Tillery seeks Karmeier's recusal or disqualification in $10 billion tobacco case

By The Madison County Record | Jun 5, 2014


Plaintiffs facing Illinois Supreme Court review of their $10 billion judgment against cigarette maker Philip Morris call on Justice Lloyd Karmeier to recuse himself.

“If Justice Karmeier does not recuse himself, then the Court should disqualify him,” attorney Stephen Tillery of St. Louis wrote on May 28.

He wrote that there is an objective and reasonable public perception of bias.
Philip Morris seeks review of a Fifth District appellate court decision reinstating a judgment that former Madison County judge Nicholas Byron entered in 2003.

The Fifth District held that Tillery presented new evidence that would have changed the decision the Illinois Supreme Court reached in 2005.

The evidence consists of an opinion the Federal Trade Commission issued in 2008, three years after the Court reached its decision.

Tillery convinced Fifth District judges that it proves the Illinois Supreme Court made a mistake when it held that the commission authorized labeling of light and low tar cigarettes.

Byron had held that the labels constituted fraud on buyers expecting health benefits.
On May 12, Philip Morris petitioned the Supreme Court for leave to appeal or for a more drastic supervisory order against the Fifth District.

“Only this Court can overrule its own decisions,” Michele Odorizzi of Chicago wrote in the motion for supervisory order.

“The Fifth District’s decision below threatens the stability of the law,” she wrote.
Former Gov. Jim Thompson also worked on the appeal.

Odorizzi wrote that in 2005, when the Illinois Supreme Court reversed the judgment, it described five independent grounds on which Philip Morris sought reversal.

She wrote that the Court did not pass upon them all because Philip Morris prevailed under immunity for actions specifically authorized under statutory authority.

“The Fifth District did not mention Price’s lengthy and detailed concerns about class certification," Odorizzi wrote. "That omission was a fundamental error."

She wrote that the Fifth District made another critical error when it dismissed as speculative the Price decision’s reservations about Tillery’s theory of damages.

“This case began in 2000," she wrote. "Price was decided in 2005.

“Plaintiffs chose to litigate this case on the undisputed record without seeking the FTC’s views."

She wrote that FTC’s position “exists only when the commission endorses it, and endures only as long as a majority of commissioners wishes to express it.

“To conclude that something as metaphysical as the FTC’s present characterizations of its past regulatory history disproves this court’s 2005 interpretation of the same regulatory history would license federal agencies to overrule this state’s decisions.

“This Court should not subject final judgments to upheaval depending upon which faction in a federal agency prevails on the agency’s official view at any future point.”

The Justices rarely grant supervisory orders, but they have granted two to Philip Morris.
In 2003, they vacated a Fifth District order requiring Philip Morris to post a $12 billion bond before it could appeal Byron’s judgment.

The Illinois Supreme Court then granted direct appeal, completely cutting the Fifth District out.

In 2007, Justices ordered Byron to dismiss a motion that would have reopened the case, and ordered him to vacate an order certifying the question to the Fifth District.

In Odorizzi’s petition for leave to appeal, she called the Fifth District decision “a stunning abrogation of basic legal principles that underpin this state’s judicial system.”

She wrote that the FTC never suggested the Price decision was wrong.

She wrote that before reinstating a massive judgment, the Illinois Supreme Court should decide whether the class was properly certified to begin with.

While Tillery prepared a response, he set about chasing Karmeier off the case.

“A year after campaign contributions from Philip Morris and its supporters helped elect him to the bench, Justice Karmeier cast the deciding vote that saved Philip Morris billions of dollars,” Tillery wrote.

His words “and its supporters,” cast a wide net.

Sources of the money he attributed to Philip Morris include the U.S. Chamber of Commerce, state and local Chambers, Illinois Civil Justice League, and Justpac.

(The U.S. Chamber of Commerce Institute for Legal Reform owns the Record newspaper).

Tillery wrote that Ed Murnane of the Illinois Civil Justice League directed and managed Karmeier’s campaign, and served as treasurer of American Tort Reform Association.

He blamed the same groups and persons that plaintiffs in a class action against State Farm blame in their bid to restore a billion dollar judgment they lost in 2005.

Each contribution now does double duty, satisfying both conspiracy theories.

In the State Farm case, pending before Chief U.S. District Judge David Herndon in East St. Louis, plaintiffs served subpoenas on Karmeier and told him they plan to depose him.

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