Tobacco Appeal on tap

by Jeff Gelber |
Nov. 5, 2004, 8:18am

Joseph Power

Gov. Jim Thompson

Madison County justice goes on trial this week.

The Illinois Supreme Court will hear oral arguments Wednesday in Phillp Morris' appeal of the now infamous $10.1 billion Price verdict, issued by Judge Nicholas Byron in April 2003.

The class action case, brought by St. Louis plaintiff's attorney Stephen Tillery on behalf of one million Illinois' light cigarette smokers, asserted that Philip Morris was "deceptive" in its advertising.

Citing the Illinois Deceptive Practices Act, Price was the first consumer fraud case trial in U.S. history focused upon light cigarettes.

Philip Morris appealed, maintaining that its labeling and marketing efforts are regulated and approved by the federal government. Federal law supersedes Illinois state law.

"The class says that they were either mislead or deceived, yet that label also had a health warning on it," said William S. Ohlemeyer, a Philip Morris vice president.

Judge Byron's verdict in the Price case included some $7 billion in compensatory damages and $3 billion in punitive. All damages were economic; none of the plaintiffs claimed that smoking injured them personally.

Chicago-based attorneys Stephen Swedlow of Swedlow & King and Joseph Power of Power Rogers & Smith are expected to team up to make Tillery's case before the Supreme Court.

Former Illinois Governor Jim Thompson of Chicago-based Winston & Strawn will represent Philip Morris, arguing, among other things, that this case should never have been certified in the first place.

"At the end of the day, these are cases that focus on individual issues, " said Ohlemeyer.

Perhaps the most controversial aspect of price was attorney fees. Byron's verdict included $1.77 billion in legal fees for Tillery and his associates, attracting criticism by legal scholars across the U.S.

"In Madison County, the judges have never found a proposed class action they would not certify, " said Lester Brickman, a professor at the Benjamin Cardozo School of Law in New York. "Indeed, the 'team' of Tillery and Judge Byron have perfected the technique of extracting big money through use of consumer fraud statutes. Theirs is the greatest money-making scheme ever devised since King Midas turned dross into gold."

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