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Price v. Philip Morris12/15/2005
e, PMUSA urges this court to reverse the circuit court's ruling on the issue. PMUSA's concern is that if it does not raise the issue in this appeal, it may be estopped from doing so in subsequent litigation in which an adverse party seeks to admit these documents into evidence.
Despite plaintiffs' well-supported arguments in favor of upholding the circuit court's determination, we decline to address the issue except to note that PMUSA did make the privilege argument before this court and, thus, cannot be deemed to have acquiesced in the admission of the single document into evidence in this case.
Several of the other issues raised in this appeal are of great importance and deserving of consideration by this court in the proper case. In particular, the circuit court's certification of a plaintiff class of 1.14 million individuals with claims covering decades raises several significant issues. The circuit court found sufficient commonality of issues to certify the class. Citing Oliveira, 201 Ill. 2d at 155, in which this court held that the proximate cause element of a Consumer Fraud Act claim must be met by proof of a plaintiff's having been deceived in some manner, PMUSA argues that the element of causation is an individualized issue that makes class certification improper.
We note that the five common questions of fact justifying class certification that were enumerated by the circuit court in its judgment order do not correspond to the five elements of a private cause of action under the Consumer Fraud Act that this court has repeatedly spelled out. See Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 373 (1998); Oliveira, 201 Ill. 2d at 149. Specifically, although the circuit court considered what the class members understood the terms "lights" and "lowered tar and nicotine" to mean, and whether PMUSA intended reliance on its allegedly false and misleading statements, and whether the class members sustained damages as a result, it did not make the specific inquiry required by Oliveira-whether the members of the plaintiff class were deceived by the use of the terms. That is, did they hold a false impression intentionally created by PMUSA's use of these terms when they made each and every purchase decision over a period of as long as 30 years?
Similarly, in the portion of the judgment order listing five elements of a claim under the Consumer Fraud Act, the circuit court cites Oliveira as the source for the elements, but does not mention actual deception as a necessary finding under the element of proximate cause. However, in making its factual findings as to each element, the circuit court did find that the false message of lighter smoke and lower tar was "relied upon as a causative or determining factor for all Class members even if the degree or extent may have varied between Class members."
In the present case, the causation issue has at least two aspects. First, to meet the causation element of a Consumer Fraud Act claim (Oliveira, 201 Ill. 2d at 154), the members of the class must have actually been deceived in some manner by the defendant's alleged misrepresentations of fact. In Oliveira, this court equated cause-in- fact with deception. Oliveira, 201 Ill. 2d at 150. In the context of a fraud claim, as in a negligence claim, cause-in-fact is "but for" cause. That is, the relevant inquiry is whether the harm would have occurred absent the defendant's conduct. Evans v. Shannon, 201 Ill. 2d 424, 434 (2002). The circuit court's use of the words "may have relied to different degrees" causes us to question the existence of cause-in-fact. Even if, as the circuit court found, every purchaser must have relied to some degree on the disputed language
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