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THIRD DIVISION
Date Filed: September 28, 2004

JUSTICE HALL delivered the opinion of the court:

The plaintiffs, the County of Cook, the People of the Stateof Illinois ex rel. Richard A. Devine, and the People of theCounty of Cook ex rel. Richard A. Devine (the plaintiffs),brought suit against the defendants, Philip Morris, Inc., Liggett& Meyers, Inc., certain other named tobacco manufacturers andcertain named advertising agencies (the defendants), seekingdamages from the defendants for the cost of health care fortobacco consumers in Cook County. The State of Illinois wasgranted leave to intervene in the suit. The circuit court dismissed certain counts of the second amended complaint butdenied dismissal as to the counts brought pursuant to theIllinois Consumer Fraud and Deceptive Business Practices Act (theFraud Act) (815 ILCS 505/1 et seq. (West 1996)). However, thecircuit court dismissed the second amended complaint in itsentirety based upon the remoteness doctrine.

The plaintiffs appeal the dismissal of the second amendedcomplaint and the dismissal of certain specified counts. Thedefendants cross-appeal from the denial of their motion todismiss the consumer fraud counts.

By way of background, on April 18, 1997, Cook County filedsuit against the defendants. On May 26, 1999, Cook County filedits second amended complaint, adding as plaintiffs the People ofthe State of Illinois and the People of Cook County. The circuitcourt denied the defendants' motion to dismiss the countsalleging violations of the Fraud Act but granted the motion as tothose counts alleging intentional and/or negligent breach of aspecial or general duty and a public nuisance.

During the pendency of the above suit, the State of Illinoisentered into the Master Settlement Agreement (MSA) with thetobacco industry. See People v. Philip Morris, Inc., 198 Ill. 2d87, 759 N.E.2d 906 (2001). Under the MSA, the State wouldreceive approximately $9 billion over a period of 25 years, withthe potential for additional payments. Philip Morris, Inc., 198Ill. 2d at 92. Cook County was not a participant in thesettlement discussions leading up to the MSA. Thereafter, aconsent decree and final judgment was entered by the circuitcourt of Cook County in the State's own case against thedefendants. People of the State of Illinois v. Philip Morris,Inc., No. 96 L 13146.

Based upon the MSA, the defendants filed motions for summaryjudgment, arguing that the MSA barred the plaintiffs' suit andthat the consent decree constituted res judicata as to the issuesraised in the plaintiffs' second amended complaint. The Statewas granted leave to intervene in the suit. The circuit courtdenied the motions for summary judgment but granted thedefendants' motion to dismiss the People of the State of Illinoisand the People of Cook County as parties to the suit.

The defendants filed a motion for judgment on the pleadings, inter alia, on the remoteness doctrine. The defendants alsofiled another motion to dismiss the Fraud Act counts.

The circuit court denied the defendants' motion to dismissthe Fraud Act counts but granted them judgment on the pleadings,based upon the remoteness doctrine, and dismissed the secondamended complaint in its entirety.

This appeal and cross-appeal followed.

Initially, we address the issue of this court's jurisdictionto consider this appeal. Even though neither party raises theissue, a reviewing court has a duty to consider sua sponte itsjurisdiction. Cashmore v. Builders Square, Inc., 207 Ill. App.3d 267, 269, 565 N.E.2d 703 (1990).

At oral argument, we ordered the parties to address theissue of this court's jurisdiction in light of our recentdecision in Dewan v. Ford Motor Co., 343 Ill. App. 3d 1062, 799N.E.2d 391 (2003). In response to this court's order, theparties submitted a joint memorandum addressing the issue ofjurisdiction. The parties maintained that no fee petition wasfiled in this case and that the claim for attorney fees wasrelated to another case involving some of the same parties.

