Steve Korris Sep. 5, 2013, 8:42am


MOUNT VERNON – Cigarette maker Philip Morris announces itself ready to repeat a Madison County trial that ended with a $10 billion judgment, 10 years ago.

Philip Morris sprang the idea in a brief opposing a bid by St. Louis lawyer Stephen Tillery to win back the judgment that the Illinois Supreme Court took away in 2005.

In 2003, Tillery had persuaded Circuit Judge Nicholas Byron to award damages to Sharon Price and other buyers of cigarettes that Philip Morris labeled as light or low tar.

Four of six Justices ruled that the Federal Trade Commission authorized the labels.

Tillery has pleaded for years that new evidence proves the commission didn’t authorize them.

Circuit Judge Dennis Ruth accepted the new evidence but found Tillery couldn’t prove that the Justices wouldn’t have reversed Byron on other grounds.

Tillery appealed to the Fifth District appellate court.

There, Philip Morris pleads that it too has new evidence.

On Aug. 22, Michele Odorizzi of Chicago wrote that researchers have studied smoking behavior, beliefs and motivations for buying lights.

“That new evidence casts further doubt on Judge Byron’s conclusions that all members of the class always believed that lights were less hazardous than full flavored cigarettes and that no one ever received lower tar and nicotine from smoking lights,” she wrote.

“Given this new evidence, even if this court were to decide that plaintiffs’ petition should have been granted and the Supreme Court were to conclude that its 2005 decision should be vacated, the next step would not be reinstatement of the $10.1 billion judgment, but rather a new trial in light of all of the new evidence,” she wrote.

Odorizzi disputed Tillery’s view that the Justices would have affirmed Byron if they had known regulators didn’t authorize the labels.

“The Court did not definitively decide any other issue raised on appeal,” she wrote. “However, Justice Karmeier, joined by Justice Fitzgerald, filed a concurring opinion explaining that he would have reached the same result for the ‘additional and more basic reason’ that plaintiffs had failed to prove that they had suffered any economic loss because of their purchases of lights.

“While not ruling on that ground, the majority opinion noted its ‘grave reservations about the novel approach to the calculation of damages that was offered by the plaintiffs and accepted by the circuit court.’

“That statement alone makes it impossible for plaintiffs to carry their burden of showing that it is more likely than not that they would have prevailed on appeal had the Supreme Court reached the issue of injury and damages.”

Odorizzi wrote that the majority explained numerous reservations about Byron’s decision to certify a class under Illinois consumer fraud law.

She noted that Justices Garman and Mary Ann McMorrow, who joined the majority, both joined the majority that reversed Avery v. State Farm, a $1 billion class action.

“Subsequent decisions by the Supreme Court have reiterated that in a class case brought under Illinois Consumer Fraud Act plaintiffs must prove that each and every consumer who seeks redress actually saw and was deceived by the statements in question,” Odorizzi wrote.

The brief further states that 10 courts since Price have rejected light cigarette class actions under state consumer laws in light of the variability of knowledge, belief and behavior.

Odorizzi wrote that the Federal Trade Commission did not criticize the Price decision.

She wrote that an amicus brief that the commission filed in another case was counsel’s argument and not new evidence as Tillery claims.

“Neither the circuit court nor this court has the power to review the Illinois Supreme Court’s interpretation of the law or its application to the facts set forth at length in Price,” she wrote.

“For a number of reasons, this court could not properly order reinstatement of the 2003 judgment even if it were to reverse the judgment below.”

Tillery’s appeal brief argues that Ruth “engaged in rank speculation to predict what the outcome of the appeal would have been with respect to an issue left unresolved by the Supreme Court.”

“The circuit court should have granted plaintiffs’ petition and reinstated that court’s 2003 judgment in favor of plaintiffs and the class,” Tillery states.

“Philip Morris could then have raised in the appellate process any of the appellate issues that remained unresolved in the wake of the Supreme Court’s 2005 decision.

“The original judgment in Philip Morris’s favor was entered only because Philip Morris, through its mischaracterization of the historical record and its use of testimony now known to be false, convinced at least two members of the Supreme Court that the FTC had implicitly authorized use of the light and low tar descriptors and had required the disclosure of tar and nicotine yields.

“In fact, as is now known beyond all legitimate dispute, the FTC did neither, implicitly or otherwise.”

Tillery will reply to Odorizzi’s brief in October, and oral argument will follow.

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