{ "id": 910265, "name": "FRANK J. SCHIFFNER, on Behalf of Himself and All Other Persons Similarly Situated, Plaintiff-Appellant, v. MOTOROLA, INC., Defendant-Appellee", "name_abbreviation": "Schiffner v. Motorola, Inc.", "decision_date": "1998-06-30", "docket_number": "No. 1\u201497\u20142456", "first_page": "1099", "last_page": "1109", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 1099" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "176 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544913 ], "year": 1997, "pin_cites": [ { "page": "94", "parenthetical": "Harrison, J., specially concurring, joined by Heiple, C.J." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0082-01" ] }, { "cite": "292 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725130 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "64, 69" }, { "page": "62-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0059-01" ] }, { "cite": "174 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223623 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "489" }, { "page": "495" }, { "page": "501-05" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0482-01" ] }, { "cite": "29 U.S.C. \u00a7 1144", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1982, "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a7 1261", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1988, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7 360", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 }, { "cite": "518 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1730146 ], "weight": 9, "year": 1996, "pin_cites": [ { "page": "486" }, { "page": "716" }, { "page": "2250-51" } ], "opinion_index": 0, "case_paths": [ "/us/518/0470-01" ] }, { "cite": "435 U.S. 151", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2796 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "178" }, { "page": "201" }, { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/us/435/0151-01" ] }, { "cite": "463 U.S. 85", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191473 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "95" }, { "page": "500" }, { "page": "2900" } ], "opinion_index": 0, "case_paths": [ "/us/463/0085-01" ] }, { "cite": "514 U.S. 280", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1338938 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "287" }, { "page": "392" }, { "page": "1487" }, { "page": "286", "parenthetical": "the applicable federal agency did not have \"all authority over the regulated area\" under a different statute" }, { "page": "392", "parenthetical": "the applicable federal agency did not have \"all authority over the regulated area\" under a different statute" }, { "page": "1487", "parenthetical": "the applicable federal agency did not have \"all authority over the regulated area\" under a different statute" } ], "opinion_index": 0, "case_paths": [ "/us/514/0280-01" ] }, { "cite": "514 U.S. 645", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339053 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "654" }, { "page": "704" }, { "page": "1676" } ], "opinion_index": 0, "case_paths": [ "/us/514/0645-01" ] }, { "cite": "331 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157471 ], "weight": 3, "year": 1947, "pin_cites": [ { "page": "230" }, { "page": "1459" }, { "page": "1152" } ], "opinion_index": 0, "case_paths": [ "/us/331/0218-01" ] }, { "cite": "505 U.S. 504", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1481129 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "516" }, { "page": "422" }, { "page": "2617" } ], "opinion_index": 0, "case_paths": [ "/us/505/0504-01" ] }, { "cite": "169 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909164 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "334", "parenthetical": "and cases cited therein" }, { "page": "335" }, { "page": "335" }, { "page": "335", "parenthetical": "federal preemption can be evidenced \"by express provision, by implication, or by a conflict between federal and state law\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0325-01" ] }, { "cite": "173 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147638 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "379", "parenthetical": "no preemption" }, { "page": "379", "parenthetical": "\"Congress' intent to preempt state law may be explicitly stated in the statute's language or implicitly contained in its structure and purpose\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0375-01" ] }, { "cite": "179 Ill. 2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801354 ], "year": 1997, "pin_cites": [ { "page": "166", "parenthetical": "rejected federal preemption" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0160-01" ] }, { "cite": "179 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801352 