The parties' memorandum does not specifically address ourdecision in Dewan. Nonetheless, we agree that since no petitionfor an award of fees was filed in this case, either before orafter the circuit court's dismissal of the plaintiffs' complaint,the circuit court's judgment did not resolve fewer than all theclaims, thus distinguishing the present case from Dewan. We nowturn to the merits of the appeal and cross-appeal in this case.

The plaintiffs contend that the circuit court erred indismissing their second amended complaint in its entirety basedon the remoteness doctrine.

This court reviews the granting of judgment on the pleadingsde novo. People ex rel. Ryan v. Village of Hanover Park, 311Ill. App. 3d 515, 724 N.E.2d 132 (1999).

"'Judgment on the pleadings is proper only if questions oflaw, and not of fact, exist after the pleadings have been filed.'[Citation.]" Chicago Title & Trust Co. v. Steinitz, 288 Ill.App. 3d 926, 934, 681 N.E.2d 669 (1997). If no issue of materialfact is presented by the pleadings, "'the question is which partyis entitled to judgment.' [Citation.]" Steinitz, 288 Ill. App.3d at 934.

The factual allegations of the plaintiffs' second amendedcomplaint may be summarized as follows. The defendants conspiredto suppress information about the adverse and addictive qualitiesof nicotine, to create doubt about the publicly available adversescientific studies, to conceal the defendants' manipulation ofthe level of nicotine in tobacco products, and to avoidcompetition, which may have made safer cigarettes available. Adirect result of the defendants' actions was to forestallgovernmental regulation by Cook County and to contribute to CookCounty's overall increased healthcare costs. The defendants'wrongful activities were designed to influence Cook County'sconduct, and had the defendants' acts not been concealed, CookCounty would have taken action to restrain those activities,which would have improved the health and lives of the residentsof Cook County and directly reduced Cook County's costs.

Proof of a causal relationship between a defendant's actionand a plaintiff's injury is essential in every tort "[b]ecausethe consequences of an act go endlessly forward in time and itscauses stretch back to the dawn of human history." LaborersLocal 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d229, 235 (2d Cir. 1999). Thus, the concept of proximate causewas developed to limit the liability of a wrongdoer to only thoseharms with a reasonable connection to the wrongdoer's actions. Laborers Local 17 Health & Benefit Fund, 191 F.3d at 235.

One way in which the concept of proximate cause operates isthrough the remoteness doctrine, which is sometimes called the"direct-injury" test. Holmes v. Securities Investor ProtectionCorp., 503 U.S. 258, 268-69, 117 L. Ed. 2d 532, 544, 112 S. Ct.1311, 1318 (1992). This doctrine states that there must be "somedirect relation between the injury asserted and the injuriousconduct alleged." Holmes, 503 U.S. at 268, 117 L. Ed. 2d at 544,112 S. Ct. at 1318.

We begin by noting that eight circuit courts of appeal haverejected claims similar to those raised in the present case,concluding that the alleged injuries are too remote and,therefore, are not redressable for lack of probable cause. SeeService Employees International Union Health & Welfare Fund v.Philip Morris, Inc., 249 F.3d 1068, 1071 (D.C. Cir. 2001). Seealso Lyons v. Philip Morris, Inc., 225 F.3d 909 (8th Cir. 2000);United Food & Commercial Workers Unions, Employers Health &Welfare Fund v. Philip Morris, Inc., 223 F.3d 1271 (11th Cir.2000); Texas Carpenters Health Benefit Fund v. Philip Morris,Inc., 199 F.3d 788 (5th Cir. 2000); International Brotherhood ofTeamsters, Local 734 Health & Welfare Trust Fund v. PhilipMorris, Inc., 196 F.3d 818 (7th Cir. 1999); Laborers Local 17Health and Benefit Fund., 191 F.3d 229; Oregon Laborers-EmployersHealth & Welfare Trust Fund v. Philip Morris, Inc., 185 F.3d 957(9th Cir. 1999); Steamfitters Local Union No. 420 Welfare Fund v.Philip Morris, Inc., 171 F.3d 912 (3rd Cir. 1999).

