Madison County 'light' cigarette case hangs on in spite of demise of Price v. Philip Morris

By Ann Maher | Nov 28, 2016

An 11-year-old "light" cigarette lawsuit containing similar allegations as Madison County's most notable class action - Price v. Philip Morris - has been continued an 11th time since a judge ordered the plaintiff to explain why it should not be dismissed for want of prosecution.

The consumer fraud lawsuit claiming Huck’s convenience stores unfairly and deceptively schemed to get customers to buy light cigarettes was continued again by Circuit Judge William Mudge on Nov. 16 to Feb. 2, 2017.

In March 2014, Mudge noted the age and inactivity of the case brought on behalf of a Florida plaintiff in 2005 by then attorney Donald Flack.

Mudge wrote in an order at the time that "plaintiff shall show cause why this matter should not be dismissed for want of prosecution."

Flack, who is now a Madison County associate judge, filed the case on behalf of Michael Kelly of Florida. Kelly claims his father, Everett Kelly of Granite City, died from lung cancer in 2003, after smoking 20-30 Marlboro Lights cigarettes for nearly 30 years.

Kelly and his mother seek damages in their 15-count suit under the Illinois Consumer Fraud Act (ICFA), and they claim wrongful death, negligence and family expense.

Flack, who worked for Korein Tillery, was lead counsel in the case until the day before he was sworn in as associate judge on May 25, 2012, when Flack Law Office moved for withdrawal.

At the same time, Swansea personal injury attorney Judy Cates also was co-counsel in the case. She too filed a motion to withdraw as counsel later on Nov. 23, 2012, after being elected to the Fifth District Appellate Court. Cates’s former partner Ryan Mahoney substituted her.

In addition, attorney Stephen Tillery entered his appearance on June 8, 2012.

Tillery pursued Price v. Philip Morris for more than a decade after the Illinois Supreme Court initially rejected it in 2005. That pursuit came to an end in June when the U.S. Supreme Court declined Tillery's petition for review of the 15-year-old case.

In Kelly v. Martin & Bailey, parent company of Huck's Convenient Stores, case management conferences have been scheduled and continued through the years.

Kelly also names Philip Morris USA as defendant.

It was one of seven similar lawsuits Flack filed on behalf of persons suffering from lung cancer after prolonged light cigarette usage on the same day in February 2005.

The suits allege that Huck’s placed cigarettes into the stream of commerce, and “engaged in misrepresentations, unlawful schemes and conduct that induced the plaintiffs’ to purchase cigarettes through unfair and deceptive acts.”

Huck’s is accused of representing that Marlboro and Salem Lights cigarettes are “lights,” which implies that they are lower in tar and nicotine. It is also alleged that each milligram of tar from Marlboro and Salem Lights actually increases the mutagenicity of the tar delivered to the consumer and increases the levels of most harmful toxins.

Larry Hepler of HeplerBroom in Edwardsville represents Martin & Bailey and George Lombardi and others from Winston and Strawn in Chicago represent Philip Morris.

Two of the cases originally filed by Flack were dismissed without prejudice in 2006. Others were dismissed voluntarily in 2006 and 2007.

Other facts about the case:

- Originally assigned to Circuit Judge Daniel Stack

- Plaintiff substituted judge

- Case assigned to Circuit Judge Andreas Matoesian

- Plaintiff moved for another substitution

- Defense objects saying plaintiff already had been granted substitution as a right

- Then Chief Judge Ed Ferguson allowed substitution

- Case was assigned to Circuit Judge Nicholas Byron on June 8, 2005

- Next day, defense removes case to federal court

- Case is remanded more than two years later

- Defense substitutes Byron on Jan. 11, 2008

- Case assigned to Circuit Judge Dave Hylla; he recuses himself

- Case is assigned to Circuit Judge Barbara Crowder

- Attorney Judy Cates enters appearance May 24, 2009

- Case is assigned to Mudge, though the case docket sheet is not clear as to date.

Madison County case number 05-L-123.

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