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "285", "parenthetical": "applied federal preemption" }, { "page": "285" }, { "page": "285", "parenthetical": "\"[a] congressional act can either expressly or implicitly preempt a state cause of action\"" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0282-01" ] }, { "cite": "288 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596924 ], "year": 1997, "pin_cites": [ { "page": "883" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0880-01" ] }, { "cite": "179 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801348 ], "year": 1997, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0338-01" ] }, { "cite": "101 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081734 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0876-01" ] }, { "cite": "106 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3035641 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0383-01" ] }, { "cite": "95 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111261 ], "year": 1983, "pin_cites": [ { "parenthetical": "resolving contrary decisions between the fourth division of the first district (Muller v. Health & Hospital Governing Comm'n, 106 Ill. App. 3d 383 (1982)) and the first division of the first district (Isaacs v. Michael Reese Hospital & Medical Center, 101 Ill. App. 3d 876 (1981))" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0223-01" ] }, { "cite": "165 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483558 ], "year": 1995, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0482-01" ] }, { "cite": "61 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3346649 ], "year": 1978, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0315-01" ] }, { "cite": "15 U.S.C. \u00a7 2301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "172 Ill. 2d 568", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 460", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260431 ], "weight": 10, "year": 1996, "pin_cites": [ { "page": "468" }, { "page": "469" }, { "page": "467" }, { "page": "469" }, { "page": "470" }, { "page": "470" }, { "page": "467-68" }, { "page": "468-69" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0460-01" ] } ], "analysis": { "cardinality": 1067, "char_count": 25991, "ocr_confidence": 0.799, "pagerank": { "raw": 2.598243482775265e-07, "percentile": 0.8192568369816156 }, "sha256": "4abd41b854f6830616780a729f6ea0da6b6414e3aa8c10af38ae9123f5300edd", "simhash": "1:8bbe550aa74cc4d3", "word_count": 4250 }, "last_updated": "2023-07-14T14:41:46.412422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANK J. SCHIFFNER, on Behalf of Himself and All Other Persons Similarly Situated, Plaintiff-Appellant, v. MOTOROLA, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nPlaintiff Frank J. Schiffner appeals the dismissal of his fourth amended complaint against defendant Motorola, Inc., based on defendant\u2019s marketing and sale of cellular telephones. The circuit court granted defendant\u2019s section 2 \u2014 615 motion to dismiss (735 ILCS 5/2 \u2014 615 (West 1996)), finding that federal law preempted plaintiffs state law causes of action pursuant to the decision in Verb v. Motorola, Inc., 284 Ill. App. 3d 460 (1996), appeal denied, 172 Ill. 2d 568 (1997).\nThe issue on appeal is whether plaintiffs causes of action under state law are preempted by federal law, i.e., the Electronic Product Radiation Control Act (Act) (21 U.S.C.A. \u00a7\u00a7 360hh through 360ss (West Supp. 1998)). The Verb court held that the Act preempted the same causes of action advanced by the instant plaintiff in his fourth amended complaint. We find the Verb case persuasive and dispositive of this issue. Thus, we affirm the dismissal of plaintiffs complaint.\nIn addition, however, plaintiff contends that his complaint, unlike the Verb complaint, sufficiently stated a compensable injury by alleging the diminished value of a product due to defects associated with the product. We agree with plaintiff that such an allegation states a compensable injury.\nThe procedural background of this case tracks the path of the Verb complaint through the appellate decision in Verb, which was first filed in March 1996 and then, upon the denial of a petition for rehearing, was issued as a modified opinion in November 1996.\nIn August 1993, the circuit court dismissed the Verb complaint, holding that its subject matter was preempted by federal law and ruling that the Verb plaintiffs had not alleged a compensable injury. The circuit court\u2019s ruling was appealed.\nIn June 1995, the present plaintiff filed a second amended complaint. Defendant filed a motion to dismiss based on the circuit court\u2019s previous dismissal of the Verb complaint, which was then pending on appeal.\nIn March 1996, the appellate court filed its opinion in Verb and affirmed the dismissal of the Verb complaint. The Verb plaintiffs filed a petition for rehearing with the appellate court.