The plaintiffs contend that they have standing under boththe Fraud Act (815 ILCS 505/7, 11a (West 1996)) and the IllinoisAntitrust Act (Antitrust Act) (740 ILCS 10/7(2) (West 1996)).Therefore, the remoteness analysis does not apply to them.

In Shannon v. Boise Cascade, 328 Ill. App. 3d 621, 766N.E.2d 1136 (2002), relied on by the plaintiffs, the plaintiffswere purchasers of homes with defective siding. The reviewingcourt rejected the trial court's determination that, as a matterof law, the causation was too remote and, therefore, there was noproximate cause. The court determined that the plaintiffs didnot need to have heard about the defendant's advertising or haverelied on the defendant's further representations to state aclaim for consumer fraud. The court further held that proximatecause was not destroyed because the defendant was separated fromsome of the plaintiffs by the builder-seller or interveningpurchasers. Shannon, 328 Ill. App. 3d at 628.

Recently, our supreme court reversed the appellate courtdecision in Shannon. See Shannon v. Boise Cascade Corp., 208Ill. 2d 517, 805 N.E.2d 213 (2004). The court noted its priorholding that deceptive advertising cannot be the proximate causeof damages under the Fraud Act unless it actually deceives theplaintiff. See Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 776N.E.2d 151 (2002). Therefore, since the plaintiffs failed toallege that any defective advertising was received by anyplaintiff or by a builder, architect, engineer or like personconnected with a plaintiff, the advertising did not deceive theplaintiffs and could not have proximately caused the claimeddamages. Shannon, 208 Ill. 2d at 524-25.⁽¹⁾

The plaintiffs also rely on State ex rel. Humphrey v. PhilipMorris, Inc., 551 N.W.2d 490 (Minn. 1996). In that case, theMinnesota Supreme Court held that private payors could maintainactions under the State's consumer fraud and antitrust statutes. The court agreed that the statutes permitted causes of action forany party injured directly or indirectly by a violation of thestatute. State ex rel. Humphrey, 551 N.W.2d at 495-97.

The plaintiffs maintain that antitrust statutes do notconfine their protection to consumers or to purchasers butprotect all who are made victims of practices forbidden by thestatutes. Blue Shield of Virginia v. McCready, 457 U.S. 465, 73L. Ed. 2d 149, 102 S. Ct. 2540 (1982); see Group Health Plan,Inc. v. Philip Morris, Inc., 621 N.W.2d 2, 5 (Minn. 2001) ("anyperson" is not limited to purchasers for purposes of stating acause of action under Minnesota's misrepresentation in salesstatute, citing McCready).

In International Brotherhood of Teamsters, Local 734 Health& Welfare Trust Fund v. Philip Morris Inc. (Teamsters), theSeventh Circuit Court of Appeals rejected attempts by theplaintiffs, insurers and benefit funds, to bring direct actionsagainst the tobacco manufacturers. Noting its agreement withother appellate decisions rejecting similar claims, the courtbegan its analysis as follows:

"For more than 100 years state and federal courts haveadhered to the principle (under both state and federal law)that the victim of a tort is the proper plaintiff, and thatinsurers or other third-party providers of assistance andmedical care to the victim may recover only to the extenttheir contracts subrogate them to the victim's rights.[Citations.]" Teamsters, 196 F.3d at 822.

The court found that the risk of multiple recovery, since smokerscould file their own antitrust actions, together with thedifficulty in determining damages and the lack of an antitrustinjury, prevented the plaintiffs from recovering. Teamsters, 196F.3d at 823-25.⁽²⁾

Turning to the state law claims, the court noted that thebenefit funds relied on Illinois law.⁽³⁾ Apart from finding noreason for applying Minnesota law to the case before it, thecourt observed that Minnesota was "an outlier with respect tosuits by remotely affected persons." Teamsters, 196 F.3d at827. The court then noted that 47 states, including Illinois,enforce the normal rule that a third-party payor may recover as asubrogee or not at all. Teamsters, 196 F.3d at 827-28.

