Attorney Stephen Tillery argues that Illinois Supreme Court Justice Rita Garman relied on inaccurate information when she voted to reject a multi-billion dollar Madison County bench verdict over "light" cigarette labeling.
While the case seemed dead long ago, Tillery was given another shot at restoring Price v. Philip Morris after the high court last September refused to hear an appeal by the tobacco company that could have ended it, again. Philip Morris was denied leave to appeal a Fifth District Appellate Court ruling on a statute of limitations issue.
It's now before Madison County Circuit Judge Dennis Ruth who has set a May 22 on Tillery's petition for relief of the Illinois Supreme Court's 2005 reversal.
In 2008, Tillery moved to vacate the reversal, claiming the U.S. Solicitor General had abandoned a position that the Federal Trade Commission (FTC) approved light and low tar labels.
In his petition for relief from judgment filed Feb. 15, Tillery wrote that Garman relied on testimony of Philip Morris expert witness Dr. John Peterman that was "factually inaccurate."
Garman was in the 4-2 majority of justices who voted to overturn the Price verdict. She held that the FTC specifically authorized Philip Morris to use terms "light" and "lowered tar and nicotine" to describe cigarettes and that Philip Morris's conduct was not actionable under the Illinois Consumer Fraud Act.
Tillery claims that facts contained in his current petition were not known or available at the time of the reversal, "and if known, they would have prevented its entry."
He states that, "Justice Garman relied on Dr. Peterman's testimony that the FTC permitted and authorized 'Light' cigarette descriptors."
"As the FTC has now directly contradicted Philip Morris' interpretation of the record and Dr. Peterman's testimony, upon which Justice Garman's opinion was based, this Court should grant Plaintiff's relief from the final judgment," Tillery wrote.
Philip Morris has until March 15 to respond to Tillery's petition, according to a recent order entered by Ruth.
Ruth further established that Tillery could respond to Philip Morris by April 9; Philip Morris could then respond to plaintiff's reply by April 19.
A final brief in response to defendant's reply is due on or before April 29.
Huge fees at stake
Tillery sued in 2000, on behalf of Sharon Price, claming Philip Morris deceptively promoted health benefits of light and low tar cigarettes.
He claimed no personal injuries but sought the difference between what smokers paid for cigarettes and what they would have paid if Philip Morris hadn't deceived them.
In 2003, after a bench trial, Circuit Judge Nicholas Byron awarded compensatory damages, punitive damages, and legal fees of $10.1 billion.
Of that figure, Byron set aside $1.8 billion in attorney's fees.
Byron retired in December 2008.
After the Illinois Supreme Court ordered Byron to dismiss the case in 2005, 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.
When the Illinois Supreme Court refused to hear Philip Morris's appeal last September, Garman dissented, writing that justices unwisely postponed their day of decision.
She wrote that the court should have allowed Philip Morris's petition for leave to appeal "because it will inevitably reach us in the normal course of this litigation."