'Light' cigarette class actions remain open in Madison County

Steve Korris Mar. 14, 2007, 8:33am

Stephen Tillery

Nearly $2 billion in legal fees washed down the drain when the Illinois Supreme Court overturned a Madison County verdict against cigarette maker Philip Morris, but the attorneys have two chances to reclaim the prize.

Class action claims that Stephen Tillery of St. Louis filed in 2000 against R.J. Reynolds and Brown & Williamson remain open in Madison County.

Tillery sued Philip Morris, R.J. Reynolds and Brown & Williamson all at once, claiming they deceived smokers by selling "light cigarettes."

Plaintiffs alleged the companies misled them into believing they would inhale less tar and nicotine if they smoked light cigarettes.

The complaint against Brown & Williamson stated that plaintiff Sharon Howard smoked 20 Misty Lights a day for 15 years. That worked out to more than 100,000 Misty Lights.

Plaintiffs did not claim damage to their health. They sought damages equal to the difference between what they paid for light cigarettes and what they would have paid if the companies had not deceived them.

The court assigned Philip Morris to Circuit Judge Nicholas Byron, Brown & Williamson to Circuit Judge Andy Matoesian, and R.J. Reynolds to Circuit Judge George Moran.

For Brown & Williamson, attorney Marshall Hoekel of St. Louis objected to the complaint. He argued that it quoted misappropriated documents.

Matoesian overruled the objection.

All three companies moved for summary judgment, arguing that federal law pre-empted the claims.

The companies argued that the Federal Trade Commission approved labeling of light cigarettes.

Matoesian certified Howard to represent a class of smokers against Brown & Williamson.

Moran certified Julie Turner to represent a class against R.J. Reynolds.

Byron certified Sharon Price to represent a class against Philip Morris.

In 2002, the judges approved a single class notice for all three suits.

In 2003, Byron held trial on the Philip Morris suit. He awarded $10 billion to three million smokers. He awarded $1.8 billion in legal fees.

Philip Morris appealed directly to the Illinois Supreme Court.

Brown & Williamson moved to stay Howard's suit pending Supreme Court action on Price, and R.J. Reynolds moved to stay Turner's suit.

In the Howard suit, Donald Flack of Korein Tillery opposed a stay.

Although Tillery had sued all the companies at once and published one class notice for all the suits, Flack called Howard's case "an entirely separate lawsuit which involves different parties and different evidence."

Flack attached an affidavit in which Tillery declared he opened a Chicago office with a staff of 15 for light cigarette litigation.

"If a stay were to be entered in this case, it would cause significant disruption to the employment of all attorneys and staff exclusively assigned trial preparation duties in connection with this litigation," he wrote.

"Those employees would no longer have employment opportunities with my firm and upon the ultimate conclusion of the stay, an entire trial team, including attorneys and staff, would have to be reconstructed," he wrote.

"Such a stay would thereby dramatically increase litigation costs to the plaintiffs and class counsel," he wrote.

His firm also pleaded for a chance to win damages before the United States government wiped out the tobacco companies.

An affidavit of attorney Michael Brickman pointed out that the U.S. would pursue a $289 billion claim against the companies in a trial set for 2004.

Brickman wrote, "…if large judgments were entered during the stay period against the defendant, the Class would be severely compromised in its ability to collect a Judgment in this case."

Matoesian granted the motion to stay the Brown & Williamson suit.

Moran denied a stay for R.J. Reynolds. He accepted the argument that other suits might harm the ability of plaintiffs to collect a judgment.

When the Illinois Supreme Court agreed to review Byron's verdict, R.J. Reynolds asked Moran to reconsider his denial of a stay.

In October 2003, Moran signed an order shortening the stay to 90 days. He wrote that he would hold hearings on continuing the stay.

He ordered Philip Morris to bring to each hearing a report of all litigation pending against it.

He denied summary judgment on the issue of federal preemption but wrote that he would allow it at trial.

R.J. Reynolds filed an emergency motion for a stay at the Illinois Supreme Court. The Supreme Court granted it.

In 2005 the Supreme Court reversed Byron in the Price case, holding that the Federal Trade Commission authorized the labeling of light cigarettes.

Last year the Supreme Court denied a motion to reconsider.

Although the courts froze the other two suits to await the Supreme Court ruling on Price, the ruling has not affected either suit.

The Brown & Williamson suit remains open before Matoesian. The R.J. Reynolds suit remains open before Circuit Judge Dave Hylla.

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