Philip Morris counters Tillery's attempt to reopen Price

Steve Korris Jan. 23, 2009, 12:34am


Philip Morris USA has countered Stephen Tillery's bid to resurrect a $10 billion class action verdict that Madison County Circuit Judge Nicholas Byron awarded in 2003.

On Jan. 15 Philip Morris USA asked Byron's successor, Circuit Judge Dennis Ruth, to dismiss a motion that would reopen claims of Tillery client Sharon Price.

"Plaintiff's petition alleges no new facts but rather attempts to relitigate the same issues it has already unsuccessfully raised three times before the Illinois Supreme Court," Larry Hepler of Edwardsville wrote for Philip Morris USA.

"This Court has no power to second guess the Illinois Supreme Court's decision on an issue of Illinois law," he wrote.

Tillery argues that a new decision from the U.S. Supreme Court, Altria v. Good, proves that the Illinois Supreme Court shouldn't
have overturned the verdict.

The decision allowed a federal judge in Maine to apply Maine consumer law to a claim that Philip Morris fraudulently marketed "light" and "low tar" cigarettes.

Tillery won his verdict on a similar claim under Illinois consumer law, but the Illinois Supreme Court ruled that federal cigarette labeling law pre-empted state law.

Now Tillery asserts that pre-emption should never have protected Philip Morris USA.

According to Hepler, the new decision doesn't reach that far.

"Good does not cast doubt on the accuracy of the Illinois Supreme Court's decision in Price, as Good was decided entirely under federal law while Price, on the other hand, was based exclusively on Illinois law," he wrote.

He wrote that parties can seek relief for newly discovered facts but can't seek relief from judgment based on subsequent changes in law.

Hepler declared the motion untimely, noting that more than two years have passed since the Illinois Supreme Court overturned the verdict.

Ruth set a hearing on Tillery's motion Friday, Jan. 23.

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