oliveira , 201 Ill . 2d at

149. The court

concludedthat its deci sion i n Zekman control led. In Zekman , the pla inti ff's clai m failed as a matter of law because he was not act ually deceived. Oliveira , 201 Ill . 2d at

154. Simil arly , in Oliveira , th e s up re m e c ou rt f ou nd th at t he pl ain tif

f's complaint

fa iled t o a lle ge th at h e w as in an y m an ne r a ctu all y de ce iv ed by A m oc o's advertisements: "Plain tif f does no t al leg e th at h e w as , in an y m an ne r, d ec eiv ed by d ef en da nt 's advertisements. Plaintiff does not alle ge that he recei ved anyt hing other

than what he expectedto rece ive when he purchas ed defend ant's g aso line, i.e

. , a certa in amount of gasoli ne, with a certain oc tane l evel, for the price l ist ed on the pump. Indeed, plaintiff could not allege that defendant' s advertisements deceived him or misl ed him a s to what he was recei ving when he made his pur chase. Becaus e plai ntiff does not al lege that he saw, heard[ ,] or

read any

of defendant' s ads, plaintiff cannot alle ge that

he belie ved that he was buyi ng gasoli ne which benefitted the environment or improved engine performance." Oliveira , 201 Il l. 2d at 154-55. Si m ila rly, in the case at bar t he plaintiff cannot est ablish that she w as, in any mann er, deceivedbythe defendant s' c onduct. Nor can she est ablis h that she received anyt

hing other than wh at she e xpec ted to re ceive wh en sh e pur chas ed the defe ndan ts' medic ati on , a medicati on wh ich w as pre scrib ed by her p hysi cian and which might very well have effe ctively worked to lower t he plai ntiff

's c holest erol. The plaintiff admitt ed that

she never
saw, heard, or

read any informat ion about Bay col pri or to pur chasing i t and that she r elie d31

entire lyon the advi ce of her phy sici an in purcha sing i t. Accordingly , the plaintiff canno t establishthat s he suffered a ctualdamage proximate ly caused by

the defendant s' a llege d decepti on. The supreme court

ag ain reje cted th e viab ility of a "m arket th eory" of caus ation in Barbara's Sales, Inc. , 227 Ill. 2d at 76

. A similar

decisi on was reached i n Shannon v. Bois e Cascade Corp. , 208 Ill . 2d 517 (2004). In that

case the plaintiffs fi led a cl ass act ion under t he Act agains t the manufacturer of co mp osite sid ing an d alleg ed tha t it had d ecep tively adv ertised its p rodu ct. Admissions in all t he plai ntiff

s' de posit ions est ablis hed that none had recei ved an y r epres entat ions regardi ng the p rod uct f rom the d efe nda nt. The complaint did not al lege that any named builder, archite ct, or en ginee r had receiv ed an y produ ct li tera ture or that any pl ainti ff communicatedwith any builder , architect , orengineer who had recei ved product l iter ature. The com plaint se t forth a "m arket th eory" of caus ation sim ilar to that put forth i n Oliveira

. The circuit court gr anted the defendant a s ummary judgment on the basi s that

the pla inti ffs had not been aware of t he defendant' s adve rti sing and t hat the clai med damages were not pro xim ately c aus ed b y the a llege d de cep tive a dve rtisin g. O n appea l, t

he supreme court

affirmed t

he summary j udgment in favor of the defe ndan t. The plaintiff s' com plaint d id not all ege that any dec eptive adverti sing had been recei ved by any

plaintiff or byany bui lder, archit ect, engineer , or ot her like pe rson somehow connectedwith a plaint iff

. Shannon , 208 Il l. 2d at 525. The pl ainti ffs' market theory of causati on had been rej ected i n Oliveira and was simil arly rejec ted here . The adverti sing had not deceived t

he plai ntiff

s an d, thus , coul d not have proximately caused the clai med dam age s. Shannon , 208 Ill. 2d at 52 5. Of particular

relevance to the case at bar i s the supr eme court' s stat ement in Shannon , 208 Ill. 2d at 525-26, that a lthough pr oof of actualdecepti on of a plai ntiff

is re quired, that32

is not to say

that t he decepti on must alway s be dir ect bet ween the defendant

and the pl ainti ff to sati sfythe requirement of pr oximate caus e under the A ct . Th e court s tate d that i f the productlit eratur e had in fact deceived a parti cular

