Byron won't discuss decision, others compelled to react

Ann Knef Dec. 15, 2005, 3:38am

Attorney Larry Hepler

Attorney Edward Sweda

A flurry of television cameras and inquiring reporters were not able to penetrate the chambers of Madison County Circuit Judge Nicholas Byron on Thursday. His bailiff, Fred Perry, said the judge would not be taking any calls regarding the Illinois Supreme Court's decision to overturn Byron's $10.1 bench verdict against Philip Morris.

A Record reporter who got a call through to Byron soon after the decision was released was told, "Have a good day." Byron then hung up without comment.

Byron's colleague, Circuit Judge Daniel Stack responded that he had not had an opportunity to read the opinion.

"I have yet to read the opinion so I cannot comment on the case," Stack said.

He and fellow Circuit Judges Don Weber and George Moran said they are likely not to comment because they preside over pending tobacco litigation.

Local defense counsel, Larry Hepler, of Burroughs, Hepler, Broom, MacDonald, Hebrank & Ture of Edwardsville, said he and others were still digesting the lengthy opinion and would reserve specific comment.

But he expressed that it was a good day for the defense team, which also includes former Illinois Governor James R. Thompson of Chicago.

"The entire trial team, we put our hearts and souls into this case," Hepler said. "We're very pleased with the result."

Plaintiff's attorney Stephen Tillery of Korein Tillery in St. Louis did not return a phone call.

But he told the Washington Post that grounds are strong for appeal to the U.S. Supreme Court because the decision involved matters of federal law.

Here is an excerpt from the Post article:

"This is another corporate giant which has once again been pardoned for its abhorrent behavior. Thousands of consumers are left to pay the ultimate price for Philip Morris's conduct," Tillery said.

"We strongly disagree with the court's conclusion that the Federal Trade Commission authorized the use of the words 'lights' or 'lower tar and nicotine.' The Federal Trade Commission has never issued a trade rule, or any other ruling, authorizing the use of those terms," he said.

Tillery also said the use of the term "lights" to market cigarettes has been banned in Brazil, Canada, Israel and the European Union, but not in the United States. "The World Health Organization has recommended that all countries of the world do the same," he said.

A senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston called the decision a "victory for corporate wrongdoing in Illinois."

"The Illinois Supreme Court today gave corporations the green light to defraud consumers by eliminating what the Massachusetts Supreme Judicial Court last year called 'pragmatically, the only method whereby purchasers of Marlboro Lights' in that state 'can seek redress for the alleged deception' by Philip Morris," said Edward L. Sweda, Jr.

Sweda also points out that 48 state courts have yet to rule on the class certification issue.

"There is now one state supreme court that has certified a plaintiff class in a light cigarette case (Massachusetts), one that has decertified a plaintiff class (Illinois) and 48 that have yet to rule on this issue.

"While the majority opinion states that today's ruling 'is in no way an expression of approval of PMUSA's alleged conduct,' it effectively immunizes the company for its light cigarette scam, even though many of the acts cited by the plaintiffs occurred after the consent decrees with the Federal Trade Commission were entered into.

"Unless today's ruling is eventually overturned by the United States Supreme Court, the thousands of Illinois consumers defrauded by Philip Morris' outrageous and reprehensible wrongdoing are left without a remedy."

Richard Daynard, a professor and associate dean at Northeastern University School of Law and chairman of the Tobacco Products Liability Project noted that, "a ruling such as this really harks back to the days when snake oil salesmen could make any outrageous product claim without fear of being held accountable."

"The fact that there is a dissent makes it extremely likely the Supreme Court will hear the case," Daynard added.

Others praised the decision, including Ed Murnane, president of the Illinois Civil Justice League. He said the case was flawed from the outset and one that "would not have progressed in a venue other than Madison County."

"While the Court's ruling stands on its own, we hope it is yet a further indication that Illinois continues to move closer to a fair system of civil justice.

"It is significant to note that the ruling was agreed to by two justices elected as Republicans from downstate Illinois and two elected as Democrats from Cook County. This also is encouraging in a state in which judicial selection is frequently based on political affiliation."

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