Attorney Stephen Tillery argues that facts that led to the dismissal of his $10.1 billion claim against Philip Morris over "light" cigarette labeling have been proven false and that, therefore, his petition for relief must be granted.
Tillery responded to the tobacco company's opposition to re-opening the case in a brief filed April 10.
The matter is now before Circuit Judge Dennis Ruth who has set a May 22 hearing on Tillery's petition for relief from the Illinois Supreme Court's dismissal of Price v. Philip Morris in 2005.
The "facts were false," Tillery stated.
In his brief, Tillery argues that the Illinois Supreme Court had each relevant fact it considered wrong because Philip Morris presented the court with inaccurate facts about descriptors allowed by the Federal Trade Commission (FTC).
Tillery states that whether Philip Morris' conduct was authorized under section 10b(1) is a question of the law, and whether the FTC permitted Philip Morris to use descriptors is a question of fact.
"The answer to this question of law turns on the answer to this question of fact," Tillery states. "But that does not transform the question of fact into the question of law."
According to Tillery's petition, the FTC never had a policy permitting descriptors, never allowed low tar descriptors or the use of descriptors through consent orders.
"Just the opposite of those facts are what Justice Garman applied to section 10b(1) in the opinion dismissing the Plaintiffs' claims," Tillery states.
Philip Morris has until April 19 to respond to Tillery's reply.
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.