Bayer didn't deceive public on risk of Baycol, Illinois Supreme Court rules

By Steve Korris | Dec 22, 2009



SPRINGFIELD – Drug makers don't deceive the public about risks in their pills by the simple act of selling them, the Supreme Court of Illinois ruled on Dec. 17.

"A drug manufacturer cannot say with complete certainty that its product, when used as intended, will be reasonably safe for all patients," Justice Rita Garman wrote.

"As a result, the mere sale of a prescription medication cannot be a representation which serves as the basis for a consumer fraud claim," she wrote.

"The risks associated with pharmaceuticals are a large part of the reason why a doctor's prescription is required for these medications," she wrote.

"A drug can often affect different patients differently, causing adverse side effects in one but not another," she wrote.

The Justices stopped a class action that St. Clair County Circuit Judge Michael O'Malley certified for Teresa De Bouse against drug maker Bayer.

Garman wrote that Bayer couldn't have deceived De Bouse about cholesterol drug Baycol because she knew nothing about it except that her doctor prescribed it.

Garman debunked De Bouse's theory of indirect deception as a rehash of "market causation" theory that the Court has consistently rejected.

"If there has been no communication with the plaintiff, there have been no statements and no omissions," she wrote.

"In such a situation, a plaintiff cannot prove proximate cause," she wrote.

De Bouse purchased Baycol tablets on three occasions in 2001, and stopped taking it after Bayer withdrew it due to association with a muscle disorder.

She sued Bayer, alleging no harmful side effects but seeking economic damages.

She argued that deceptive omissions about side effects allowed Bayer to inflate prices.

Bayer moved for summary judgment, and O'Malley denied it.

O'Malley didn't feel certain, so he certified questions to the Fifth District appeals court in Mount Vernon.

He asked whether a buyer of a drug later deemed unsafe could maintain a consumer fraud action even though the manufacturer didn't communicate with the buyer.

He asked whether offering a product for sale is a representation that the product is reasonably safe for its intended purpose.

He asked whether omissions made to third parties, with the intent that they reach a plaintiff, can support a consumer fraud action.

O'Malley then signed an order certifying De Bouse to lead a class action, but no one at the circuit clerk's office served the order on Bayer.

Bayer found out about the class certification order at a status hearing four months later, past the deadline to appeal it.

Bayer asked O'Malley to vacate the order and preserve its right to appeal.

O'Malley complied, vacating the order and signing a new one.

Bayer appealed, and Fifth District judges consolidated the class certification dispute with the pending dispute over summary judgment.

On summary judgment the Fifth District affirmed O'Malley, answering yes to his first and third questions while advising him to answer the second question.

They rejected the class certification appeal as untimely by enforcing the order Bayer never received.

At the Supreme Court, the date of the order didn't matter to the Justices because they didn't think De Bouse qualified to represent a class.

"A representative cannot adequately represent a class when the representative does not state a valid cause of action," Garman wrote.

Chief Justice Thomas Fitzgerald agreed, as did Justices Anne Burke, Charles Freeman, Lloyd Karmeier and Robert Thomas.

Justice Thomas Kilbride grumbled in partial dissent that his colleagues acted beyond the scope of the questions O'Malley certified.

He argued that they should have answered the questions and let O'Malley proceed.

He wrote that "equity calls on this court to endow the parties and the trial court with the opportunity to develop this case in an enlightened manner on remand by clarifying the relevant pleading standards."

Bayer was represented by Christopher Cueto of Belleville and John Cunningham, John Galvin, Andrew Goldman and Terry Lueckenhoff.

De Bouse was represented by John Driscoll of St. Louis.

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