#5 News Story: Philip Morris argues before state's high court

Ann Knef Dec. 28, 2004, 6:10am

Plaintiff's Attorney Stephen Tillery

Plaintiff's Attorney Joseph Power

In the post-election hush, one of the most compelling news stories to be found anywhere in America unfolded before the Illinois Supreme Court Nov. 17.

An overflow crowd of reporters and spectators arrived early to view a dramatic display of legal posturing.

At issue was the landmark $10.1 billion verdict against Philip Morris USA that originated in a Madison County courtroom last year by Circuit Judge Nicholas Byron. The decision supported smokers' claims that they were duped into believing "light" cigarettes were safer than regular ones.

At the state's highest court, attention was focused on the mighty and powerful attorneys who arrived to do the bidding of their clients.

Former three-term Illinois Governor James R. Thompson, for the defense, argued that the lower court's "grave" decision should be reversed.

"Opening the door to this kind of speculative damage that is untethered to any kind of market reality would turn the world of damages in this state on its head and leave no manufacturer safe," Thompson argued.

Plaintiff's attorney Stephen Tillery of Korein Tillery in St. Louis, who stands to earn $1.7 billion in legal fees if the verdict stands, was in the courtroom.

But his arguments were left to others, including Chicago attorney Joseph Power, Jr.

Power's inclusion on the case ostensibly knocked Supreme Court Justice Robert Thomas, a conservative Republican, off the bench.

Thomas, figured to be the most pro-business Justice on the bench, recused himself because Power represents him in another matter.

Justice Philip Rarick of Fairview Heights was not present for the hearing. Lloyd Karmeier, who was elected to the Illinois Supreme Court Nov. 2, will be sworn into office Dec. 6, replacing Rarick. Karmeier may take part in proceedings.

For the verdict to be thrown out, at least four justices would have to favor overturning Judge Byron's decision.

Power told the court that Philip Morris' conduct was "reprehensible" because it deliberately hid documents from the American public regarding the dangers of light cigarettes "while they hooked new smokers including our children."

"Year in and year out 440,000 people die from cigarette smoking," Power said. "That is more Americans, more deaths per year from cigarette smoking than all American soldiers killed in World War II."

Chief Justice Mary Ann McMorrow questioned whether Power was off track.

"Let me interrupt you, it seems that most of your arguments are directed to health issues. However, the complaint in this case is not, is not about health issues, rather it is focused on economic damages," McMorrow said.

"This shows their (Phillip Morris) conduct," Power said. "This goes to the issue of why this (circuit) judge in this record decided this way."

While Power argued at length about the deleterious effects of cigarettes on its users, the original plaintiff in Price vs. Phillip Morris, Madison County resident, Sharon Price, still smokes.

An East Alton police dispatcher, Price, was recently photographed at an Edwardsville restaurant smoking.

The verdict's $10.1 billion judgment, enough to twice satisfy the state's budget deficit, by comparison paid paltry sums to the plaintiffs. Price received $11,384.

Chicago lawyer Stephen Swedlow, who also argued for the plaintiff, said the billions were warranted.

"Phillip Morris didn’t offer it’s own damage capitalization. It offered theory as to why the damages should be zero," Swedlow said. "In the stock market when new information of a product comes out, the price of any particular stock can adjust but here, over time as more information about the true dangers of smoking comes to light to the public, the price of cigarettes has gone steadily up and that’s because Phillip Morris sets the price of Marlboro Lights and regular Marlboro."

A supreme court decision is not expected until some time next year.

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