Garman dissent: Justices unwisely postponed decision on $10 billion Tillery verdict

Steve Korris Oct. 6, 2011, 1:54pm



SPRINGFIELD – Supreme Court Justices unwisely postponed their day of decision on Stephen Tillery's bid to restore a $10 billion judgment against cigarette maker Philip Morris, according to Justice Rita Garman.

On Sept. 28, she dissented from a decision denying leave to appeal and sending the case back to Madison County Circuit Judge Dennis Ruth.

The Court, which overturned the verdict in 2005, chose not to disturb a Fifth District appellate court opinion finding Ruth must hear a motion Tillery filed in 2008.

Ruth ruled that a two year statute of limitations started running on Dec. 6, 2006, but Fifth District judges held it started running 12 days later.

Garman wrote that the court should have allowed the petition for leave to appeal "because it will inevitably reach us in the normal course of this litigation."

She predicted that whether Ruth grants or denies the motion, someone will appeal.

She wrote that "this court will ultimately have to decide whether the motion was timely and, if so, whether it has merit."

"The parties deserve an answer sooner rather than later and the instant petition for leave to appeal is the proper procedural mechanism for us to provide that answer," she wrote.

"In addition, the people of the state of Illinois and other litigants, whose access to the courts is affected by litigation that endures for a decade or more, also deserve to have us address this matter."

Tillery sued in 2000, on behalf of Sharon Price, claming Philip Morris deceptively promoted health benefits of light and low tar cigarettes.

He claimed no personal injuries but sought the difference between what smokers paid for cigarettes and what they would have paid if Philip Morris hadn't deceived them.

In 2003, after a bench trial, Circuit Judge Nicholas Byron awarded compensatory damages, punitive damages, and legal fees exceeding $10 billion.

The Supreme Court reversed Byron in 2005, finding the Federal Trade Commission authorized light and low tar labels.

Tillery petitioned for rehearing and didn't get it.

He petitioned the U.S. Supreme Court for review and didn't get it.

The Illinois Supreme Court issued a mandate, and Byron dismissed the case.

Tillery moved to vacate judgment in 2008, claiming the U.S. Solicitor General abandoned the position that FTC approved light and low tar labels.

Philip Morris argued that the statute of limitation started running when the Supreme Court issued its mandate.

Tillery argued it started running when Byron dismissed the case.

Ruth agreed with Philip Morris, but Fifth District judges agreed with Tillery.

Illinois Supreme Court Justices denied review, to Garman's disappointment.

"The question presented, while it appears to involve a routine question of the timeliness of a petition, is actually much more complicated because of the unusual procedural posture in which the question arises," she wrote.

"If the appellate court is correct and the later date controls, an order of this court is not truly final until two years after the circuit court carries out its instructions on remand.

"If this is to be the law of Illinois, this court should have the final word on the matter."

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