Ill. suit over light cigarettes reopened

Jessica M. Karmasek Sep. 29, 2011, 12:37pm


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court on Wednesday declined review of an appellate court's decision allowing plaintiffs to ask a lower court to reopen a case against cigarette maker Philip Morris.

According to a 70-page disposition, the Court denied the company's petition for leave to appeal.

Plaintiffs' lawyer Stephen Tillery told The Washington Post that he believes the Court's denial moves a $10 billion judgment "a step closer toward a final confirmation."

In 2003, now-retired Madison County Circuit Judge Nicholas Byron ruled that Philip Morris deceived three million smokers into believing "light" and "low tar" cigarettes reduced health hazards.

Byron awarded billions in economic damages under Illinois consumer fraud law, billions in interest, and nearly $2 billion for Tillery's legal team.

The Illinois Supreme Court overturned Byron in 2005, ruling that the Federal Trade Commission authorized light and low tar labeling. The consumer fraud law bars claims over conduct regulators have authorized.

Tillery requested a rehearing and didn't get it. He then sought review by the U.S. Supreme Court, but didn't get it.

The Illinois Court eventually ordered Byron to dismiss the suit, and he complied on Dec. 18, 2006.

A month later, Tillery moved to reopen the case so state Supreme Court justices could read a brief in another case and admit they made a mistake.

Byron asked the Fifth District appeals court if he could reopen it.

Philip Morris retained former Gov. Jim Thompson, who obtained a Supreme Court supervisory order that halted the proceedings.

Again, Byron carried out an order to dismiss the suit.

Byron then retired in November 2008 and Dennis Ruth replaced him on the circuit court in December.

On Dec. 15, 2008, the U.S. Supreme Court decided that a federal judge in Maine could hear similar deception claims under Maine consumer law.

Three days later, Tillery petitioned to vacate the judgment Byron entered in 2006.

State law allows two years to reopen a case on discovery of new facts, so Tillery would beat the deadline if Byron's action on Dec. 18, 2006 counted as final judgment.

Philip Morris answered that the Illinois Supreme Court executed final judgment in 2005 and Byron carried it out as a ministerial act.

At the time, Tillery said he wasn't asking Ruth to overturn the Supreme Court, but asking for an order that would allow the Court to see new evidence. He argued that Philip Morris denied, distorted and minimized health hazards for decades.

Ruth ruled in February 2009 that he couldn't reopen the case because more than two years had passed since the state Supreme Court reversed the verdict.

Tillery appealed Ruth's order the next month, again trying to reinstate the $10 billion verdict.

Wednesday's state Supreme Court action came in response to an appellate court's decision that found the plaintiffs' request to petition a court to re-open the case as timely.

"Today's decision is purely procedural and not a decision on the merits," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA.

Garnick said the high court's decision simply means that the plaintiffs are allowed to present their petition to the trial court.

He said Philip Morris looks forward to presenting its arguments about why state law makes it clear the plaintiffs cannot re-open the case.

"The plaintiffs' two previous attempts to re-open this case were rejected by the Illinois Supreme Court and the U.S. Supreme Court has also denied review. We believe that the plaintiffs' latest attempt is equally without merit," Garnick said.

From Legal Newsline: Reach Jessica Karmasek by email at

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