MOUNT VERNON – Now that the Illinois Supreme Court has laid to rest Stephen Tillery's $10 billion class action against cigarette maker Philip Morris, Tillery can thaw out a similar suit against cigarette maker RJ Reynolds and start all over again.
The Fifth District appellate court issued a mandate Dec. 7, ending a four-year freeze on a Madison County class action against RJ Reynolds.
Tillery sued RJ Reynolds in 2000, claiming it deceived smokers into believing that light cigarettes provided health benefits in comparison to regular cigarettes.
He sought no damages for injuries. He sought the difference between what smokers paid for light cigarettes and what they would have paid if they had known the truth.
With the same claim against Philip Morris, Tillery won a $10 billion judgment from Circuit Judge Nicholas Byron in March 2003, on behalf of class representative Sharon Price and three million other smokers.
Philip Morris tried to skip over the Fifth District, petitioning the state Supreme Court in May 2003 to review the Price judgment on direct appeal.
In June 2003, the Supreme Court denied direct appeal of the Price judgment.
In July 2003, Circuit Judge George Moran set trial for RJ Reynolds with three weeks notice.
RJ Reynolds moved to stay the trial pending resolution of the Philip Morris appeal, arguing that the suits were identical.
Tillery opposed a stay, arguing that the suits were different.
He argued that his class would suffer from delay because financial deterioration of RJ Reynolds would make a judgment hard to collect.
He wrote that RJ Reynolds cut more than 600 jobs and broker Morgan Stanley downgraded its stock.
Moran denied a stay. He agreed with Tillery that the cases involved different parties, witnesses, cigarettes and factual bases.
"A stay for one or two years could clearly jeopardize Plaintiff's ability to collect on any judgment it might obtain in this case," Moran wrote.
RJ Reynolds appealed to the Fifth District, seeking to stop the trial.
In response, Tillery sought nothing less than to bankrupt RJ Reynolds before it bankrupted itself.
"Plaintiffs' prayer for damages in this case far exceeds RJR's cash on hand," he wrote.
"With every day that passes," he warned, "RJR's financial position deteriorates, as has been the situation for the last several years."
He predicted severe hardship and irreparable harm for his class and himself.
In an affidavit he swore he had accumulated more than $1 million in expenses.
In September 2003, the attitude of the Supreme Court suddenly changed.
Without explanation, on their own motion, the Justices reconsidered their decision to send the Price case down to the Fifth District.
The Justices granted direct appeal to Philip Morris.
The appellate court did not heed the signal. On Oct. 17, 2003, three Fifth District judges affirmed Moran and flashed a green light for Tillery.
They held that resolution of Price wouldn't inevitably resolve the RJ Reynolds case.
They wrote, "Additionally, defendants made no showing of the likelihood of a Price reversal on any grounds."
Even if RJ Reynolds showed such likelihood, the judges agreed, the company couldn't show that reversal was "a sufficient basis for an indefinite stay of an unrelated case."
They wrote that Tillery's class "should not be compelled to wait for the outcome of a case to which they are strangers."
Their decision stood for all of a week.
On Oct. 24, 2003, Justice Philip Rarick signed an emergency order to stop them from issuing a mandate to Moran to hold the trial.
Two weeks later the full Court directed the Fifth District to impose a stay on the trial.
In 2005, the Supreme Court overturned Byron's judgment.
Tillery moved for reconsideration and the Court denied it.
Tillery petitioned the U.S. Supreme Court for review and did not get it.
A year ago, Byron dismissed the Price suit in obedience to the state Supreme Court.
This year, Tillery moved to vacate Byron's order dismissing the suit.
Tillery insisted that a pending decision of the U. S. Supreme Court in another Philip Morris case would expose errors in the Illinois Supreme Court decision.
A decision came down from Washington but it changed no minds in Springfield. Again, the Illinois Supreme Court shut the case down.
Again, Byron had to sign an order in obedience to the Court.
Fifth District judges responded by reviving the RJ Reynolds appeal, long enough to declare it moot and dismiss it.
Justices Richard Goldenhersh, James Donovan and James Wexstten held that the stay on the RJ Reynolds trial expired when the Supreme Court decided Price.
Their decision bounces Tillery's claim back not to Moran, who retired last year, but to Circuit Judge Barbara Crowder.
As of Dec. 18, Crowder had not set a hearing or conference for Tillery.