Ruth makes it clear that Philip Morris labeling case will not end with him

Bethany Krajelis Aug. 23, 2012, 7:40am




While Madison County Circuit Judge Dennis Ruth didn't immediately issue a ruling on a motion that has the potential to reignite the decade-old lawsuit over cigarette labeling, he did make a few things clear at Tuesday's hearing on the matter.

"Don't anyone assume I've made my mind up," he said.

Ruth delivered that statement shortly after he asked plaintiffs' lawyer Stephen Tillery why he didn't seek Philip Morris' take on whether it had a policy approving "light" and "low tar" labeling until after the Illinois Supreme Court ordered the dismissal of the case.

Tillery argued in his petition that the U.S. Supreme Court's 2008 opinion in Altria Group v. Good and statements made by the Federal Trade Commission (FTC) that same year constitutes "newly-discovered evidence" that could have affected the outcome of the case.

He told Ruth that the FTC statements prove that testimony given by a Philip Morris expert witness during the 2003 trial was factually inaccurate. He further argues that this witness' testimony was relied upon by Illinois Supreme Court Justice Rita Garman, who wrote the majority opinion for the court's 4-2 ruling that ordered the dismissal of the suit.

Although some might have taken Ruth's question to Tillery as a sign he would side with Philip Morris, Ruth also posed some tough questions to George Lombardi, the Chicago attorney who argued for the denial of the motion on behalf of the tobacco company at Tuesday's hearing, that made it seem like he thought Tillery had a solid argument.

There was a lot of back-and-forth between the attorneys and Ruth during the nearly eight-hour long hearing this week. The judge asked dozens of questions to both Tillery and Lombardi on various aspects of the pending motion, as well as on the case in general.

He stressed that he wanted to keep the record straight because "It is pretty clear this case is going to be appealed by somebody."

Regardless of how he rules on Tillery's motion, Ruth said he expects one of the parties will eventually ask the Illinois Supreme Court to weigh in on the matter. To bolster his belief, the judge pointed to Garman's dissent from the court's 2011 decision to deny the tobacco company's petition for leave to appeal.

Garman wrote in her dissent that 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."

Both Tillery and Lombardi agreed that if Ruth rules against them on the pending motion, they would appeal.

That aspect of the case, however, marked only one of a few things the attorneys agreed on during Tuesday's hearing.

The attorneys started out the hearing with what appeared to be friendly conversation and jokes. Before the hearing began, Tillery congratulated Lombardi on a recent victory and asked him if he was going to leave the "dark side" to do plaintiffs' work.

As the two legal teams worked out kinks in courtroom technology, Lombardi joked that he decided to use a power point presentation like Tillery because he didn't want to look like a Neanderthal.

But, after a few hours into the hearing, the two sides took a few jabs at each other's legal arguments and strategies. At times, they interrupted each other and asked for time to finish their points.

Ruth stopped the two attorneys during one heated moment to ask them to keep things as civil and remind them they had done so for the majority of the hearing.

One major point of contention between the two focused on Tillery's argument that Philip Morris had admitted the facts alleged in the petition by not filing a formal answer.

Lombardi explained to Ruth that his client filed a memorandum in opposition to Tillery's petition in an effort to streamline the process by combining his client's motions for summary judgment and dismissal into the memo.

Tillery, however, argued that the state high court's 2007 ruling in People v. Vincent shows that if a respondent doesn't answer a petition, it constitutes an admission of the facts.

Lombardi said Tillery did not bring this argument up in any of the briefings and as such, said his opponent's move amounts to "gamesmanship."

Ruth granted Lombardi's oral motion for leave to file a formal answer, but stressed that he did not yet know how it would rule on it.

The two attorneys also disagreed as what would happen if Ruth granted Tillery's petition.

Tillery claims that if the judge OK's the petition, it would move the case back to the 2003 order that awarded the plaintiffs a $10.1 billion verdict.

Lombardi, however, said trial courts can't overturn the Illinois Supreme Court.

If Ruth granted the petition, he said the case would simply go back to the most recent rulings on the matter, which came from the Illinois Supreme Court.

It was unclear when Ruth would issue a ruling on the pending petition.

He did give the attorneys until next Friday to provide him with information on issues discussed at the hearing.

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