MADISON - ST. CLAIR RECORD

The Illinois Supreme Court on Friday denied Philip Morris’ request for direct appeal in the decade-old Madison County case over cigarette labeling.

The tobacco company last month asked 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.”

On behalf of the plaintiffs in the 2000 class action lawsuit, St. Louis attorney Stephen Tillery filed notice of appeal over Madison County Circuit Judge Dennis Ruth’s Dec. 12 decision that denied his petition seeking relief from the Supreme Court’s dismissal of the $10.1 billion verdict in Price v. Philip Morris.

In its order, which notes that Justice Robert Thomas took no part in the decision, the Supreme Court did not explain its reasoning for denying Philip Morris’ motion.

The tobacco company’s request for direct appeal marked at least the third time the Supreme Court has been asked to weigh in on the suit, which Tillery filed more than a decade ago in Madison County on behalf of Sharon Price.

Believed to be the nation’s first consumer fraud suit against a tobacco company, the suit accused Philip Morris of deceptively promoting health benefits of “light” and “lowered tar and nicotine” cigarettes.

Following a bench trial, now-retired Circuit Judge Nicholas Byron in 2003 awarded the plaintiffs damages in the amount of $10.1 billion, of which about $1.8 billion was earmarked for attorneys’ fees.

The Supreme Court in 2005 ordered Byron to dismiss the case, determining that Philip Morris couldn’t be held liable under the state’s Consumer Fraud Act for using “light” and "lowered tar and nicotine” terms because the Federal Trade Commission permitted them.

Byron dismissed the case in 2006 and two years later, the plaintiffs sought relief from the dismissal in Madison County Circuit Court.

In their Section 2-1401 petition, the plaintiffs claimed that the Supreme Court justices would have ruled differently 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.

Philip Morris moved to dismiss the 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, holding that the statute of limitations to file the petition had expired.

The plaintiffs 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 then appealed to the Illinois Supreme Court, which refused to disturb the appellate court ruling last September.

At an August 2012 hearing over the petition, Tillery told Ruth 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 in 2008 said 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.

In denying the plaintiffs’ Section 2-1401 motion, Ruth wrote in his order 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.”

It was not immediately clear when, or if, the Fifth District Appellate Court would hear arguments or review the plaintiffs’ appeal over Ruth’s ruling.