\nIn response to the March 1996 Verb decision, the present plaintiff sought and received leave to file another amended complaint in June 1996. In September 1996, defendant filed another section 2 \u2014 615 motion to dismiss plaintiffs third amended complaint or, in the alternative, a stay pending the appellate court\u2019s ruling on the rehearing petition in Verb. The circuit court granted a stay. In November 1996, the appellate court denied the Verb rehearing petition and filed a modified opinion.\nIn response to the Verb modified opinion, the circuit court lifted the stay in the present case in February 1997. On February 5, 1997, the circuit court, finding that the Verb opinion was dispositive on the preemption issue and binding on it, dismissed plaintiffs third amended complaint and allowed plaintiff to amend again.\nWith this background and direct link to Verb, plaintiff then filed his fourth amended complaint, which is at issue in the present appeal. Plaintiffs fourth amended complaint arises out of the marketing and sale of cellular portable telephones by defendant. Plaintiff alleged three causes of action: (1) breach of implied warranty of merchantability under the Uniform Commercial Code (810 ILCS 5/2 \u2014 103 et seq. (West 1992)); (2) consumer fraud; and (3) violation of the Magnuson-Moss Warranty Act (15 U.S.C. \u00a7 2301 et seq. (1994)). In addition, plaintiff sought certain injunctive relief to stop defendant from continuing its alleged illegal acts and conduct on an ongoing basis as alleged in the complaint.\nThe gravamen of plaintiffs complaint is that defendant manufactured and sold cellular portable telephones that were defective because of the uncertain safety of the product and defendant\u2019s failure to disclose potential health risks and potential hazards associated with the use of the product. Cellular portable phones operate with a transmission antenna that emits the phone\u2019s electromagnetic radio waves into the phone unit. Plaintiff further alleges that defendant did not complete studies to definitively and accurately ascertain the safety of the use of the phones and defendant failed to advise plaintiff that the phones had not been proven safe. Plaintiff also alleged that defendant failed to adequately package or label the phones; failed to provide adequate information about the health risks; failed to provide adequate guards to shield the user from electromagnetic field (EMF) radiation; failed to provide adequate instructions on how to use the phone; and failed to adequately design the phone.\nDefendant again filed a section 2 \u2014 615 motion to dismiss plaintiffs complaint. The circuit court dismissed plaintiffs fourth amended complaint and, relying on the Verb decision, stated that the grounds for dismissal were preemption and \u201ca lack of cognizable injury.\u201d\nAs a threshold matter, defendant asserts that the principles of stare decisis require this panel, the sixth division of the first district, to follow the precedent established by the second division of the first district in Verb. Defendant\u2019s assertion fails for two reasons. First, the doctrine of stare decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal or inferior courts. Village of Northbrook v. Cannon, 61 Ill. App. 3d 315, 322 (1978). Second, \u201c[sjtare decisis is a policy of the courts to stand by precedent and leave settled points of law undisturbed.\u201d Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). The point of law at issue in the instant case is hardly settled law because, to date, the Verb opinion is the sole decision in the country on federal preemption under the Act. Moreover, a split in authority between the divisions of the first district is not unprecedented and has led to an ultimate resolution by the supreme court. See, e.g., Moore v. Jackson Park Hospital, 95 Ill. 2d 223 (1983) (resolving contrary decisions between the fourth division of the first district (Muller v. Health & Hospital Governing Comm\u2019n, 106 Ill. App. 3d 383 (1982)) and the first division of the first district (Isaacs v. Michael Reese Hospital & Medical Center, 101 Ill. App. 3d 876 (1981))). Thus, we decline defendant\u2019s invitation to apply stare decisis to the instant appeal.\nWe review de novo the dismissal of a complaint under section 2 \u2014 615 for failure to state a cause of action upon which relief can be granted. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997); Douglas Theater Corp. v. Chicago Title & Trust Co., 288 Ill. App. 3d 880, 883 (1997).\nOn appeal, plaintiff essentially asserts that the Verb case was wrongly decided and that the Verb opinion failed to address plaintiff s arguments. We disagree.