Although in Illinois Brick Co. v. Illinois, 431 U.S. 720, 52L. Ed. 2d 707, 97 S. Ct. 2061 (1977), the Supreme Court held thatonly the immediate purchaser of goods may sue under antitrustlaws, Illinois now provides by statute that indirect purchasersmay recover as well. See 740 ILCS 10/7(2) (1996). However,there is a distinction between the "direct-purchasers" doctrineand "direct-injury" doctrine. Teamsters, 196 F.3d at 828.

In Associated General Contractors of California, Inc. v.California State Council of Carpenters, 459 U.S. 519, 74 L. Ed.2d 723, 103 S. Ct. 897 (1983), the Supreme Court upheld thedismissal of the union's antitrust complaint, even though thecomplaint alleged a causal connection between an antitrustviolation and harm to the union and that the defendants intendedto cause that harm. In its analysis of proximate cause, theCourt stated as follows:

"An additional factor is the directness or indirectnessof the asserted injury. In this case, the chain ofcausation between the Union's injury and the allegedrestraint in the market for construction subcontractscontains several somewhat vaguely defined links. Accordingto the complaint, defendants applied coercion againstcertain landowners and other contracting parties in order tocause them to divert business from certain union contractorsto nonunion contractors. As a result, the Union's complaintalleges, the Union suffered unspecified injuries in its'business activities.' It is obvious that any such injurieswere only an indirect result of whatever harm may have beensuffered by 'certain' construction contractors andsubcontractors." Associated General Contractors, 459 U.S.at 540-41, 74 L. Ed. 2d at 739-40, 103 S. Ct. at 909-10.

The plaintiffs point out that this court has rejected theremoteness argument in City of Chicago v. Beretta U.S.A. Corp.,337 Ill. App. 3d 1, 785 N.E.2d 16 (2002), appeal granted, 203Ill. 2d 544, 788 N.E.2d 727 (2003). In that case, the City ofChicago sued gun manufacturers, alleging that their practicesunreasonably facilitated the unlawful possession of handguns inChicago and created a public nuisance. In rejecting thedefendants' remoteness argument, the court held that "[a]reasonable trier of fact could find that the criminal misuse ofguns to kill persons were occurrences that defendants knew wouldresult or were substantially certain to result" from thedefendants' alleged conduct. Beretta U.S.A. Corp., 337 Ill. App.3d at 18. However, the remoteness doctrine can apply even if theinjury was foreseeable. See Kraft Chemical Co. v. Illinois BellTelephone Co., 240 Ill. App. 3d 192, 196-97, 608 N.E.2d 243(1992).

The plaintiffs also rely on Young v. Bryco Arms, 327 Ill.App. 3d 948, 765 N.E.2d 1 (2001), appeal granted, 201 Ill. 2d619, 786 N.E.2d 202 (2002). In that case, this court found thatthe plaintiffs, relatives of victims of shootings, had statedcauses of action for public nuisance. However, the plaintiffssued on behalf of the shooting victims and, therefore, unlike thepresent case, did not present an issue of derivative injury.

Next, the plaintiffs argue that their governmental rolessupport a causal relationship between their alleged damages andthe conduct of the defendants. They argue that the specialrelationship exception to the remoteness doctrine applies,especially in light of Cook County's home rule status. See Cityof Boston v. Smith & Wesson Corp., No. 199902590 (Mass. Sup. Ct.July 13, 2000) (in Massachusetts an exception to the remotenessdoctrine may exist if a special relationship exists between agovernment body and an injured third person).

However, other cases have recognized that, even if a statehas special rights of action, a political subdivision thereof isstill subject to the proximate cause requirement. SeeAssociation of Washington Public Hospital Districts v. PhilipMorris, Inc., 241 F.3d 696, 703 n.3 (9th Cir. 2001). While underits home rule powers, Cook County has enacted legislation in thearea of smoking regulations, the instant case was broughtpursuant to State law.

