Attorney Stephen Tillery is arguing that a judgment in favor of cigarette maker Philip Morris was "fundamentally flawed," because it was based on "false facts advanced by Philip Morris at every step in this litigation."
Madison County Circuit Judge Dennis Ruth has reset a hearing originally scheduled for Tuesday involving Tillery's petition for relief from the Illinois Supreme Court's dismissal of Price v. Philip Morris in 2005.
The hearing will be held Aug. 21 in the $10.1 billion "light" cigarette labeling judgment that was later overturned.
Tillery filed a brief in support of a first amended petition for relief from judgment on May 4.
According to Tillery, the FTC never allowed "low tar" descriptors, never had a policy of permitting descriptors, never required that Philip Morris disclose test measurements, never allowed the use of descriptors through consent orders and never intended for non-parties such as Philip Morris to take guidance from consent orders.
"Because Philip Morris falsely represented contrary 'facts' in the litigation and successfully convinced Justice Garman to rely on those false 'facts' to dismiss Plaintiff's claims, plaintiff's petition should be granted," Tillery wrote.
Philip Morris filed a defendant's reply in opposition to plaintiffs' first amended petition for relief from judgment on April 23.
"Litigation must come to an end, and the Illinois courts have thus imposed a heavy burden on litigants – like plaintiffs here – who seek to overturn a final judgment based on 'newly discovered evidence,'" according to the company's lawyers.
Philip Morris is represented by Larry Hepler and W. Jason Rankin of Hepler Broom in Edwardsville, Michele Odorizzi of Mayer Brown LLP in Chicago and George C. Lombardi of Winston & Strawn LLP in Chicago.
Rankin signed the brief.
Nothing the plaintiffs say can get them past the problem that the new "evidence" they rely on does not reveal any new facts since Price was decided, he wrote.
"No previously undisclosed FTC history concerning 'lights' descriptors has been revealed, nor has any new document evidencing FTC action or inaction been unearthed that was previously unknown either to plaintiff's or the Illinois Supreme Court," he wrote. "To the contrary, the historical record remains the same today as it was in 2005, when the Illinois Supreme Court issued its decision."
Philip Morris says it is erroneous for the plaintiffs to assert that Judge Ruth has power to grant its petition and reinstate the $10.1 billion judgment the Illinois Supreme Court reversed, because the Madison County courtlacks power to reverse the Illinois Supreme Court's decision.
Tillery responded to the tobacco company's opposition to re-opening the case in a brief filed April 10.
The "facts were false," Tillery stated.
In his brief, Tillery argues 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 is a question of the law, and whether the FTC permitted Philip Morris to use descriptors is a question of fact.
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.
Madison County Case number 00-L-112.