\nThe principles of federal preemption are well established. The doctrine of preemption is based on the supremacy clause of the United States Constitution, which mandates that \u201c \u2018the Laws of the United States *** shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. \u2019 \u201d Orman v. Charles Schwab & Co., 179 Ill. 2d 282, 285 (1997) (applied federal preemption), quoting U.S. Const., art. VI, cl. 2; Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 166 (1997) (rejected federal preemption).\nCongressional intent determines whether a federal statute preempts state law. Scholtens v. Schneider, 173 Ill. 2d 375, 379 (1996) (no preemption); Busch v. Graphic Color Corp., 169 Ill. 2d 325, 334 (1996) (and cases cited therein) (preemption applies). \u201cAn act of Congress or regulatory law promulgated thereunder may supersede the statutory, regulatory or common law of any state where such \u2018[is] the clear and manifest purpose of Congress.\u2019 \u201d Orman, 179 Ill. 2d at 285, quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 120 L. Ed. 2d 407, 422, 112 S. Ct. 2608, 2617 (1992), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146, 1152 (1947).\nThe intent of Congress to preempt state law may be manifested \u201c \u2018by express provision, by implication, or by a conflict between federal and state law.\u2019 \u201d Busch, 169 Ill. 2d at 335, quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 654, 131 L. Ed. 2d 695, 704, 115 S. Ct. 1671, 1676 (1995); see also Orman, 179 Ill. 2d at 285 (\u201c[a] congressional act can either expressly or implicitly preempt a state cause of action\u201d), citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 131 L. Ed. 2d 385, 392, 115 S. Ct. 1483, 1487 (1995); see also Scholtens, 173 Ill. 2d at 379 (\u201cCongress\u2019 intent to preempt state law may be explicitly stated in the statute\u2019s language or implicitly contained in its structure and purpose\u201d), citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 77 L. Ed. 2d 490, 500, 103 S. Ct. 2890, 2900 (1983).\nNotably, decisions of federal courts interpreting a federal act are controlling upon Illinois courts so that a federal act would be given uniform application. Busch, 169 Ill. 2d at 335. However, since no federal court has yet construed the preemptive scope of the Act, we can seek no guidance there. In addition, research has revealed that no other state has addressed the issue presented here. Thus, the only court to decide the preemptive effect of the Act is the Verb court.\nThe Verb court specifically found \u201cthat the FDA [Food and Drug Administration] does preempt a state\u2019s power over the issues in the case at bar because the FDA directly regulates electronic products that emit radiation with regard to public health.\u201d Verb, 284 Ill. App. 3d at 468. The Verb court quoted the Act as the empowering statute.\nFactually, the Verb case and the instant case are indistinguishable: (1) the allegations in the complaints are virtually alike for purposes of the preemption issue, albeit not identical for purposes of the damage issue; and (2) the causes of action asserted in the complaints are the same. Regarding the allegations, the Verb court characterized the Verb complaint as follows:\n\u201cIn the present case, plaintiffs\u2019 complaint *** centered on the lack of warnings as to the safety of and possible health risks caused by cellular telephones purchased by them which, the parties agree, emit radiation. More specifically, as stated in plaintiffs\u2019 opening brief on appeal, \u2018This case arises out [of] the Defendants\u2019 failure to warn the consuming public, including putative Plaintiffs, of the risks associated with the use of cellular portable telephones and the Defendants\u2019 false pronouncements of the phones\u2019 \u201cproven\u201d safety, the safety of which has clearly not been proven.\u2019 (Emphasis in original.)\u201d Verb, 284 Ill. App. 3d at 469.\nThe instant complaint can aptly be described in the exact same way. In addition, the causes of action are the same and plaintiff apparently does not contest that fact. The causes of action in each case include breach of implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act and consumer fraud.\nAs to the legal issue, plaintiffs arguments on appeal as to the merits of preemption were addressed by the Verb court. First, plaintiff observes that the Act does not expressly preempt state law claims. Indeed, the Verb court did not find that an express preemption existed in the Act. Rather, the Verb court correctly observed that \u201cCongress can assert exclusive power either by explicit statutory language or by regulating a matter in such detail as to leave no room for state involvement.\u201d Verb, 284 Ill. App. 3d at 467; see also Busch, 169 Ill. 2d at 335 (federal preemption can be evidenced \u201cby express provision, by implication, or by a conflict between federal and state law\u201d (emphasis added)).