Baycol Drug Manufacturing Decision Reversed By Illinois Supreme Court

The Illinois Supreme Court recently clarified the scope of the Illinois Consumer Fraud Act in its decision in the pharmaceutical litigation case of De Bouse v. Bayer AG, et al., No. 107528. The Supreme Court ruled that a consumer could not bring an action claiming fraud under the Act if the consumer had not received deceptive information indirectly or directly from the defendant drug manufacturer.

In De Bouse, the plaintiff was claiming economic damages against Bayer AG, the manufacturer of the drug Baycol. The plaintiff had purchased and taken Baycol on three occasions prior to the drugs withdrawal from the market for its potential harmful side effects. It is important to note that the plaintiff was not alleging any damages due to the drug’s side effects.

The plaintiff’s case was brought under the Illinois Consumer Fraud and Deceptive Businesses Practices Act along with several other class action plaintiffs. The claim alleged that the plaintiff was harmed by the Bayer’s concealment of Baycol’s negative side effects because the drug manufacturer was able to inflate prices for Baycol as a result of its deceptive omissions regarding the drug’s potential side effects.

The plaintiff began purchasing and taking Baycol as a result of her doctor’s recommendation. The plaintiff further testified at trial that she had no independent knowledge of Baycol before her doctor’s recommendation. Shortly after the drug was prescribed for the plaintiff, Baycol was withdrawn from the market after its use was associated with Rhabdomyolysis, a serious medical condition that affects a person’s muscle control.

Before trial Bayer filed a motion for summary judgment, arguing that in order to maintain an action under the Illinois Consumer Fraud Act a plaintiff is required to show that he was actually deceived. The motion was denied and eventually the case found its way to the Illinois Supreme Court.

The Supreme Court examined the very issue that the defendants brought up in their motion for summary judgement and stated:

The basic principle . . . is that to maintain an action under the Act, the plaintiff must actually be deceived by a statement or omission that is made by the defendant. 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.

The Supreme Court said that the plaintiff failed to allege any statements or communication from Bayer and she acknowledged that she didn’t rely on any statements from Bayer in purchasing Baycol. Therefore she could not bring a claim under the Illinois Consumer Fraud Act.

Kreisman Law Offices has been handling Illinois prescription drug side effect cases for over 30 years, serving those areas in and around Cook County, including Park Ridge, Maywood, Oak Lawn, and Calumet City.