Tillery and Byron team up to revive $10.1 billion Philip Morris verdict

Steve Korris May 3, 2007, 1:00pm

Judge Nicholas Byron

Stephen Tillery

Madison County Circuit Judge Nicholas Byron and attorney Stephen Tillery have brought back to life a $10.1 billion light cigarette class action case that Byron dismissed last year under an order from the Illinois Supreme Court.

At a May 2 hearing Byron told Tillery that he would certify for appellate review a question on his jurisdiction in Price v. Philip Morris.

Byron told Tillery to write the question.

Tillery practically guaranteed Byron that the Illinois Supreme Court would take another look at Price and uphold his judgment.

In 2003 Byron awarded $10.1 billion to a class of Philip Morris smokers. They claimed they were duped into believing light cigarettes were safer than regular ones. In 2005 the Illinois Supreme Court reversed Byron's judgment, four-to-two.

Justice Rita Garman held for the majority that the Federal Trade Commission authorized labeling of light cigarettes.

At Wednesday's hearing Tillery said the U.S. Solicitor General took a position that the FTC did not authorize labeling of light cigarettes.

After reading from a brief in a case before the U.S. Supreme Court, Tillery said, "Directly contrary factually to the holding of the Illinois Supreme Court. Absolutely at odds with it."

The brief stated that the FTC never adopted any official regulatory definitions of the terms 'light' or 'low tar.'

"The question as I go forward is not whether or not this would change the result," Tillery said. "There is no doubt it changes the result."

He said the U.S. Supreme Court would decide the case June 25.

"There is no question that the U.S. Supreme Court's pronouncement on these issues would exceed and reverse the authority or power of the Illinois Supreme Court," Tillery said.

"If you look at these facts clearly, they show this court that an injustice has been done to the class of people here because we know – everybody in the courtroom knows – that the Garman opinion is wrong," he said.

For Philip Morris, George Lombardi of Winston and Strawn told Byron he had no jurisdiction to reopen the case.

Byron said he did not reopen it, but Lombardi insisted that he has done so by asking the appellate court for review.

Tillery's class actions assert no health claims. He seeks the difference between what smokers paid for light cigarettes and what they would have paid if they had known the truth.

In truth, he argued, smokers did not necessarily improve their health by choosing light cigarettes over other cigarettes.

After the Illinois Supreme Court struck down Price in December 2005, Tillery moved for rehearing. The Illinois Supreme Court denied it.

Tillery petitioned the U.S. Supreme Court to hear an appeal. The U.S. Supreme Court denied the petition.

Last December, Byron dismissed the suit.

In January, Tillery moved to vacate or withhold judgment.

Lombardi told Byron he properly dismissed the suit.

"The idea that you can come back and continually reinvigorate a case by saying another case may come out that might help me in the future is simply not sufficient under the law," Lombardi said.

Byron said, "Let me underscore something here. I have not made a dime from this case. I have received no benefit."

Earlier this week Byron was set to be honored at the third annual Senator Paul Simon, Senator Paul Wellstone Awards program in Chicago.

Sponsored by USAction and Citizen Action/Illinois, the award recognized Byron for his work "to ensure justice in cases involving injury from asbestos and tobacco."

Citizen Action has a board of directors comprised mainly of union heads and other liberal thinkers. USAction, which co-sponsored the awards program, is an anti-war, environmentalist group.

A matter of jurisdiction

At Wednesday's hearing Byron said, "I am here to follow the law and that's all I intend to do, period, in spite of the intimations, by the way, of various members of the media."

He told Tillery, "Let's assume that something favorable comes out for you. Then I think it's incumbent upon you to find out if I can do anything more."

Tillery said, "If the court could at least certify a question."

Byron said, "I think I'm doing you a favor by what I'm proposing here. I'm not going to change anything."

"If you want to certify something, fine," Byron said. "I'll even certify, have it certified, for you."

Tillery said, "I think this court maintains while that matter is being certified, this court has to maintain jurisdiction. Otherwise there is no proper vehicle for certification of the issue."

"I would think, knowing what I know about the Illinois Supreme Court, based on this information, that they would want to correct this," Tillery said. "That they would want to correct what is clearly an error."

Lombardi said, "He's asking you to resume jurisdiction." Lombardi said that violated the Illinois Supreme Court mandate.

Byron said, "Do I have jurisdiction or do I not?"

Lombardi said, "Zero."

Tillery said Byron could certify a question. Byron said he would.

Tillery said he would send one up. Byron told him to go ahead.

Lombardi said, "You have no jurisdiction to certify a question because you have no case before you."

Byron said, "I certainly have the power to ask an appellate court if I do have jurisdiction or not."

Lombardi said, "Judge, the appellate court has told you. The Supreme Court has said -"

Byron said no, five times.

Lombardi read the mandate: "We reverse the judgment of the circuit court and remand with instructions to dismiss."

Byron said, "I've dismissed it."

Lombardi said, "But what you are doing now is you are certifying a question that you have no authority, no jurisdiction, to certify."

Byron held it against Philip Morris attorneys because they too filed a motion after he dismissed Price. In that motion, Larry Hepler of Hepler Broom sought to retrieve records from the circuit clerk.

Byron said, "Then why did you file a motion?"

Lombardi said, "On the documents, Judge, that doesn't go -"

Byron said no, three times.

Lombardi said wait, four times.

Byron said no, three times.

Hepler said, "That is an administrative matter. Obviously the court can deal with ministerial matters."

Byron said, "Well then, I have to have jurisdiction. Look, I'm doing nothing to disturb this case."

Lombardi said, "You are, Judge."

Byron said, "No, I'm not, period. End of conversation."

Lombardi said, "You have now ignored the mandate of the Illinois Supreme Court."

Byron said, "That is your opinion."

Lombardi said, "They have convinced your honor to reopen the case."

Byron said, "I'm not going to reopen the case."

Lombardi said, "You have reopened it."

Byron said, "No, I haven't."

Lombardi said, "By certifying a question, Judge -"

Byron said, "I have not reopened it."

Hepler brought up the records. He said he followed normal procedure.

He said, "Your honor inserted himself into that and directed the clerk not to release the records."

Byron said, "That's right."

Hepler said, "I submit you had no jurisdiction to do that."

Byron said, "That is correct."

Hepler said he did not know how the court could stop the clerk from carrying out his duties.

Byron said, "I think I can inquire of the appellate court if I have jurisdiction or not. If they say I don't, that's the end of the point, period. Thank you."

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