Lawyers for Philip Morris say that plaintiffs' arguments for reinstating a landmark $10.1 billion judgment arising out of a Madison County court have not come close to showing and "cannot show" they meet any of the requirements for relief.
The tobacco company filed its response to attorney Stephen Tillery's petition seeking relief from the Illinois Supreme Court's reversal of Price v. Philip Morris, a lawsuit brought on consumer fraud claims over "Light" cigarette labeling.
The case is now before Circuit Judge Dennis Ruth who has set a May 22 on Tillery's petition involving the Supreme Court's 2005 decision.
Edwardsville attorney Larry Hepler and Chicago attorneys George Lombardi and Michele Odorizzi of Chicago wrote for Philip Morris that only the Illinois Supreme Court has the power to decide whether the plaintiffs are entitled to relief from the Supreme Court's own ruling reversing former Circuit Judge Nicholas Byron's 2003 judgment.
"Because this Court (Madison County) has no authority to vacate the Supreme Court's ruling, it has no power to re-instate...," their brief states. "Instead, all this Court can do is review the evidence both sides submit and then decide whether plaintiffs have met their burden of demonstrating that they are entitled to relief from the judgment that was entered against them on remand by this Court."
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 claims that Justice Rita Garman, who wrote the majority opinion in the Price reversal, had relied on "factually inaccurate" information. He argues that the U.S. Solicitor General had abandoned a position that the Federal Trade Commission (FTC) approved light and low tar labels.
In the Illinois Supreme Court's 4-2 decision, Garman 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.
In Tillery's new petition, he also pleads that a decision from the U.S. Supreme Court (Good) proves that the Illinois Supreme Court made a mistake.
Even though the case appeared dead long ago, Tillery was given another opportunity to restore the verdict when the Illinois Supreme Court last September denied Philip Morris leave to appeal a Fifth District Appellate Court ruling on a statute of limitations issue.
Tillery now has until April 9 to respond to Philip Morris's brief; 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.
Tillery sued in 2000, on behalf of Sharon Price, claiming 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, 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.
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 – Dec. 18, 2006 - Tillery moved for relief from the order.
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.
PM's reply brief
Phillip Morris argues that Tillery cannot prove that the U.S. Supreme Court "Good" decision reached after the Price verdict would have changed the outcome of the Illinois Supreme Court's reversal of Price.
"The issue in Good was very different – whether the FTC's conduct and statements should be deemed a federal 'law' that trumps state laws under the Supremacy Clause," the lawyers wrote. "This implied preemption standard is much harder to meet than the Illinois standard for an exemption under the ICFA (Illinois Consumer Fraud Act)."
"Because the courts in Price and Good were applying very different legal standards, it is not surprising that they arrived at different legal conclusions in Price and in Good based on the same factual record.
"The FTC itself has recognized the distinction and has never said anything to suggest that Price was wrongly decided. On the contrary, in its amicus brief in Good, the FTC carefully avoided any suggestion that its position was at odds with Price..."
The tobacco company also argues, among other things, that the reversal of Price should not be disturbed because Philip Morris would have prevailed on other grounds even if it had lost on the exemption issue.
It also claims that Tillery's petition is untimely because it was filed more than two years after the Illinois Supreme Court issued its judgment.
"...[T]here are a number of cases holding that when a term of office or other period is for a stated number of years, the first day of the period should be counted, which means that the period expires on the day before the anniversary of the event in question...," Philip Morris argues.
"Applying these authorities here, plaintiffs' petition, which was filed on December 18, 2008, was one day late even if the triggering date was the date of the order on remand (December 18, 2006), rather than the date the Illinois Supreme Court issued its decision (December 15, 2005)."