\nSecond, plaintiff argues that preemption does not apply because there have been no standards prescribed for the performance of cellular portable telephones and, therefore, there can be no conflict between federal and state law. The Verb court expressly found:\n\u201c[I]t is irrelevant whether the FDA has not set any standards, as plaintiffs allege, because the power to do so nonetheless resides with the FDA. Any determination by the trial court as to whether the cellular telephones are unsafe and what warnings and labels must be made would require the court to establish standards of safety and warnings, which would usurp the FDA\u2019s exclusive power to do so with respect to electronic products that emit radiation.\u201d Verb, 284 Ill. App. 3d at 469.\nThe absence of an affirmative regulation by an agency that is authorized to make such regulations does not discharge its power to do so and does not extinguish Congress\u2019 intent to relegate the authority to a federal agency to enact, where appropriate and approved, uniform national standards. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 55 L. Ed. 2d 179, 201, 98 S. Ct. 988, 1004 (1978); cf. Freightliner Corp. v. Myrick, 514 U.S. 280, 286, 131 L. Ed. 2d 385, 392, 115 S. Ct. 1483, 1487 (1995) (the applicable federal agency did not have \u201call authority over the regulated area\u201d under a different statute). Moreover, as previously stated, the United States Supreme Court has recognized three ways in which preemption of state law may arise: \u201cby express provision, by implication, or by a conflict between federal and state law.\u201d (Emphasis added.) New York State Conference of Blue Cross & Blue Shield Plans, 514 U.S. at 654, 131 L. Ed. 2d at 704, 115 S. Ct. at 1676. Therefore, the lack of an actual conflict between federal and state law does not necessarily determine whether preemption applies.\nThird, plaintiff argues that the Act does not preempt his state law claims, relying on Medtronic, Inc. v. Lohr, 518 U.S. 470, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (1996). The Verb court discussed and distinguished the Lohr case. Verb, 284 Ill. App. 3d at 470. The Lohr court held that the plaintiffs\u2019 state claims, which were based on the defendant\u2019s manufacture of a pacemaker that failed and caused injuries to the recipient of the pacemaker, were not preempted by the federal Medical Device Amendments of 1976 (MDA) (21 U.S.C. \u00a7 360 (1994)). The Verb court held that \u201cLohr is distinguishable from the present case not only because it involved a statute different from the one here, but more important because plaintiffs here did not allege a present personal injury.\u201d Verb, 284 Ill. App. 3d at 470.\nFourth, plaintiff criticizes the Verb court for only discussing Lohr and not addressing \u201cmost of Plaintiff\u2019s authority dealing with construction of similar statutes.\u201d The Verb court correctly noted that \u201c[t]he key inquiry in all preemption cases is the objective or purpose of Congress in enacting the particular statute. The doctrine requires courts to examine the Federal statute in question to determine whether Congress intended it to supplant State laws on the same subject.\u201d (Emphasis added.) Verb, 284 Ill. App. 3d at 467-68. The Supreme Court in Lohr emphasized that, to analyze preemption, courts must consider the language of the statute, the statutory framework surrounding it, the structure and purpose of the statute as a whole, and \u201cthe way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.\u201d Lohr, 518 U.S. at 486, 135 L. Ed. 2d at 716, 116 S. Ct. at 2250-51. Obviously different statutes, different preemption provisions and different regulations will be interpreted differently. E.g., Orman, 179 Ill. 2d 282 (class actions alleging state law claims were preempted by the federal Securities Exchange Act of 1934 (15 U.S.C. \u00a7 78a et seq. (1994))); Busch, 169 Ill. 2d 325 (common law claims were preempted by the Federal Hazardous Substances Act (15 U.S.C. \u00a7 1261 et seq. (1988))); cf. Scholtens, 173 Ill. 2d 375 (the federal Employee Retirement Income Security Act (29 U.S.C. \u00a7 1144 (1982)) did not preempt state theory of recovery). Furthermore, even the same statute can require differing results as to preemption given different underlying facts. E.g., Lohr, 518 U.S. 470, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (the MDA did not preempt state claims); cf. R.F. v. Abbott Laboratories, No. A \u2014 2050\u201496T2 (May 7, 1998) (the MDA did preempt the plaintiffs\u2019 state claims due to FDA involvement). As noted above, the Verb court discussed the Lohr decision, the case on which plaintiff primarily relies, and distinguished it on the grounds that it involved a different statute. This court is not aware of any requirement that its decisions must include or discuss each and every case cited as authority by a party on appeal.