Hearing set for Tuesday in decade-old case over 'light' and 'low tar' cigarette labeling

Bethany Krajelis Aug. 15, 2012, 12:46pm





Madison County Circuit Judge Dennis Ruth will hear arguments next week over a petition seeking relief from the Illinois Supreme Court's dismissal of a $10.1 billion verdict in the class action lawsuit brought against Philip Morris in 2000.

Set for 9 a.m. Tuesday, the hearing will mark St. Louis attorney Stephen Tillery's latest attempt to reignite the consumer fraud case over "light" and "lowered tar and nicotine" cigarette labeling that has been smoldering in the state's court system for more than a decade.

The issues currently before Ruth deal with whether the majority of the high court relied on "factually inaccurate" information to reach its 4-2 ruling that overturned the verdict and if post-Price statements made by the FTC, as well as a 2008 U.S. Supreme Court opinion, constitute "newly-discovered evidence" that warrants relief.

In the plaintiffs' 2008 petition, Tillery contends that Justice Rita Garman, who wrote the majority opinion for the court, relied on testimony of a Philip Morris expert witness that he claims proved to be false a few years later.

During the 2003 bench trial before now-retired Circuit Judge Nicholas Byron, Dr. John Peterman testified that the Federal Trade Commission (FTC) permitted and authorized the use of the terms "light" and "lowered tar and nicotine" in cigarette descriptors.

Byron determined that Philip Morris had misled customers through its light and low tar labeling and entered a $10.1 billion verdict in favor of the plaintiffs, who brought what is believed to be the nation's first consumer fraud lawsuit against a tobacco company.

In its 2005 decision that overturned the Byron verdict, the majority of the Supreme Court found that Philip Morris could not be held liable under the state's Consumer Fraud Act for using these terms because the FTC permitted them.

Tillery, however, asserts in his petition that the U.S. Solicitor General that same year abandoned the position that the FTC had a long standing policy approving light and low tar labels, a statement he claims shows that Peterman's testimony was "factually inaccurate."

He further argues that relief in the Price case is warranted based on Altria Group v. Good. In 2008, the nation's court in that case held that a state law prohibiting deceptive tobacco advertising was not preempted by a federal law regulating cigarette advertising.

But, attorneys for Philip Morris contend that neither the 2008 FTC statement nor the U.S Supreme Court ruling constitutes newly-discovered evidence or even evidence for that matter.

The tobacco company argues that Section 2-1401 of the Illinois Code of Civil Procedure, which was what Tillery's petition for relief was filed pursuant to, is "not a ticket to eternal litigation."

Philip Morris asserts in its March memo in opposition to Tillery's petition that section 2-1401 requires plaintiffs to prove, among other factors, that the allegedly newly-discovered evidence existed at the time the judgment was rendered, but was unknown, and that it would have affected the outcome of the case.

This avenue for seeking relief, the company states, does not allow judgments to be vacated just because events that take place after the judgment might have affected the outcome of the case had it been in progress when those events occurred.

Furthermore, Philip Morris argues that if the court determines that the 2008 events merit the reopening of the decade-old case, then it should be given the same opportunity.

The company claims that there is "a wealth of new evidence and new court decisions" that would corroborate Justice Lloyd Karmeier's view that the plaintiffs didn't have a viable claim for class-wide damages.

It is unclear whether Ruth will issue a ruling on the petition for relief at Tuesday's hearing or just take it under advisement.

Given the pending nature of the case, Tillery declined comment through a firm spokesman.

A message left for W. Jason Rankin of HeplerBroom in Edwardsville, one of attorneys representing the tobacco company, was returned by a spokesman for Philip Morris' parent company, Altria Client Services. He also declined comment.

In addition to Rankin, Philip Morris is represented by Larry Hepler of HeplerBroom, and Chicago attorneys Michele Odorizzi of Mayer Brown and George Lombardi of Winston & Strawn.

Price History

The case that has bounced between the circuit, appellate and supreme courts in Illinois all began in 2000, when Tillery filed a lawsuit on behalf of Sharon Price.

The suit claimed that Philip Morris deceptively promoted health benefits of light and low tar cigarettes. It didn't make claims for personal injury, but rather sought the difference between what smokers paid for cigarettes and what they would have paid if Philip Morris hadn't deceived them.

Following a bench trial in Madison County, Bryon in 2003 awarded plaintiffs damages in the amount of $10.1 billion, which included $1.8 billion in attorney's fees.

After the Illinois Supreme Court ordered Byron to dismiss the case in 2005, Tillery requested a rehearing. The justices denied his request, spurring Tillery to seek review from the U.S. Supreme Court, which denied it.

Following the Illinois Supreme Court's order, Byron dismissed the case in 2006. Two years later, Tillery sought relief from the dismissal in Madison County Circuit Court.

Philip Morris moved to dismiss the petition under the statue of limitations, as well as for failing to allege a basis for relief.

Ruth, who had inherited the case from Byron when he retired, ruled in favor of the tobacco company, saying that the statute of limitations to file the petition had expired.

Tillery appealed and like Ruth, the Fifth District Appellate Court determined that the statute of limitations applied and did not address the tobacco company's claim that the plaintiffs failed to allege a basis for relief.

The appeals panel remanded the case back to Ruth on the question of facts.

Philip Morris appealed to the Illinois Supreme Court, which refused to disturb the appellate court ruling last September.

Although she wrote the majority opinion for the court in 2005, Garman dissented from the court's decision to deny the tobacco company's petition for leave to appeal.

She said her colleagues should have granted Philip Morris' petition "because it will inevitably reach us in the normal course of this litigation."

"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," Garman 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."

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