builde r, architec t, or contr actor, resul ting in the ins tall ation of

defective sidi ng on a home, the dam age c ould arguably have occurr ed
as a resul t of the indir ect deception, a s requi red b y th e Act. In t hose cir cumstances, the purchase r, who might have no independe nt knowledge of t he quali ties or expected performance standards of si din g, is deceived b ecause o f the dece ption of the b uilder, archite ct, or co ntracto r, wh o reas onab ly should have had c orrect kno wled ge. H ow ever, in Shannon , th e p lai nt iff s h ad no t p led an y fa cts to su pp or t th at t he or y. Sim ila rly, in the c a se at ba r, the pla intiff h as no t pled su fficien t facts to supp ort a theory that he r own physi cian, who prescri bed Baycol for her, had seen, r ead, or he ard any promotionalmateri al or adve rti sements or recei ve d any pr oduct literat ure from the defe ndan ts and in fact

been deceive d. Ins tead, the complaint makes general alle gations that the defe ndan ts adv ertised B aycol in p ublica tions w hich p hysicians com mo nly read andthat those adverti sements were mis leadi ng or fals e. The complai nt does not alle ge that

the pl ain tif f's ph ys i cian re ceived any of those publ icat ions, saw the fal se or misl eading advertisements, and was deceived t hereb y, no r did the plaintiff prese nt any ev idenc e to support this theory

in opposi tion t o the moti on for a s um m ar y j udg men t. Indee d, it is poss ible that t

he pl ain tif

f's physici an knew o f the risks and dangers associated with t he use of Baycolbut dete rminedthat t he ris ks and dangers as sociat ed with the plaintiff' s elevat ed cholest erol outweighed the ris ks and dangers associ ated w ith the d rug. Accordingly , the plaintiff can rel y onthis theory

no more than could the plaintiffs i n Shannon . I bel ieve that the circuit court erred in de nying the defen dants' motion for a summary j udgment on count III. Fi na lly, coun t II soun ds in com mo n law civil co nspira cy, whic h is not an inde pendent33

tort but rise s or fal ls with the pla inti ff's clai ms under the Act. See Indeck North Ameri can Power Fund, L. P. v. Norweb PLC , 316 I ll . App. 3d 41 6, 43 2 (2 000 ). A cco rdin gly, a j udgment in the de fendants'favor on count s I and II I must al so resul t in ajudg men t in th e defend ants ' fav or o n co unt II. Having concluded that the tri al court erred i n denying the defendants' motion for a
summ ary judgment and having concluded t hat the co urt's orde r mu st be re verse d, I w ould have found it

unnecessar

y t o address t

he issue s rel ating to the cl ass certifi cati on.NO. 5-06-0077 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ TERES A DE BOUS E, In di vi dua llyan d On ) Appeal from the Behalf of Others Similarly Situat ed, ) Circuit Court of ) St . C lai r C ou nt y. Plaintiff-Appell ee, ) ) v. ) No. 04-L-53 ) BAYER AG, BAYER COR PORATI ON, ) SMIT HKLI NE BEE CHAM CORPORA TI ON, ) d/b /a G LA XO SM ITH KL IN E, ) GL AXO SMI TH KL I NE PL C, MAR CY G RI M, ) M ICH AE L H AR VE Y D AV ID SO N, M .D., ) andMICHAEL LEVER, ) Ho nora ble ) M ich ae l J. O 'M all ey, Defendan ts-Appellants. ) Judge, pr esidi ng.

___________________________________________________________________________________ Opinion Filed : October 9, 2008

___________________________________________________________________________________ Justice s : Honorable James K . Donovan, J.

Ho nor able M eliss a A . Ch apm an, J ., Con curs Ho nor able Th om as M . W elch , J., Diss ents

___________________________________________________________________________________ Atto rneys Ka ther ine M . Fo wle r, Te rry Lu eck enh off , On e S. M em oria l Dr ive, 1 2th Flo or, for St. Louis, M O 63 101; Step hen C . Carlson, J. Ran dal W exler, Charles K . Schafer, Ap pellants Sidley Austin LLP, One South Dearborn St reet , Ch icago, IL 60603; Andrew Goldman, Phil lip Beck, Bartlit Beck Herman Palenchar & Scott, 54 West Hubbard, Suite 30 0, C hi ca go , IL 60 61 0 ( att or ne ys for B ay erAG, Bay erCorp. , Mar cy Gri m, Mich ael Leve r) John E. Galvin, Jonathan H. Gars ide, Fox Galvin, LLC, One M emo rial Dr ive, E ighth Floor, St . Lo ui s, MO 63102 (a tt orney s f orSmi th Kli ne Be ech am Co rp., d/b/a Glaxo SmithK line, GlaxoS mithK line PLC )

___________________________________________________________________________________ Atto rneys Joh n J. D risco ll, Br ow n & Cro upp en, P .C., 7 20 O live S treet , Su ite 18 00, for St. L oui s, M O 6 310 1; C hrist oph er C ueto , La w O ffic e of Ch risto phe r Cu eto, P .C., Appellee 7110 West Main Street , Bell evill e, IL 62223

___________________________________________________________________________________35