Illinois Supreme Court drives stake in Tillery tobacco case for third and final time

Steve Korris Aug. 22, 2007, 7:21am

For the third time the Illinois Supreme Court has knocked down Stephen Tillery's $10.1 billion class action verdict against Philip Morris.

In an order this morning, the Court allowed the tobacco company's motion for a supervisory order blocking the 5th District Appellate Court from re-opening the case.

The Court directed Madison County Circuit Judge Nicholas Byron to vacate his May 9 order certifying questions of his jurisdiction to the 5th District. Byron dismissed the case in December 2006 at the command of the Supreme Court.

In 2003, Byron granted judgment in favor of a class of about three million smokers of light cigarettes. Tillery claimed the class suffered economic damages, not health damages, by spending more than they would have if Philip Morris had not deceived.

Philip Morris appealed directly to the Illinois Supreme Court. At first the court denied direct appeal but later they granted it and kept the case away from the 5th District.

In 2005, the Court ruled in favor of Philip Morris, holding that federal law preempted state fraud claims because the Federal Trade Commission (FTC) authorized light labeling.

Tillery asked the Court for rehearing and the Court denied it.

He asked the U.S. Supreme Court for a hearing, but he did not get it.

The Illinois Supreme Court then issued a mandate to Byron to dismiss the case. Byron granted it but Tillery moved in January to vacate Byron's order and reopen the case.

At the May 9 hearing Tillery argued that in a separate U.S. Supreme Court case the FTC specifically denied that it regulated light labeling.

He predicted that the U.S. Supreme Court would issue a decision supporting the FTC position, and that the Illinois Supreme Court would have to admit an error and reopen the case.

In June Tillery reported to the Illinois Supreme Court that the U.S. Supreme Court had rendered an opinion in the other case vindicating his argument.

Five Illinois justices disagreed. Their brief order carried no signature. Justices Charles Freeman and Thomas Kilbride dissented.

Freeman wrote that the 5th District could have refused to hear it.

He wrote, "I do not believe the question presented here can be characterized as being of such importance to the administration of justice that it necessitates this Court's exercise of supervisory authority."

He wrote, "The Court's action today is entirely predictable because it quickly and quietly closes the book on a case that a majority of this court, I am sure, would rather forget."

He wrote, "Had the Court taken steps on rehearing to learn more about the various FTC actions that exist and thus render a more informed opinion, as I suggested at the time, we would not be in the situation we are in today."

Freeman faulted his colleagues for continuing to ignore the points he made when he dissented from their denial of Tillery's rehearing.

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