When St. Louis attorney Stephen Tillery made the argument earlier this month that Philip Morris had admitted the facts alleged in his latest petition by not filing a formal answer, attorneys for the tobacco giant claimed the two parties had reached an agreement to do so.

Tillery, who represents the plaintiffs in the decade-old class action suit over cigarette labeling that he is seeking to reignite, told Madison County Circuit Judge Dennis Ruth that he did not recall such an agreement and assumed it was just part of Philip Morris' legal strategy.

Stressing the need to keep the record straight as his ruling will likely be appealed, Ruth granted Philip Morris' oral motion for leave to file a formal answer.

He also asked the attorneys to take a look at their emails and let him know if there was any record of such an agreement.

Two days later, Philip Morris filed its proposed answer to Tillery's petition seeking relief from the dismissal of the $10.1 billion verdict entered in 2003 over claims that Philip Morris misled its customers through its use of "light" and "low tar" cigarette labeling.

In an attempt to show the judge that Tillery agreed to let Philip Morris file an opposition to his petition with all of its factual and legal arguments instead of dealing with the issues separately, the company included a string of emails between the two legal teams.

In a Feb. 2 email to Tillery, Larry Hepler, one of the attorneys representing the tobacco company, wrote "As you know, the Appellate Court refused to reach grounds we had advanced for our motion to dismiss the petition other than timeliness and said that Judge Ruth should consider those grounds on remand."

Hepler, an Edwardsville attorney, continued, "Given all of the time that's passed, we think that the most efficient way to proceed would be for us to withdraw our motion to dismiss and to file an opposition to your petition that includes all of our legal and factual arguments against it- to avoid, as you say, dealing with the issues piecemeal."

"I think it makes the most sense, let me know what you think," Hepler added.

Tillery wrote back, "Just so I am clear, are you suggesting withdrawing and then re-filing your motion to dismiss or simply filing your factual and legal response to the petition so we do everything in one hearing?"

Hepler responded to Tillery's question with a proposed schedule that noted Philip Morris would file a brief with all of its factual and legal responses to the petition, Tillery would respond to its brief within 30 days and Philip Morris would file a reply within 21 days.

After that, Hepler wrote, one hearing would be held for Ruth to hear arguments over the petition.

In an email sent to Hepler, Tillery wrote that since the only remaining basis for Philip Morris' motion to dismiss is whether the plaintiffs have sufficient basis for relief under Section 2-1401 of the Civil Code of Procedure, "it appears we could do all of this in one hearing."

Tillery added, "In other words, you would file your factual and legal response to the petition and we would then proceed with one hearing before the court ...If this is what you are suggesting doing, I think we can work something out."

After a few more email exchanges between the two, Tillery wrote "We can do a deal" and then proposed specific dates for the parties to file their responses and replies.

Hepler responded with another proposed schedule that would give both sides more time to file their responses and replies. Tillery wrote back, "This will work."

Although the issue over the lack of a formal answer to Tillery's petition was just one of several issues discussed at the lengthy Aug. 21 hearing, it became a rather contentious one.

Chicago attorney George Lombardi, who argued on behalf of the tobacco company at the hearing, claimed that Tillery didn't bring up the issue until the hearing, a move he said amounted to "gamesmanship."

Tillery told Ruth that the state high court's 2007 ruling in People v. Vincent states that if a respondent doesn't answer a petition, it constitutes an admission of the facts.

In its proposed answer filed on Aug. 23, Philip Morris asserts the court in Vincent based its decision not only on the state's failure to file an answer, but the fact that it did not offer any response to the prisoner's Section 2-1401 petition.

"But nothing in that or any other case suggests that the procedure the parties agreed to here ... is somehow insufficient, in the absence of a point-by-point answer, to preserve the respondent's right to contest what the plaintiffs claim were factual allegations," Philip Morris argued.

The tobacco company then offered a point-by-point answer to all of the claims alleged in the plaintiffs' petition. It noted that it did not offer any new arguments and as such, granting the company's request to file the answer would not prejudice Tillery's clients.

Ruth noted at the Aug. 21 hearing that just because he granted Philip Morris' oral motion for leave to file an answer did not mean he would approve it.

It is unclear when he will rule on the matter or the petition seeking relief from the dismissal of the verdict.

Price History

In 2000, Tillery filed a lawsuit against Philip Morris on behalf of Sharon Price, claiming that the tobacco company deceptively promoted health benefits of light and low tar cigarettes.

It didn't make claims for personal injury, but rather sought the difference between what smokers paid for cigarettes and what they would have paid if Philip Morris hadn't deceived them.

Following a bench trial in Madison County, now-retired Madison County Judge Nicholas Bryon in 2003 awarded plaintiffs damages in the amount of $10.1 billion, which included $1.8 billion in attorney's fees.

After the Illinois Supreme Court ordered Byron to dismiss the case in 2005, Tillery requested a rehearing. The justices denied his request, spurring Tillery to seek review from the U.S. Supreme Court, which denied it.

Following the Illinois Supreme Court's order, Byron dismissed the case in 2006. Two years later, Tillery sought relief from the dismissal in Madison County Circuit Court.

Philip Morris moved to dismiss the petition under the statute of limitations, as well as for failing to allege a basis for relief.

Ruth, who had inherited the case from Byron when he retired, ruled in favor of the tobacco company, saying that the statute of limitations to file the petition had expired.

Tillery appealed and like Ruth, the Fifth District Appellate Court determined that the statute of limitations applied and did not address the tobacco company's claim that the plaintiffs failed to allege a basis for relief.

The appeals panel remanded the case back to Ruth on the question of

Philip Morris appealed to the Illinois Supreme Court, which refused to disturb the appellate court ruling last September.

Although she wrote the majority opinion for the court in 2005, Garman dissented from the court's decision to deny the tobacco company's petition for leave to appeal.

She said her colleagues should have granted Philip Morris' petition "because it will inevitably reach us in the normal course of this litigation."

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