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Appeal Allowed In De Bouse v. Bayer

By James M. Beck and Mark Herrmann

This post discusses a piece of the Baycol litigation, in which Bexis's firm is involved. Herrmann alone is thus serving as your humble scribe.

It's altogether fitting and proper that he should do this, because the news relates to Illinois, Herrmann's (relatively) new home state.

Chicagoans were justifiably proud on Election Night, as crowds poured into Grant Park to celebrate the election of a favorite son to the presidency. Just two months later, Chicagoans hid their faces in shame, as the state legislature impeached and convicted Governor Rod Blagojevich.
Four months ago, Chicago defense lawyers hid their faces in grief, as the Fifth District Court of Appeals (downstate of Chicago, by the way) decided De Bouse v. Bayer AG, 385 Ill. App. 3d 812, 896 N.E.2d 882 (Ill. App. 5 Dist. 2008). But last month (on January 28), those lawyers should have poured into Grant Park to celebrate, as the Illinois Supreme Court allowed an appeal in the case, offering a chance to restore sanity.

De Bouse is a putative class action pleading that Bayer AG and others committed common law fraud and violated the Illinois Consumer Fraud and Deceptive Business Practices Act by concealing negative safety and efficacy data about the prescription cholesterol drug Baycol.

At her deposition, plaintiff testified that she "had not seen, read, or heard" anything about Baycol and that "she relied on her physician's judgment in purchasing the product." Defendants moved for summary judgment on the ground that plaintiff "could not have been actually deceived or damaged by any misrepresentation or concealment by the defendants." The St. Clair County trial court denied defendants' motion for summary judgment and certified questions of law for interlocutory appellate review.

The questions the appellate court answered were: (1) whether a consumer can state a Consumer Fraud Act claim even though the drug company didn't communicate directly with the consumer, but rather allegedly made fraudulent statements or omissions to third parties, and (2) whether the purchase of an effective product that didn't hurt the plaintiff involved any compensable injury. We dealt with the second of these issues earlier, so if that's what interests you, go there. If the first issue tickles your fancy, read on.

As for reliance, the majority tiptoed through the precedents, distinguishing cases involving "affirmative representations" from cases involving "silent concealment" and distinguishing cases involving "direct deception" from cases involving "indirect deception." The majority held that "indirect deception by silent concealment" was sufficient to state a claim for statutory consumer fraud.

The dissent, in contrast, would have followed a string of Illinois precedent holding that a consumer who seeks statutory redress must see and be deceived by the statements in question. That was particularly true since De Bouse had not pled that her own prescribing physician "had seen, read, or heard any promotional material or advertisements or received any product literature from the defendants and in fact been deceived." There was thus no proximate causation -- nothing linking the alleged fraud to the plaintiff -- anywhere in the neighborhood.

De Bouse illustrates the dangers of courts interpreting statutory causes of action to create unlimited liability for defendants. The Illinois Supreme Court's allowance of an appeal may mean that the high court recognizes, and will correct, the appellate court's interpretation.

Full post as published by Drug and Device Law on February 17, 2009 (boomark / email).