Ruth hears arguments over petition in cigarette labeling case; Declines to issue immediate ruling

Bethany Krajelis Aug. 21, 2012, 2:21pm



After a nearly eight-hour hearing today, Madison County Circuit Judge Dennis Ruth declined to immediately rule on a petition seeking relief from the dismissal of a $10.1 billion verdict over "light" and "low tar" cigarette labeling.

Taking the attorneys' arguments under advisement, Ruth said at the end of today's hearing that he had not yet made up his mind and did not know how long it would take to reach a final decision on the petition that could reignite the class action lawsuit brought against Philip Morris in 2000.

St. Louis attorney Stephen Tillery asked Ruth to grant his petition, which he filed in 2008 on behalf of Sharon Price and the other plaintiffs in the suit that has made appearances in all three court systems in the state, as well as the U.S. Supreme Court.

Filed under Section 2-1401 of the Civil Code of Procedure, the petition claims that relief is warranted because "newly-discovered evidence" could have affected the outcome of the Illinois Supreme Court's order that dismissed the case in 2006.

That evidence, Tillery contends, came to light in 2008, when the U.S. Supreme Court handed down its ruling in Altria Group v. Good and the Federal Trade Commission made statements that it did not have a policy approving "light" and "low tar" labeling.

Tillery said the FTC statements show that testimony of a Philip Morris' expert witness at the 2003 trial was "factually inaccurate."

That witness' testimony, he asserts, was relied upon by Justice Rita Garman, who wrote the majority opinion in the court's 4-2 ruling that overturned the multi-billion verdict in 2006.

George Lombardi, a Chicago attorney who made arguments today on behalf of Philip Morris' legal team, said the evidence Tillery brought up in his 2008 petition does not constitute newly-discovered evidence and would not have affected the outcome of the case.

He told Ruth that the court in Good used the same factual information regarding FTC history that the Illinois Supreme Court used in Price v. Philip Morris. The difference, however, is that the two courts applied different legal standards to reach their decisions, he said.

Lombardi said the Good court focused on the issue of federal preemption in the context of cigarette advertising whereas the Price court looked at the labeling issue under the Illinois Consumer Fraud Act.

The two attorneys disagreed on several other issues, including whether the plaintiffs' petition met the standards required under Section 2-1401, if they used due diligence in voicing their concerns over the alleged evidence that came to light in 2008 and Ruth's options for ruling on the matter.

Although Ruth did not make a decision on the petition today, he did grant Philip Morris' request to file a petition seeking to leave to file a formal answer to the plaintiffs' petition.

Ruth stressed, however, that he only gave the tobacco company the OK to file its request and did not say whether he would approve it.

The issue over the lack of an answer to the petition came up after Tillery told Ruth that Philip Morris essentially admitted the facts alleged in his petition by not filing an answer.

Lombardi, however, said he filed the memorandum in opposition to the petition in an effort to streamline the process by combining his client's motions for summary judgment and dismissal.

Philip Morris, he told Ruth, obviously disagrees with some of the facts alleged in Tillery's petition and said Tillery's strategy to focus on the lack of an answer amounts to gamesmanship.

Stressing his desire to "get the record straight" as the matter would likely be appealed, Ruth granted Lombardi's oral request to file leave to file an answer to the petition.

Ruth also asked attorneys on both sides of the battle to provide him with additional information regarding some of the other issues that were discussed at today's hearing. He gave them a deadline of next Friday.

Price History

The case that was at the crux of today's hearing began 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, now-retired Madison County Judge Nicholas 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 statute 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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