\nFifth, plaintiff contends that state claims are allowed by a general savings clause in the Act, which declares that \u201c[t]he remedies provided for in this part shall be in addition to and not in substitution for any other remedies provided by law.\u201d 21 U.S.C.A. \u00a7 360pp(f) (West Supp. 1998). Although it did not mention the savings clause, the Verb court relied on two other provisions in the Act. The Verb court quoted the provision mandating the FDA secretary to promulgate regulations\n\u201cfor electronic products to control the emission of electronic product radiation from such products if he determines that such standards are necessary for the protection of the public health and safety. Such standards may include provisions for the testing of such products and the measurement of their electronic product radiation emissions, may require the attachment of warning signs and labels, and may require the provision of instructions for the installation, operation, and use of such products.\u201d 21 U.S.C.A. \u00a7 360kk(a)(1) (West Supp. 1998).\nThe Act further includes a preemption clause:\n\u201cWhenever any standard prescribed pursuant to section 360kk of this title with respect to an aspect of performance of an electronic product is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, any standard which is applicable to the same aspect of performance of such product and which is not identical to the Federal Standard. Nothing in this part shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a requirement with respect to emission of radiation from electronic products procured for its own use if such requirement imposes a more restrictive standard than that required to comply with the otherwise applicable Federal standard.\u201d 21 U.S.C.A. \u00a7 360ss (West Supp. 1998).\nBased on these provisions, the Verb court held that the plaintiffs\u2019 claims were preempted by the FDA. Verb, 284 Ill. App. 3d at 468-69. Although the Verb court did not discuss the general savings clause, the Illinois Supreme Court in Orman found that a general savings clause is not conclusive as to preemption. Orman, 179 Ill. 2d at 292. The Illinois Supreme Court relied on the United States Supreme Court\u2019s opinion in Freightliner in explaining that \u201ca statutory preemption clause which preempts state laws that conflict with the federal law, but which also preserves nonconflicting state laws, does not foreclose the possibility of implied preemption.\u201d Orman, 179 Ill. 2d at 293, citing Freightliner, 514 U.S. at 288-89, 131 L. Ed. 2d at 393, 115 S. Ct. at 1488. Accordingly, the general savings clause in the Act does not necessarily preserve state claims.\nWe find that the Verb decision was correctly decided and addressed the legal arguments now presented by plaintiff on the preemption issue. Accordingly, we affirm the dismissal of plaintiffs fourth amended complaint because the state claims are preempted by federal law.\nNotwithstanding our agreement with the Verb opinion on the preemption issue, we would not find the Verb opinion to be decisive on the damage issue because, unlike the Verb complaint, the instant complaint sufficiently alleged the diminished value of the product due to defects associated with the product, which is a compensable injury in consumer fraud and breach of warranty causes of action. Claims for diminished value of an allegedly defective product without the pleading of any damage to the product or person were allowed in Connick v. Suzuki Motor Co., 174 Ill. 2d 482 (1996), and Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59 (1997). Moreover, even the Verio court would have accepted such damage allegations. Most notably for the purposes of the present appeal the Verb court held that the Verb plaintiffs failed to \u201callege that the telephones are defective\u201d and \u201cfailed to plead specific facts *** that the telephones have diminished in value.\u201d Verb, 284 Ill. App. 3d at 472.\nParagraph 39 of the instant fourth amended complaint alleges:\n\u201cDefendantsE\u2019] cellular portable phones were defective in that they were sold:\na. Without adequate information about the health risks and the lack of information on the effects of EMF on human cells;\nb. Without adequate guards to shield the user from the EMF radiation;\nc. Without adequate instructions on how to use the phone including how to hold the phone so as to reduce exposure from EMF radiation;\nd. Without adequate design so as to increase the distance between the user\u2019s head and the antenna of the phone.