Finally, the plaintiffs argue that proximate cause is aquestion of fact for the jury and, therefore, the circuit courterred in granting judgment on the pleadings. See Lee v. ChicagoTransit Authority, 152 Ill. 2d 432, 605 N.E.2d 493 (1992).

The plaintiffs maintain their allegations that the defendantsconspired to prevent Cook County from taking regulatory action ontobacco products resulted in an injury that was "natural andprobable," and that Cook County was a "highly foreseeableplaintiff."

The plaintiffs' continued reliance on Shannon is misplaced. Even if it could be said that the plaintiffs were deceived by thedefendants' campaign to suppress the dangers of smoking, theystill were not purchasers of tobacco products. Moreover, thesupreme court's analysis did not include the remoteness doctrine.The plaintiffs' reliance on Arangold Corp. v. Zehnder, 329 Ill.App. 3d 781, 768 N.E.2d 391 (2002), aff'd, 204 Ill. 2d 142, 787N.E.2d 786 (2003), is equally misplaced. The court recognizedthat the taxation of tobacco products was rationally related tothe State's interest in preserving the health of its citizens,noting that the legislature's judgment in crafting a statute is"'not subject to courtroom fact finding and may be based onrational speculation unsupported by evidence or empirical data.'[Citations.]" Arangold Corp., 329 Ill. App. 3d at 793. Thiscourt is not similarly free to speculate as to whether theplaintiffs' interest in the health of Cook County residents issufficiently connected to the injuries suffered by residents whohave purchased tobacco products to allow them to pursue thecomplaint in this case.

Moreover, similar arguments have previously been rejected. In Service Employees International, the court stated as follows:

"The remote, derivative nature of the alleged injuries,in turn, makes more difficult the determination of theamount of damages that is attributable to the allegedwrongdoing, as distinct from other independent factors. Asthe circuits have pointed out, considerable speculationwould be involved in identifying the costs that have causedthe alleged financial instability of the funds and similarcosts to the nations' treasuries that the plaintiffs contendhave deterred or prevented them from financing varioushealth care programs. [Citations.] For example, it isdifficult to know how smokers might have behaved with morecomplete information, [citation], a problem compounded bythe fact that the tobacco companies would be stripped ofmany defenses that would be available in a subrogationaction. [Citations.] Reliance on aggregate statisticalproof *** compounds the difficulties and does not alter thespeculative nature of the claimed damages. [Citations.] Moreover, the insurers have likely already passed the costson to the directly injured through higher premiums." Service Employees International, 249 F.3d 1074-75.

The court also pointed out that because smokers, employers,health insurers and other potential plaintiffs might seek recovery for the same alleged conduct on various state andfederal grounds, double recovery could occur. Service EmployeesInternational, 249 F.3d at 1075. See also Associated GeneralContractors, 459 U.S. at 545, 74 L. Ed. 2d at 742-43, 103 S. Ct.at 912.

The plaintiffs point out that the circuit court refused todismiss the State's suit, rejecting the remoteness argument. However, there the circuit court's proximate cause analysis dealtonly with the allegations that the defendants foresaw andintended that the State would spend hundreds of millions ofdollars. However, foreseeability and direct injury (orremoteness) are distinct concepts, both of which must generallybe established by the plaintiff. Service EmployeesInternational, 249 F.3d at 1076. As the court in that case held:

"In any event, specific intent to harm the plaintiffs byshifting smoking-related health care costs to them is aloneinsufficient to overcome the bar on remote claims." ServiceEmployees International, 249 F.3d at 1076.

But see Blue Cross & Blue Shield of New Jersey, Inc. v. PhilipMorris, Inc. 36 F. Supp. 2d 560 (E.D. N.Y. 1999) (intentionalconduct expands proximate cause); City & County of San Franciscov. Philip Morris, Inc., 957 F. Supp. 1130 (N.D. Cal. 1997)(broader definition of cause in intentional torts).

