Tillery appeals class action dismissal

Steve Gonzalez Nov. 9, 2006, 7:02am

Attorney Stephen Tillery is appeling Madison County Circuit Judge Lola Maddox's dismissal of a class action lawsuit she ruled is nearly identical to a pending case against Bayer in St. Clair County.

The consumer fraud suit was first brought by Nellie J. Martin of Granite City and Georgina Toothaker of Collinsville on July 15, 2004. At the time it was the 15th lawsuit filed against Bayer in Madison County in four years.

The plaintiffs allege that Bayer engaged in deceptive advertising, hiding possible side effects of Baycol so it could charge more for the drug.

Baycol was once used to lower cholesterol levels.

At the Food and Drug Administration's urging, Baycol was removed from the U.S. market in August 2001, two years after it was first introduced. Since then, Bayer has reached settlements in more than 3,000 cases paying more than $1 billion to patients.

Baycol has been linked to about 100 deaths and a rare disease that leads to the breakdown of muscle tissue. Neither plaintiff in this case is alleging physical harm, however.

Maddox dismissed the suit on Aug. 10, after Bayer filed its motion in April pursuant to 2-619(a)(3) claiming there is another action pending in St. Clair County for the same cause.

In dismissing the suit Maddox wrote, "The class in St. Clair County is virtually identical to the class proposed herein."

The class in St. Clair County excludes all persons with claims for personal injury or property damage from Baycol while the Madison County class excludes only claims for personal injury or property damage but not claims for monetary damage by persons also having claims for personal injury or property damage from Baycol.

"There are some members of the proposed Madison County class that would not be included in the St. Clair County class," Maddox wrote. "Nonetheless, those members of the Madison County class not already in the St. Clair County class could seek leave to intervene in the St. Clair County class."

She also noted that since the class in St. Clair County has already been certified it presents a situation where the orderly administration of justice and conservation of judicial resources "cries out for dismissal of this action."

Maddox also said there is no reason or cause to believe that the St. Clair County Circuit Court cannot adequately process all aspects of the class action and also points out that Judge O'Malley's orders demonstrates his careful consideration of the legal issues involved in class certification.

"There appears to be no reason to believe that the members of the Madison County class cannot obtain full relief in the St. Clair County action," wrote Maddox.

Maddox also denied Tillery's motion to certify a nationwide class.

"Having determined that a class action on behalf of Illinois residents already pends in St. Clair County, the plaintiffs' request that the case proceed as a nationwide class action should be and is hereby denied," Judge Maddox wrote.

"The consumer fraud acts of other states will undoubtedly differ," she added citing the recent Avery decision which said that Illinois courts should not grant class action status when there is a significant difference between the law of Illinois and the laws of others states.

"The court concludes that the Illinois Consumer Fraud Act could not be applied to persons residing outside Illinois who did not purchase their Baycol here or have other significant contrasts with this state," she wrote.

Maddox also concluded that Pennsylvania law may also apply to many aspects of the litigation along with the consumer fraud acts of other states.

Baycol was in a class of drugs called statins, which inhibit an enzyme in the liver that controls the rate of cholesterol released in the body. The most popular statins are Lipitor and Zocor.

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