Circuit Judge Nicholas Byron

Stephen Tillery

Madison County Circuit Judge Nicholas Byron has asked the Fifth District appellate court whether new evidence could give him jurisdiction to reopen a class action case against Philip Morris that he was ordered to dismiss last year.

The new evidence lies in a report of the U.S. Solicitor General, according to class action attorney Stephen Tillery of St. Louis.

At a hearing May 2, Tillery said the report proves that the Illinois Supreme Court made an error when it ordered Byron to dismiss the suit.

Byron entered a $10 billion judgment against Philip Morris in 2003, on behalf of three million smokers of light cigarettes.

He held that light labeling misled smokers about health risks.

The Illinois Supreme Court reversed him in 2005, holding that the Federal Trade Commission authorized light labeling.

The Court directed Byron to dismiss the suit.

Tillery asked the Court for rehearing. He did not get it.

He asked the U. S. Supreme Court for a hearing. He did not get it.

In December, Byron dismissed the suit.

Philip Morris sent someone to the courthouse to retrieve documents Byron had sealed, but Byron denied the release.

Philip Morris filed a motion to retrieve the documents.

Tillery moved in January to vacate the dismissal or set it aside.

He argued that the Solicitor General took a position that the Federal Trade Commission did not authorize light labeling.

At a hearing May 2, he told Byron the U. S. Supreme Court would adopt the Solicitor General's position in a June 25 decision.

He said the Illinois Supreme Court would then have to correct the error it made when it reversed his judgment.

Byron said he would certify a question to the Fifth District. He told Tillery to write the question.

Tillery wrote three questions. Byron certified them in a May 9 order:

  • May a circuit court vacate or set aside a judgment, which the Illinois Supreme Court directed the court to enter, within 30 days of its entry based on the discovery of new evidence which was unavailable before the judgment was entered if the newly discovered evidence discloses an error of fact upon which the judgment was based?

  • May a circuit court vacate or set aside a judgment, which the Illinois Supreme Court directed the court to enter, if a subsequent United States Supreme Court decision makes plain that the basis for the judgment was erroneous?

  • May a circuit court hear and rule on a motion to return to a party documents filed under seal with the circuit court pursuant to a protective order after the court has entered judgment as directed by the Illinois Supreme Court?

    Byron wrote that immediate appeal "may materially advance the ultimate termination of this litigation."

    He wrote, "Should the Appellate Court refuse to hear such appeal, the parties may return to this court for any further proceedings and final disposition of this case."

    The next day, Jason Rankin of Edwardsville wrote for Philip Morris that Tillery's questions were "self-serving and result-oriented."

    Rankin wrote, "…the Solicitor General's brief on which plaintiffs rely is not new evidence; indeed, it is not evidence at all."

    He wrote that plaintiffs had no basis to certify a question about Philip Morris's motion to retrieve documents.

    He wrote that no Illinois court ever sanctioned a trial court's continuing jurisdiction after implementing a specific mandate to dismiss.

    He wrote that if plaintiffs were right, courts would always have jurisdiction to reconsider judgments entered at the direction of superior courts, as long as they asked within 30 days.

    He wrote, "Litigation would never end."

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