Stephen Tillery has appealed an order of Madison County Circuit Judge Dennis Ruth denying his bid to reinstate a $10 billion verdict against cigarette maker Philip Morris.
Ruth ruled Feb. 4 that he couldn't reopen Sharon Price v. Philip Morris because more than two years had passed since the Illinois Supreme Court reversed the verdict.
Tillery filed a notice of appeal on March 4.
Circuit clerks posted a line about the notice on the Price docket but as of March 9 they hadn't scanned the notice into public access terminals.
In 2003 Circuit Judge Nicholas Byron ruled that Philip Morris deceived three million smokers into believing "light" and "low tar" cigarettes reduced health hazards.
Byron awarded billions in economic damages under Illinois consumer fraud law, billions in interest, and nearly $2 billion for Tillery's legal team.
The Illinois Supreme Court overturned Byron in 2005, ruling that the Federal Trade Commission authorized light and low tar labeling.
The consumer fraud law bars claims over conduct regulators have authorized.
Tillery requested rehearing and didn't get it.
He sought review at the U.S. Supreme Court and didn't get it.
The Illinois Court ordered Byron to dismiss the suit, and he complied on Dec. 18, 2006.
A month later Tillery moved to reopen the case so the Justices at Springfield could read a brief in another case and admit they made a mistake.
Byron asked the Fifth District appeals court if he could reopen it.
Philip Morris retained former Gov. Jim Thompson, who obtained a Supreme Court supervisory order that halted the proceedings.
Again, Byron carried out an order to dismiss Price.
Byron retired last November and Ruth replaced him Dec. 3.
On Dec. 15, the U.S. Supreme Court decided that a federal judge in Maine could hear similar deception claims under Maine consumer law.
Three days later Tillery petitioned to vacate the judgment Byron entered in 2006.
State law allows two years to reopen a case on discovery of new facts, so Tillery would beat the deadline if Byron's action on Dec. 18, 2006, counted as final judgment.
Philip Morris answered that the Illinois Supreme Court executed final judgment in 2005 and Byron carried it out as a ministerial act.
At the hearing Tillery said he wasn't asking Ruth to overturn the Supreme Court.
He asked for an order that would allow the Supreme Court to see evidence.
He said Philip Morris denied, distorted and minimized health hazards for decades.
He said cigarettes cause one death in five in the United States.
Ruth said, "This claim is not for personal injury. It's for fraud?"
Tillery said, "It is."
He said he introduced the evidence to emphasize the gravity of the fraud.
He asked Ruth to vacate the order of 2006.
Ruth said, "But that's just the order directed by December 15, 2005."
Tillery said, "We can say the 2003 order was final for purposes of defining appeal rights."
He said, "We are in fact the masters of our own petition or motion."
Philip Morris lawyer George Lombardi of Chicago said, "Every time they have made this argument they have failed."
He said the new U.S. Supreme Court decision, Good v. Altria, looked at the same facts as Price under different laws.
Lombardi said the U.S. Supreme Court had an opportunity to take Price and didn't take it.
He said while Good was being briefed, the U.S. Solicitor General addressed Price and found it was not relevant.
"Would Good compel a change in Price?," Lombardi said. "It would not."
Ruth asked Tillery if the U.S. Supreme Court declined to hear the case.
Tillery said, "It is my obligation as class counsel to do everything I can to advance the interests of the class."