O'Malley says no conflict exists as future class action lawyer

By Steve Korris | May 13, 2010



If a judge who has presided over class action lawsuits announces he will transition into private practice as a class action lawyer, does that pose a conflict of interest while he is still a sitting judge?

St. Clair County Circuit Judge Michael O'Malley, who will open up an office in St. Clair County for the Carey & Danis firm of St. Louis after he retires July 31, said no.

"What would be the conflict?" he said.

He compared the transition to that of a criminal law judge retiring to become a criminal defense lawyer.

When O'Malley announced his retirement last month, he indicated he would pursue class actions against pharmaceutical companies.

During his tenure as judge, O'Malley has presided over at least one class action against drug companies. In 2005, he certified a case against Bayer and Glaxo Smith Kline, over the cholesterol fighting drug Baycol.

Lead plaintiff Teresa De Bouse, represented by Christopher Cueto and John Driscoll of Belleville, claimed no personal injury, but sought economic damages under Illinois consumer fraud law. She argued that Bayer inflated Baycol prices through deceptive omissions regarding potential side effects.

O'Malley certified the case on allegations that Bayer Corp. committed fraud in sales of Baycol.

Ed Murnane, president of the Illinois Civil Justice League, said the conflict question is a "good" one.

"It certainly is not for us to decide," he said. "And of course, voters no longer have any voice in it but maybe they'll think twice during the next election."

Last December, the Illinois Supreme Court reversed O'Malley in his certification of the De Bouse case and ordered him to grant summary judgment to Bayer.

On April 23, Bayer and Glaxo Smith Kline moved for summary judgment.

As of May 10, O'Malley had not set a hearing in the matter. He said in a phone interview Wednesday that a perfunctory order had already been entered in the case.

De Bouse background

In 2006, O'Malley vacated the certification order and signed another.

He denied summary judgment to Bayer and certified questions to the Fifth District appeals court in Mount Vernon.

Fifth District judges ruled that De Bouse could maintain a consumer fraud action even though Bayer didn't communicate with her.

They ruled that fraudulent statements or omissions made to third parties with intent to reach De Bouse could support a consumer fraud action.

Bayer petitioned the Supreme Court, where the Justices had just dealt a blow to class actions in Barbara's Sales v. Intel.

The Justices directed Fifth District judges to reconsider De Bouse in light of Barbara's Sales, but reconsideration produced the same result.

Bayer again petitioned the Supreme Court, pleading that De Bouse failed to prove actual damages or show proximate cause.

All seven Justices agreed.

Justice Rita Garman wrote that a consumer fraud plaintiff must be deceived by a statement or omission.

"If a consumer has neither seen nor heard any such statement, then she cannot have relied on the statement and, consequently, cannot prove proximate cause," she wrote.

She wrote that "we have consistently rejected the market theory of causation," and she also debunked a theory of indirect deception.

Then she captured in a nutshell the burden O'Malley chooses to carry from now on.

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

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

De Bouse didn't allege Bayer deceived her doctor, she wrote.

"De Bouse alleges the deception of unspecified persons having no demonstrated connection to her," she wrote.

Justice Thomas Kilbride concurred in debunking indirect deception, but in partial dissent he chided the rest for "premature reversal."

He would have let De Bouse start over in O'Malley's court with a clearer complaint.

Defendants also served their summary judgment motion on lawyers at Much Shelist Denenberg Ament and Rubenstein in Chicago.

Terry Lueckenhoff and Katherine Fowler, of Fox Galvin in St. Louis, represent Bayer.

So do Stephen Carlson, Randal Wexler, Charles Schafer, Phillip Beck and Andrew Goldman, all of Chicago.

John Galvin and Jonathan Garside, of Fox Galvin, represent Glaxo Smith Kline.

Ann Knef contributed to this article.

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