As the plaintiffs point out, other courts have rejected theremoteness doctrine in suits against the tobacco companies,finding that the plaintiffs suffered a direct injury. See City &County of San Francisco v. Philip Morris, Inc., No. C 96-2090(March 3, 1998); see also Blue Cross & Blue Shield of NewJersey, Inc., 36 F. Supp. 2d 560 (rejecting remoteness doctrinewhere plaintiffs alleged injuries stemming from their ownreliance on defendants' misrepresentations). The plaintiffs alsorely on a trial court opinion from the 22nd Judicial Circuit ofMissouri. City of St. Louis v. American Tobacco Co., No. 982-09652 (November 7, 2001). The court there refused to followTeamsters, on the basis that Teamsters involved third-partypayors and the court of appeals did not review Missouri law inits analysis. Instead, the Missouri court found that there was aquestion of fact as to whether the defendants were the proximatecause of the plaintiffs' injuries.

We conclude the remoteness doctrine applies to theplaintiffs' second amended complaint. The remaining question is,have the plaintiffs set forth a direct relationship between theinjury asserted and the injurious conduct in this case sufficient to withstand a motion for judgment on the pleadings?

The plaintiffs claim that they were injured by thedefendants' conspiracy to cover up the effects of smoking inorder to sell more cigarettes to people who smoke, resulting inadditional health costs to the plaintiffs, who provided themedical care necessary to treat the people who smoked. Thedefendants are not accused of selling tobacco products to theplaintiffs, but to the people who consumed tobacco products. Anyinjury to the plaintiffs results only indirectly: if a tobaccoconsumer needs treatment and if he or she seeks treatment fromthe plaintiffs. The fact that the tobacco consumers have filedtheir own suits against defendants, such as the ones in thiscase, illustrates the indirectness of the injury suffered by theplaintiffs in this case. The plaintiffs' position is virtuallyidentical to that of an insurance company seeking to recoup itsmedical payments to its insured from the party at fault. Theinsurance company must proceed via a subrogation action or not atall, as must these plaintiffs. See Teamsters, 196 F.3d at 827-28.

Notwithstanding the contrary authority, based upon theweight of authority and our own analysis, we are convinced that,given the derivative nature of the injuries alleged in theplaintiffs' second amended complaint, it was correctly dismissedon the basis of the remoteness doctrine. We are not convincedthat the plaintiffs have a direct injury.

Deciding this case as we do, we need not address theremaining issues raised by the plaintiff, the intervenor or thedefendants in their cross-appeal.

The judgment of the circuit court is affirmed.

Affirmed.

HOFFMAN, P.J., and SOUTH, J., concur.

1. In dicta, the court suggested that if the plaintiffs hadbeen "indirectly" deceived because the builder or architect hadbeen deceived, proximate cause requirement under the Fraud Actcould be satisfied. See Shannon, 208 Ill. 2d at 525-26; but seeShannon, 208 Ill. 2d at 529-32 (Thomas, J., speciallyconcurring).

2. "To recover under the antitrust laws, the plaintiff mustshow that its injury flows from that which makes the conduct anantitrust problem: higher prices and lower output. But [theplaintiffs] do not say that the output of cigarettes is too lowas a result of a conspiracy; they say that it is too high!" Teamsters, 196 F.3d at 825.

3. In the district court case, the benefit fund plaintiffsraised claims under the Fraud Act and the Antitrust Act. International Brotherhood of Teamsters Local 734 Health & WelfareTrust Fund v. Philip Morris, Inc., 34 F. Supp. 2d 656 (N.D. Ill.1998). The district court dismissed the Fraud Act claims forlack of standing and for failure to state a cause of action. International Brotherhood of Teamsters, 34 F. Supp. 2d at 661-62,664.