Stephen Tillery of St. Louis insists he can't be too diligent in laboring to restore a $10 billion Madison County verdict against cigarette maker Philip Morris.
Tillery claims a Dec. 15 opinion of the U.S. Supreme Court, Altria v. Good, provides new evidence that should reopen his case against Philip Morris.
"Plaintiffs are not seeking to re-litigate the same law and facts as there are new, contradictory facts and law for the Illinois courts to assess," he wrote on Jan. 20.
Parties presenting new evidence must perform due diligence, he wrote.
"It makes little conceptual sense to require 'due diligence' but at the same time bar parties who have been too diligent," he wrote.
Circuit Judge Dennis Ruth has set a Feb. 4 hearing, following last minute cancellation of a Jan. 23 hearing.
Tillery client Sharon Price sued in 2000, claiming Philip Morris fraudulently sold "light" and "low tar" cigarettes by exaggerating their health benefits.
Ruth inherited the case from retired judge Nicholas Byron, who in 2003 awarded damages to millions of smokers and granted class counsel a fee of $1.8 billion.
In 2005 the Illinois Supreme Court discarded the Price verdict, ruling that the Federal Trade Commission approved light and low tar labeling.
Tillery sought rehearing, but the Justices denied it.
He petitioned the U.S. Supreme Court for review, but they denied it.
On Dec. 18, 2006, Byron dismissed the case.
In 2007, Tillery asked Byron to reopen it.
Tillery argued that a pending opinion of the U.S. Supreme Court would force the Illinois Supreme Court to reverse its position.
Byron asked the Fifth District appeals court if he could reopen the case, but on a petition from Philip Morris the Illinois Supreme Court stopped the proceedings.
The Justices ordered Byron to dismiss the case again, and he obeyed.
The decision Tillery awaited didn't help his case after all, but he found new hope in Altria v. Good.
His Jan. 20 brief pleaded that "new facts have come to light which contradict the facts relied on by the Price Court."
"Not only does Good contradict Price repeatedly, but the Good Court accepted many of the arguments made by plaintiffs that were rejected by the Price Court."
He wrote that he didn't intend to overturn the Illinois Supreme Court decision, but only to vacate Byron's order dismissing the case.
"As a practical matter, the Illinois Supreme Court will have the opportunity to assess this issue and the new facts pertaining thereto if it so chooses but only if this Court grants plaintiffs' motion," he wrote.
For Philip Morris, Jason Rankin of Edwardsville welcomed Supreme Court action.
"In light of the Supreme Court's repeated rejection of plaintiffs' arguments, this Court has no choice but to dismiss plaintiffs' petition," he wrote on Jan. 22.
"Plaintiffs are free to appeal that dismissal and to seek the opportunity to plead their case for reopening directly to the Illinois Supreme Court," he wrote.
The Supreme Court didn't intend to allow a losing party to relitigate issues that have been fully considered and finally resolved, he wrote.
"Indeed, such a rule would throw the judicial process into chaos," he wrote.