If at first you don't succeed, merit trumps procedure

Steve Korris May 20, 2005, 4:03am


Christopher Byron

When attorney Christopher Byron filed a class action complaint against drug maker Bayer in Madison County, he alleged misrepresentations he could not prove, argued his economic theory incompletely, and relied in part on code instead of law.

His mistakes did not mean failure. Byron—the son of Circuit Judge Nicholas Byron—succeeded, carrying the case far enough for a more experienced attorney, Jeffrey Lowe of Clayton, Mo., to take over.

“We don’t assume that if you didn’t get it right the first time, you should lose,” said Washington University associate law professor Christopher Bracey.

According to Bracey and other civil procedure experts, courts freely permit amendments to complaints and other pleadings in the early stage of a case.

“Clarence Darrow won cases on technicalities because in his day, courts put procedure first,” Bracey said.

Now, he said, courts put the merits of a case first.

“Parties don’t always have a sense of how to articulate their case,” said Bracey. “With a new plaintiff or a new argument, you might have a better understanding of the dispute. You can clarify things so a jury or a judge can resolve them.”

In the class action suit against Bayer—which alleges the drug maker inflated the market value of Baycol, a cholesterol management drug, by misrepresenting and concealing its dangers—Lowe wrote a first amended complaint, seeking to cure the defects in Byron’s original.

The case has reached the Fifth District appellate court. In April and again in May, Circuit Judge George Moran certified for appellate review questions that the case raised.

“Courts don’t elevate form over substance,” said attorney Terrence Lavin of Chicago, immediate past president of the Illinois State Bar Association. Lavin said courts make sure that both sides have a fair opportunity to present a case.

“People add parties,” he said. “They add theories. They cure procedural defects.”

Multiple complaints are not unusual in complex cases before answers are required from defendants, Lavin added, saying that he has seen cases with as many as five amended complaints.

Local link to big guns

Bracey said cases often begin with faulty complaints because aggrieved parties usually do not go to “big gun” attorneys. He said they find attorneys through family and friends.

“Sole practitioners really can’t afford to get mired down in big corporate litigation,” said Bracey. “They may not recoup anything for two or three years.

“You can imagine the lawyer who initially filed the case might welcome a little help. The big dog lawyers come in and say, we need to get this lawsuit straightened out.”

The case

Byron filed the suit last July 15 for Nellie Jean Martin of Granite City and Georgina Toothaker of Collinsville. Byron listed his partner, Brian Kalb, and Lowe as associates.

Byron argued that Martin and Toothaker overpaid for Baycol because Bayer deceived them. He did not claim that they suffered any personal injury.

He charged that Bayer violated consumer protection laws of Illinois and Pennsylvania. A third count charged that Bayer violated the Uniform Commercial Code through a breach of an implied warranty.
Byron moved to certify Martin and Toothaker as representatives of a class of about 700,000 Baycol purchasers.

Chief Judge Edward Ferguson apparently did not notice who signed the complaint. He assigned the case to Judge Byron, who recused himself. Ferguson then assigned it to Moran.

Bayer moved to dismiss, arguing that plaintiffs admitted they suffered no personal injury and that plaintiffs could not recover damages under a market theory. Bayer argued that no state had adopted the Uniform Commercial Code as law.

Moran denied Bayer’s motion Jan. 25, but said he would consider certifying questions for interlocutory appeal if anyone asked.
Bayer submitted four questions Feb. 14. First, it asked if a plaintiff with no knowledge of misrepresentation or concealment prior to purchase could state a cause for a private right of action under the Illinois consumer fraud law.

Second, Bayer asked if a plaintiff could recover damages under Illinois law on a market effect that inflated the price above the fair value.

Third, it asked if a plaintiff could recover damages alleging that Bayer sold defective products without alleging personal injury or property damage.

Last, it asked if an Illinois resident could state a cause of action under Pennsylvania law.

The plaintiffs objected to the questions, but Byron did not write the brief. Lowe did.

The brief listed Byron and Kalb as associates. It identified them for the first time as members of Byron, Gerber, Petri and Kalb.
At a March 10 hearing, Lowe moved for leave to amend the complaint. Moran gave him 10 days to amend it. Moran also dismissed the Uniform Commercial Code count.

Lowe stuck to the market theory but identified a new point of deception. His complaint argued that Bayer deceived Martin and/or the physician who prescribed Baycol for her.

Lowe also deleted the word “misrepresentations” from two spots in Byron’s complaint.

On April 11, Moran certified Bayer’s questions for appellate review.
On April 20, Bayer moved to dismiss the amended complaint, arguing that it was no better than the first.

On May 12, Moran denied Bayer’s motion but ruled that his denial involved questions of law for appellate review. He certified the same questions he had certified in April.

Heather Langlois and Terry Lueckenhoff of the St. Louis firm of Williams, Venker and Sanders represent Bayer.

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