MADISON - ST. CLAIR RECORD

A decade-old lawsuit over cigarette labeling that put Madison County on the map has once again made its way before the Illinois Supreme Court.

Philip Morris USA Inc. late last week filed a motion asking the justices to transfer the plaintiffs’ Jan. 8 notice of appeal to the Fifth District Appellate Court directly to the state high court “on the ground that the public interest requires prompt adjudication of that appeal by this Court.”

The tobacco company’s motion was listed on the court’s civil docket for Wednesday. The justices will likely consider the request during one of their closed-door sessions of the January term, which comes to a close at the end of this week.

It also marks at least the third time the Supreme Court has been asked to weigh in on the case, which focuses on “light” and “lowered tar and nicotine” cigarette labeling and is believed to be the nation’s first consumer fraud suit against a tobacco company.

Attorneys representing the plaintiffs in the 2000 class action lawsuit filed the notice of appeal about a month after Madison County Circuit Judge Dennis Ruth denied their petition seeking relief from the Supreme Court’s dismissal of the $10.1 billion verdict in Price v. Philip Morris.

The plaintiffs, in their notice, asked the Fifth District to reverse and set aside Ruth’s Dec. 12 ruling, remand the case to the circuit court and enter and award relief it deems just and appropriate.

In its motion to the Supreme Court, Philip Morris asserts that its “review is warranted once again in light of what the circuit court aptly characterized as the ‘unique procedural posture of this case.’”

The “unique procedural posture,” according to the tobacco company, stems from the Section 2-1401 petition the plaintiffs filed in 2008.

It sought relief from the court’s dismissal of the multi-billion dollar verdict that now-retired Circuit Judge Nicholas Byron entered against Philip Morris in 2003.

The court in 2005 determined that Philip Morris couldn’t be held liable under the state’s Consumer Fraud Act for using the “light” and “low tar” terms because the Federal Trade Commission permitted them and as such, ordered Byron to dismiss the case.

The plaintiffs claimed in their petition that the Supreme Court justices would have ruled otherwise had they been aware of subsequent events and not relied on “factually inaccurate” information to reach its 4-2 ruling in favor of Philip Morris.

On behalf of the plaintiffs, Stephen Tillery argued at an August hearing over the Section 2-1401 petition that post-Price statements made by the FTC, as well as the 2008 U.S. Supreme Court opinion in Good v. Altria Group, constituted “newly-discovered evidence” that warranted relief.

The FTC came out in 2008 to say that it did not have a formal policy allowing “light” and “lowered tar and nicotine” labeling, a statement that Tillery told Ruth contradicts testimony from a witness in the 2003 trial that it did.

Philip Morris argued at that same hearing that relief couldn’t be granted because the evidence the plaintiffs were attempting to rely on occurred two years after the judgment was handed down in Price v. Philip Morris.

In denying the petition, Ruth wrote in his December ruling that “Plaintiffs have failed to show it is more probably true than not that the Illinois Supreme Court would not have ruled in Defendant’s favor.”

The plaintiffs argued that Ruth could reinstate the previous judgment while Philip Morris asserted he could only set aside the circuit court’s 2006 order dismissing the case, not the Supreme Court’s 2005 order that overturned the $10.1 billion verdict.

In urging the Supreme Court to handle the appeal directly, Philip Morris asserts that “only this Court can say whether in fact the 2008 statements plaintiffs rely upon would have made any difference to the outcome of the earlier Price appeal. Moreover, only this Court has the power to make that determination.”

The tobacco company further argues in its motion that “[t]here is no reason to postpone review by this Court,” noting that “[t]his case is the largest and, at this point, undoubtedly one of the longest-running civil cases in Illinois history.”

In addition to being able to put an end to the decade-old case, Philip Morris contends in its motion that high court review could provide guidance on important issues regarding Section 2-1401 petitions.

Those questions, the motion states, include whether the plaintiffs filed their petition in a timely manner and if they can even seek relief under Section 2-1401 since it was based on events and statements that occurred after the judgment was handed down.

“These legal issues are crucial to the proper functioning of the judicial system in Illinois,” Philip Morris asserts in its motion. “Both litigants and the courts need to know when and under what circumstances settled judgments can be challenged through the filing of a section 2-1401 petition.”

Philip Morris’ motion was submitted by Larry Hepler of HeplerBroom in Edwardsville and Chicago attorneys Michele Ordorizzi of Mayer Brown, George Lombardi and James Thompson of Winston & Strawn and Kevin Forde.

The plaintiffs’ notice of appeal was submitted by Tillery, Robert King, George Zelcs, Maximilian Gibbons and Matthew Davies, all of Korein Tillery, as well as South Carolina attorneys Michael Brickman and Nina Hunter Fields.

Price history
The case that has been bouncing between the state's courts over the past decade began in 2000, when Tillery filed a lawsuit on behalf of Sharon Price.

The suit claimed that the tobacco company deceptively promoted health benefits of “light” and “lowered tar and nicotine” cigarettes.

Following a bench trial in Madison County, Bryon in 2003 awarded plaintiffs damages in the amount of $10.1 billion, which included about $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 him to unsuccessfully seek review from the U.S. Supreme Court.

At the direction of the Illinois Supreme Court, 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 Section 2-1401 petition based on 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 the Fifth District Appellate Court determined that the statute of limitations applied and  remanded the case back to Ruth on the question of facts.

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, Justice Rita Garman dissented from the court’s 2011 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.”

“The parties deserve an answer sooner rather than later and the instant petition for leave to appeal is the proper procedural mechanism for us to provide that answer,” Garman wrote.