Tillery given fresh start on $10 billion tobacco class action

By Steve Korris | Feb 28, 2011



MOUNT VERNON – Fifth District appeals judges granted Stephen Tillery a fresh start on his $10 billion class action against cigarette maker Philip Morris on Feb. 24.

Presiding Judge Melissa Chapman and Justices Bruce Stewart and James Wexstten ruled that a two year limit didn't run out on Tillery's petition to reopen the case.

Chapman wrote that "we do not believe that the ends of justice would be served if trial courts were unable to grant relief under the unusual circumstances presented here."

Philip Morris claimed the two years started running when the Illinois Supreme Court reversed former circuit judge Nicholas Byron's $10 billion judgment.

Tillery claimed the two years started running when Byron carried out the Supreme Court's order to dismiss the case.

Chapman wrote, "We find little guidance in answering the question before us."

She and her colleagues found a single case like it in an Illinois appellate court, and they reached a different result.

Chapman wrote that "this court is not obliged to follow the decisions of other districts of the appellate court."

Byron's successor, Circuit Judge Dennis Ruth, must now determine whether Tillery's petition alleges enough facts to require relief from the order dismissing the case.

Tillery sued Philip Morris in 2000, on behalf of Sharon Price, claiming it violated state consumer fraud law in marketing "light" and "low tar" cigarettes.

Philip Morris argued that its marketing qualified for exemption from state consumer law because the Federal Trade Commission authorized light and low tar labeling.

Philip Morris argued that it abided by terms of consent decrees that other cigarette makers signed in 1971 and 1995.

Byron certified a class of three million smokers, held a bench trial in 2003, and awarded every penny of damages Tillery claimed.

He wrote, "No regulatory body has ever required (or even specifically approved) the use of these terms by Philip Morris."

His judgment included $1.8 billion in fees for Tillery and his associates.

Philip Morris petitioned for direct appeal to the Supreme Court, where the Justices first denied it and then granted it.

On Dec. 15, 2005, the Justices ruled that state consumer law excluded the claim.

Tillery moved for rehearing, and the Justices denied it.

He petitioned for U.S. Supreme Court review, and the Justices in Washington denied it.

On Dec. 5, 2006, the Illinois Supreme Court issued a mandate to Byron.

On Dec. 18, 2006, Byron signed an order dismissing the case.

Two years later, to the day, Tillery moved for relief from the order.

He pleaded that a new decision from the U.S. Supreme Court proved that the Illinois Supreme Court made a mistake.

Philip Morris moved to dismiss the petition under the statute of limitations and for failure to allege a basis for relief.

Ruth held a hearing and ruled that the limit ran out, sparing himself a decision on whether Tillery alleged a basis for relief.

When Tillery appealed, Philip Morris called for the Fifth District to declare that he failed to allege a basis for relief.

The Fifth District decided the question of limitations and kicked the question of facts back to Ruth.

Chapman wrote that a party seeking relief from judgment must request that relief from a trial court, not an appeals court.

"Although this is stating the obvious, this simple fact defines the limits of what relief the trial court has the authority to provide," she wrote.

"The trial court obviously has no authority to vacate or set aside the supreme court's ruling in the case," she wrote.

"Thus, if it is to grant relief at all, it must grant relief from its own order – assuming that it finds a basis for granting that relief," she wrote.

"Just as the plaintiffs cannot challenge the dismissal order without also challenging the supreme court ruling, they cannot challenge the supreme court ruling without challenging the trial court's dismissal order," she wrote.

"Moreover, the supreme court chose to remand to the trial court with directions to dismiss rather than simply reversing outright and dismissing the action itself," she wrote.

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