• Illinois Supreme Court Rules Patient Must Be Misled In Fact to Maintain Consumer Fraud Action against Pharmaceutical Company
  • January 8, 2010
  • Law Firm: Kaye Scholer LLP - New York Office
  • On December 17, 2009, the Illinois Supreme Court, expanding on a long line of its prior opinions, held that the patient must, in fact, be deceived by a pharmaceutical company’s allegedly false statement or omission in order to maintain an action under the Illinois Consumer Fraud Act (“CFA”). DeBouse v. Bayer AG, 2009 Ill. LEXIS 2306 (Ill. Dec. 17, 2009). At the same time, however, the Illinois Supreme Court clarified that a patient may be indirectly deceived if the deceptive statement by the pharmaceutical company reaches the patient via his or her doctor and the patient relies on the deceptive statement. Finally, the Court held that the mere offering of a prescription drug for sale in Illinois is not a representation that the drug is safe for its intended purposes. This is a significant decision both because of its reaffirmation of the requirement of proximate causation under the CFA -- and as a precedent for interpreting similar consumer fraud acts of other states -- and because of its application of this requirement to the increasingly popular assertion of CFA claims in product liability and “no injury” consumer fraud actions involving prescription medications.