Retired judge Nicholas Byron
SPRINGFIELD – Lawyer Stephen Tillery wants all Illinois Supreme Court Justices except Lloyd Karmeier to consider restoring a $10 billion judgment he won against cigarette maker Philip Morris in 2003.
On Nov. 17, Robert King of Tillery’s firm moved to recall a mandate the Court issued against the judgment in 2005.
King also moved for Karmeier’s recusal or disqualification, citing an objective and reasonable public perception of his bias in favor of Philip Morris.
He wrote that the perception is based on campaign contributions Karmeier received from Philip Morris and on statements he made to the press last year.
Karmeier denied a similar recusal motion last year, after Tillery’s bid to restore the judgment reached the Court from the Fifth District appellate court.
Those proceedings ended on Nov. 4, when the Justices told Tillery he should have brought his case to them directly instead of reopening it in circuit court.
Tillery acted quickly to start new proceedings.
“This motion is the latest chapter in a long standing attempt to hold Philip Morris accountable for its unconscionable fraud,” King wrote.
“If there were ever a civil case which presented the kinds of extraordinary circumstances warranting a recall of a mandate of this Court, this is the case.”
Tillery sued Philip Morris in 2000, in Madison County, claiming it deceived smokers into expecting health benefits from light and low tar brands.
He sought the difference between what smokers paid and what they would have paid if Philip Morris hadn’t deceived them.
Former circuit judge Nicholas Byron certified lead plaintiff Sharon Price to represent millions of smokers.
Philip Morris asked for a jury, and Byron denied it.
He held trial in 2003, and awarded all the damages Tillery claimed.
Byron added punitive damages and allocated them to causes he found worthy.
He also awarded Tillery’s legal team $1.8 billion.
Byron’s judgment dwarfed the previous standard for class action success at trial, a $1 billion jury verdict against State Farm from Williamson County.
Jurors there found State Farm fraudulently supplied inferior parts for crash repairs.
In 2004, when Karmeier ran for Supreme Court, appeals from both Philip Morris and State Farm awaited decisions there.
Plaintiff lawyers backed Karmeier’s opponent, Fifth District appellate judge Gordon Maag, who had written an opinion affirming the State Farm judgment.
Voters chose Karmeier.
The Justices reversed both judgments in 2005, with Karmeier joining the majority each time.
The State Farm decision generally weakened class actions, while the Philip Morris decision rested on a narrow ground of federal preemption.
The majority in Price v. Philip Morris found they could not apply state law because the Federal Trade Commission authorized light and low tar labels.
Those Justices expressed concern about certification of the class and calculation of the damages, but found it unnecessary to address those items.
Tillery petitioned for rehearing and didn’t get it.
He petitioned the U.S. Supreme Court for review and didn’t get it.
In 2006, the Illinois Supreme Court issued a mandate to Byron.
Byron signed an order dismissing the case, but that didn’t stop the action.
Tillery has kept it going by pleading that new evidence contradicts the Supreme Court’s decision.
He argues that in 2008, in a separate case, the Federal Trade Commission took a position that it never authorized the labels.
Tillery persuaded Fifth District judges so well that they reinstated Byron’s judgment last year.
The Supreme Court vacated the justices’ decision on Nov. 4, finding they acted as a superior court to the Supreme Court.
Still, they did not end the action.
The majority held that if the class wanted to offer new evidence, the class should move to recall the mandate.
For the particulars of that process, the Justices referred plaintiffs to a recall motion that plaintiffs filed in the State Farm case.
In that case, in 2011, plaintiffs claimed they found new evidence of secret State Farm support for Karmeier in 2004.
Karmeier rejected recusal, and the Justices rejected the recall motion.
That didn’t end the dispute, for class members filed a racketeering suit against State Farm at U.S. district court in East St. Louis in 2012.
District Judge David Herndon ordered a deposition of Karmeier earlier this year, though lawyers at a recent hearing said it would not take place until next year.
Tillery has jumped into that case while pursuing the Philip Morris case.
When State Farm served a subpoena on plaintiffs’ researcher Doug Wojcieszak for documents, Wojcieszak didn’t object but Tillery did.
Tillery asserted privilege over documents from the Philip Morris case, for himself and for lawyers Brad Lakin, Randy Bono, John Simmons and Jeff Cooper.
Lakin, Bono, Simmons and Cooper had not previously associated themselves with the Philip Morris case.
Lawyers in both cases hired Wojcieszak, who found little or no direct support for Karmeier from State Farm or Philip Morris.
Instead he identified contributions from other sources and attributed them to State Farm for one client and to Philip Morris for the other.
Last year, when Karmeier stood for retention, plaintiff lawyers in both cases contributed hundreds of thousands of dollars on advertising against him.
Voters retained Karmeier, who then granted an interview to a public radio station in Springfield.
That interview turned into evidence in one case and possible evidence in the other.
In the State Farm case, on Nov. 10, Magistrate Judge Stephen Williams ruled that plaintiffs may examine Karmeier’s preparation of a timeline on a Court computer.
In the Philip Morris case, the motion to recall the Supreme Court mandate alleges that his statements to the press violated the state code of judicial conduct.
Tillery signaled a higher aim by invoking a decision of the U.S. Supreme Court in a West Virginia case, Caperton v. Massey Coal.
Unlike the indirect contributions that Wojcieszak counted, the West Virginia justice received about half his campaign fund from the coal company owner.
The U.S. Supreme Court ordered a new hearing with a substitute judge, who later ruled the same way the original judge ruled.