The Madison County Record Nov. 4, 2015, 2:53pm


SPRINGFIELD – Fifth District appellate judges placed themselves above the Illinois Supreme Court when they reinstated a $10 billion Madison County judgment against cigarette maker Philip Morris, the Supreme Court ruled on Nov. 4.

The high court ruled 4-2 to overturn the Fifth District, but Justices did not shut down the 15 year old action. Instead, they invited a direct petition to recall a mandate they issued in favor of Philip Morris in 2006.

“Under the hierarchical judicial system created by our Constitution, this court alone can overrule and modify its previous opinion,” Justice Anne Burke wrote.

She wrote that the original judgment could only be reinstated if the appellate court effectively vacated the Supreme Court’s judgment.

“The appellate court therefore attempted to act as a superior court to this one,” Burke wrote. “This is plainly incorrect.”

Chief Justice Rita Garman concurred, as did Justices Lloyd Karmeier and Mary Jane Theis.

Dissenters Charles Freeman and Thomas Kilbride argued that Illinois circuit judges should correct errors of higher courts.

“A party who receives a judgment in his or her favor should not have that judgment taken away based on a reviewing court’s misapprehension of the law or facts,” Freeman wrote.

He wrote that a court’s jurisdiction depends on “the necessities of mankind and the great principles of natural justice.”

He wrote that in the context of a recognized health epidemic, Philip Morris’s conduct was appalling.

St. Louis lawyer Stephen Tillery, who toiled for seven years to bring the action back to the Supreme Court, must now start fresh there.

Philip Morris reacted positively to the decision.

“Today’s action by the Illinois Supreme Court effectively wipes away the last seven years of court proceedings and requires the plaintiffs to start from scratch,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of PM USA.

“The court held that the plaintiffs filed the wrong motion in the wrong court. Now to succeed, plaintiffs would have to file a new motion in the Illinois Supreme Court and convince at least four justices to recall their own order, which dismissed the case 10 years ago.”

Tillery sued Philip Morris in 2000, claiming it deceived smokers into expecting health benefits from cigarettes with light and low tar labels.

Former circuit judge Nicholas Byron certified plaintiff Sharon Price to lead a class action for millions of smokers over 30 years.

Philip Morris asked for a jury trial, and Byron denied it.

At a bench trial, Tillery produced a survey showing how much less smokers would have paid for light and low tar cigarettes if Philip Morris hadn’t deceived them.

Byron adopted Tillery’s calculation of damages, added punitive damages, totaling $10.1 billion, and awarded $1.8 billion to Tillery and various causes they deemed worthy.

Philip Morris petitioned the Supreme Court for direct review, rather than take its case to the Fifth District in Mount Vernon.

The Justices denied direct review, but then changed their minds and granted it.

They reversed Byron in 2005, finding federal law preempted Illinois consumer law because the Federal Trade Commission authorized light and low tar labels.

By deciding the case on preemption, they did not need to address challenges to the class certification and the damages.

Still, they added an expression of reservations about the class and the damages.

Tillery petitioned for reconsideration, and the Justices denied it.

He petitioned the U.S. Supreme Court for review, and the Justices denied it.

In 2006, the Illinois Supreme Court issued Byron a mandate to dismiss the action.

He complied on Dec. 18, 2006.

On that date two years later, Tillery asked Byron’s successor, circuit judge Dennis Ruth, to reopen the case in light of new evidence.

He pleaded that in a separate case, the Federal Trade Commission stated that it never authorized light and low tar labels.

Ruth dismissed the petition under a statute of limitations, and dismissed it on other grounds after the Fifth District reversed him on the statute of limitations.

Fifth District judges Melissa Chapman, Bruce Stewart and S. Gene Schwarm then reinstated Byron’s judgment.

They found the Supreme Court would have ruled against Philip Morris if the Justices had known the true position of the Federal Trade Commission.

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Organizations in this Story

Korein Tillery
10 Executive Woods Court
Belleville, IL 62226

Illinois Supreme Court
200 E Capitol Ave
Springfield, IL 62701

Madison County Circuit Court
157 N Main St
Edwardsville, IL 62025

Illinois Fifth District Appellate Court
S 14th St
Mt Vernon, IL 62864

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