\u201d\nRegarding damages in its count for breach of implied warranty of merchantability, paragraph 43 of plaintiffs complaint states:\n\u201cPlaintiff and members of the Class have been damaged by a reduction in the value of the cellular portable telephones, limiting the duration of their calls and usage of the cellular portable telephone, by modifying the cellular portable telephones or the use thereof to limit or mitigate their exposure to the harmful or potentially harmful radio waves, by being subjected to increased risk of exposure to potentially harmful radio waves, by failure to receive that which was bargained for.\u201d\nRegarding damages in his count for statutory consumer fraud, paragraph 56 of the complaint states that \u201cPlaintiff and Class Plaintiffs have been damaged as well by the loss of value of the phones they have purchased.\u201d\nIn Connick, the plaintiffs filed a class action lawsuit against car companies that manufactured the Suzuki Samurai after a consumer organization designated the Samurai as unsafe based on its excessive risk of rolling over. In their complaint, plaintiffs alleged that the risk of rollover was due to a defect in either design or production, and stated claims for implied warranty and consumer fraud. \u201cSignificantly, plaintiffs did not allege that they had ever suffered a rollover accident in a Samurai. Rather, they sought compensation for the diminution in the vehicles\u2019 resale value due to the perceived safety risk.\u201d Connick, 174 Ill. 2d at 489.\nThe breach of warranty claim was dismissed by the supreme court in Connick, holding that the plaintiffs failed to allege sufficient notice to satisfy the notice requirement for a breach of warranty claim. Connick, 174 Ill. 2d at 495. The Connick court did not discuss the damage allegation for the breach of warranty claim.\nThe statutory consumer fraud count was reinstated but the Con-nick court did not discuss the damage allegation. Connick, 174 Ill. 2d at 501-05. The supreme court held that \u201c[w]e reinstate the Illinois consumer fraud count, but only insofar as it was based on the 1986 Car & Driver article or on Suzuki\u2019s concealment of material facts regarding the Samurai\u2019s safety risk.\u201d Connick, 174 Ill. 2d at 505. However, at least by implication, if the damage allegation had been insufficient the supreme court would not have reinstated the claim.\nIn Perona, the plaintiffs filed a class action based on the alleged unintended acceleration of the Audi 5000 automobiles. Following the decision in Connick, the Perona court dismissed the breach of warranty count due to lack of notice and allowed the statutory consumer fraud count to stand. Perona, 292 Ill. App. 3d at 64, 69. Although the Perona court did not discuss the damage allegations in the complaint, it noted that the plaintiffs claimed that their cars lost their resale value and if the problem were not eventually remedied, their damages would be the amount of the diminution of the resale value. Perona, 292 Ill. App. 3d at 62-63. As in the Connick case, at least by implication, if the complaint had not sufficiently pled damages, then the Perona court would not have reinstated the consumer fraud claim.\nWe believe that the decisions in Connick, Perona, and Verb allow damage claims based on alleged diminished value of a product. Thus, unlike the Verb complaint, plaintiff\u2019s fourth amended complaint adequately alleged damages.\nFor all of the foregoing reasons, we affirm the dismissal of plaintiffs fourth amended complaint.\nAffirmed.\nZWICK and QUINN, JJ., concur.\nWhile appellate court panels are bound only by higher courts, a circuit court may find it confusing to determine by which appellate court it may be bound. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 94 (1997) (Harrison, J., specially concurring, joined by Heiple, C.J.) (the majority holds that a circuit court is bound by the decisions of the appellate court of the district in which its sits and the special concurrence observes that since there is only one appellate court, a decision by any appellate court is binding on all circuit courts in the state).", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Ben Barnow, Alan M. Goldberg, and Juanita H. Chen, all of Barnow & Goldberg, P.C., and Aron D. Robinson, both of Chicago, for appellant.", "Garrett B. Johnson, Brian D. Sieve, and Terrence J. Dee, all of Kirkland & Ellis, of Chicago, for appellee." ], "corrections": "", "head_matter": "FRANK J. SCHIFFNER, on Behalf of Himself and All Other Persons Similarly Situated, Plaintiff-Appellant, v. MOTOROLA, INC., Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201497\u20142456\nOpinion filed June 30, 1998.\nBen Barnow, Alan M. Goldberg, and Juanita H. Chen, all of Barnow & Goldberg, P.C., and Aron D. Robinson, both of Chicago, for appellant.\nGarrett B. Johnson, Brian D. Sieve, and Terrence J. Dee, all of Kirkland & Ellis, of Chicago, for appellee." }, "file_name": "1099-01", "first_page_order": 1117, "last_page_order": 1127 }