Tillery wants to re-open tobacco case

Steve Korris Jan. 5, 2009, 11:00am



Stephen Tillery of St. Louis seeks to restore a $10 billion class action verdict against tobacco company Philip Morris USA, claiming a new U. S. Supreme Court decision proves that the Illinois Supreme Court shouldn't have reversed the verdict.

Tillery petitioned on Dec. 18 to vacate an order of Madison County Circuit Judge Nicholas Byron, dismissing the case at the direction of the state Supreme Court.

The state Court held in 2005 that Federal Trade Commission regulation of "light" and "low tar" cigarette advertising pre-empted claims under state consumer fraud law.

In 2003, Byron awarded more than $8 billion in damages to plaintiff Sharon Price and a class of smokers, plus almost $2 billion in legal fees for Tillery.

The petition to revive the suit arrives on the bench of new Circuit Judge Dennis Ruth, who took over Byron's cases upon Byron's retirement Nov. 30.

It asserts that the U. S. Supreme Court expressly rejected the conclusions of the Illinois Supreme Court in a Dec. 15 opinion, Altria Group V. Good.

The opinion held that a federal court in Maine can apply Maine consumer law to claims that tobacco companies fraudulently marketed "light" and "low tar" cigarettes.

The opinion "rejected the basis for the Price reversal, namely that the FTC had specifically authorized the conduct plaintiffs complained of in Price," Tillery wrote.

"The Good decision eviscerates the rationale of the Illinois Supreme Court in holding that the FTC specifically authorized PMUSA's conduct.

"There can be no question that plaintiffs have demonstrated the existence of a meritorious claim, as they prevailed on their claims at trial in this court.

"That verdict was reversed based on an interpretation of FTC conduct that the U. S. Supreme Court has now rejected," he wrote.

Price sued Philip Morris in 2000, alleging it misled smokers into believing that light and low tar cigarettes reduced health risks.

Tillery sought damages equal to the difference between what smokers paid for cigarettes and what they would have paid if Philip Morris had not misled them.

Byron, after a bench trial, ruled in favor of Tillery's class and approved an expert's damage assessment to the penny.

The state Supreme Court reversed Byron in 2005.

Tillery asked the U. S. Supreme Court to review the decision, and in 2006 the Court denied review.

The state Supreme Court ordered Byron to dismiss the case, and he complied.

Tillery tried to revive it in 2007, arguing that a pending U. S. Supreme Court decision, Watson v. Philip Morris, would force the state Supreme Court to change its position.

Byron certified a question to the Fifth District appellate court in Mount Vernon, asking if he could reopen the case.

Philip Morris petitioned the state Supreme Court to stop the proceedings, and the Court once again instructed Byron to dismiss the suit.

The U. S. Supreme Court decision in the Watson case didn't lend Tillery any support, but he found cause for hope in last month's decision in the Good case.

He wrote that if Judge Ruth maintains judgment for Philip Morris, "great harm will have been done to plaintiffs and the class."

No harm would result to Philip Morris because the court has released it from a bond that Byron required, Tillery wrote.

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