Judge Ruth rejects attempt by Tillery to reopen $10 billion tobacco case

Steve Korris Feb. 4, 2009, 8:17am



Madison County Circuit Judge Dennis Ruth rejected Stephen Tillery's bid to reclaim a $10 billion verdict he won against cigarette maker Philip Morris in 2003.

Ruth ruled at a Feb. 4 hearing that he couldn't reopen the case because more than two years had passed since the Illinois Supreme Court reversed the verdict.

Tillery pleaded that the Court's decision in Price v. Philip Morris shouldn't count as final judgment, but Ruth decided it should.

Tillery petitioned in December to reopen Price.

He claimed a new U.S. Supreme Court opinion, Altria v. Good,
proved that the Illinois Supreme Court committed an error.

By denying the petition, Ruth passed up an opportunity to conduct a trial over the trial that led to the verdict.

Tillery and Philip Morris attorney George Lombardi of Chicago each promised to challenge trial testimony that retired circuit judge Nicholas Byron heard.

Byron ruled that Philip Morris violated Illinois consumer fraud law by deceiving smokers into believing "light" and "low tar" cigarettes reduced health hazards.

He awarded billions in damages to three million smokers, plus billions in interest, plus a $1.8 billion fee for Tillery's legal team.

The Illinois Supreme Court ruled in 2005 that consumer fraud law didn't apply because the Federal Trade Commission authorized light and low tar labeling.

The law bars fraud claims over conduct that regulators have authorized.

Tillery requested rehearing and didn't get it.

He sought review at the U.S. Supreme Court and didn't get it.

The Illinois court ordered Byron to dismiss the suit and he complied on Dec. 18, 2006.

A month later Tillery moved to reopen the case so the Illinois Justices could read a brief in a federal case, Watson v. Philip Morris, and admit they made a mistake.

Byron asked the Fifth District appeals court if he could reopen it, but Philip Morris obtained an Illinois Supreme Court supervisory order to halt the proceedings.

Again, Byron carried out an order to dismiss the case.

Byron retired last November and Ruth replaced him on Dec. 3.

On Dec. 15, the U.S. Supreme Court decided that a federal court in Maine could hear similar deception claims under Maine consumer law.

Three days later Tillery petitioned to vacate the judgment Byron entered in 2006.

State law allows two years to reopen a case upon discovery of new facts, so Tillery would beat the deadline if Byron's action counted as final judgment.

Philip Morris answered that the Illinois Supreme Court executed final judgment in 2005 and Byron carried it out.

At the hearing Lombardi told Ruth that if he didn't dismiss, Philip Morris would present evidence of plaintiff misconduct at trial.

Tillery let it pass and said Philip Morris muddied its papers.

He said he wasn't asking Ruth to overturn the Supreme Court.

He said he asked for an order that would allow the Supreme Court to see evidence.

"That has been muddied very skillfully," Tillery said.

Tillery turned out the lights and showed slides on a big screen.

He said Philip Morris introduced Marlboro Lights in 1971.

Philip Morris knew light cigarettes weren't safer and they knew light cigarettes created a more toxic tar, Tillery said.

He said they denied, distorted and minimized health hazards for decades.

He said cigarettes cause one death in five in the United States.

Ruth said, "This claim is not for personal injury. It's for fraud?"

Tillery said, "It is."

He said he introduced the evidence to emphasize the gravity of the fraud.

Tillery said the Illinois court reversed Price but not because he didn't establish fraud.

He asked Ruth to vacate the 2006 order.

Ruth said, "But that's just the order directed by December 15, 2005."

Tillery said Byron's order was final.

"We are in fact the masters of our own petition or motion," Tillery said.

If vacating the judgment accomplished nothing, he said, "That's our problem."

He said Philip Morris claimed he wanted Ruth to reverse the Supreme Court.

Ruth said, "The Supreme Court doesn't take evidence."

Tillery said, "This is an unusual case."

He said he would ask the Supreme Court to revisit testimony of former Federal Trade Commission employee John Peterman.

"Statements he made were just absolutely wrong," Tillery said.

Ruth said, "Does it matter whether they are wrong versus fraudulent?"

Tillery said, "It does not."

Ruth said, "Did you have an opportunity to rebut Peterman?"

Tillery said, "Of course, through a witness, but not through the agency speaking."

He said he couldn't put FTC on the stand, and he offered to take the stand himself to describe his efforts to obtain agency testimony.

He turned on the lights.

Lombardi said, "Every time they have made this argument they have failed."

Ruth asked if there was a difference in facts at the U.S. Supreme Court.

Lombardi said Good and Price looked at the same facts under different laws.

He said the U.S. Supreme Court had an opportunity to take Price and didn't take it.

Lombardi said while Good was being briefed, the U.S. Solicitor General addressed Price and found it was not relevant.

He said that in order to challenge Byron's order, Tillery would have to prove that Byron didn't abide by the Supreme Court mandate.

He said state law allows reopening for new facts and not for relitigation.

Ruth said, "Is the United States Supreme Court interpretation of all the facts in and of itself a fact?"

Lombardi said, "The Good case is not a fact."

"Would Good compel a change in Price? It would not," Lombardi said.

He said Price was based entirely on state law.

He said the Court held that regulatory authorization could be express or implied.

He told Ruth that if he dismissed, Tillery would have appeal

"Mr. Tillery can take the action he needs to take," Lombardi said.

Ruth asked Tillery if he had an opportunity to present the same
issues and the Supreme Court declined to hear them.

Tillery said, "It is my obligation as class counsel to do everything I can to advance the interests of the class."

Ruth asked if Good was a fact.

Tillery said no. He said he could have filed a petition when FTC submitted its brief.

His associate Stephen Swedlow of Chicago said, "Just because we filed after Good doesn't mean Good is our fact."

Ruth asked Lombardi what would happen if he didn't dismiss.

Lombardi said other cases established concealment by a plaintiff expert.

He said the expert concealed questions from a survey to distort the results.

He said Tillery's facts all came up after the proceeding ended.

At decision time, the question of new facts didn't matter.

Ruth said he would sustain the motion to dismiss because more than two years had passed since the Illinois Supreme Court entered final judgment.

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