Ill. appeals court revives cigarette lawsuit

[February 28, 2011]  EDWARDSVILLE (AP) -- A lawsuit that led to a $10.1 billion verdict against cigarette-making Philip Morris USA before it was tossed out by the Illinois Supreme Court has been revived by a lower court, sending the case back to the county once tagged as among the nation's most lawsuit-friendly turfs.

The unanimous ruling Thursday by the three-judge panel of the Mount Vernon-based 5th District Appellate Court cleared the way for the plaintiffs to argue that a favorable 2008 U.S. Supreme Court decision in an unrelated case may be applied to reinstate the questioned Madison County one involving Philip Morris' marketing of "light" cigarettes.

In 2003, now-retired Madison County Circuit Judge Nicholas Byron found that Philip Morris misled customers about "light" and "low tar" cigarettes and broke state law by marketing them as safer, ending a trial that both sides at the time said was the nation's first over a lawsuit accusing a tobacco company of consumer fraud.

The state's Supreme Court overturned that verdict in 2005, saying the Federal Trade Commission allowed companies to characterize or label their cigarettes as "light" and "low tar," so Philip Morris could not be held liable under state law even if such terms could be found false or misleading.

The U.S. Supreme Court in late 2006 let that ruling stand, and Byron dismissed the case the next month. But in December 2008, the nation's high court, in a 5-4 decision, ruled in a lawsuit on behalf of three Maine residents that smokers may use state consumer protection laws to sue cigarette makers for the way they promote "light" and "low tar" brands.

Counting that decision as new evidence, the attorney behind the Illinois lawsuit, Stephen Tillery, again approached the Mount Vernon appellate court in hopes of reopening his firm's class-action lawsuit involving 1.1 million people who bought "light" cigarettes in Illinois.

That suit has claimed that Philip Morris knew when it introduced such cigarettes in 1971 that they were no healthier than regular cigarettes. But the company hid that information and the fact that light cigarettes actually had a more toxic form of tar, the lawsuit claimed.

Philip Morris, which can appeal Thursday's order to the state's high court, said Saturday in a statement it would continue to fight. Murray Garnick of Altria Client Services, which represents Altria Group Inc. subsidiary Philip Morris USA, said Thursday's 11-page ruling was based solely on a procedural question about whether the plaintiffs met a statute of limitations -- the appeals court found they did -- and not the merits of the plaintiffs' bid to reopen the case.

Since Illinois' Supreme Court reversed the damages award, Garnick said, "the plaintiffs have made multiple unsuccessful attempts to reopen the case. We believe that the plaintiffs' latest attempt is equally without merit."

Tillery countered in a statement that his St. Louis firm is "eager to return to the courtroom to seek the justice our clients deserve." Tillery said there would be no additional public comment, citing the pending status of the case.

The St. Louis Post-Dispatch first reported Thursday's appellate victory for Tillery.

The protracted Illinois legal fight has proven to be a headache for even some jurists on the state's highest court. After Byron asked the Mount Vernon appellate court in May 2007 whether he had authority to reopen the lawsuit he decided against Philip Morris, the Illinois Supreme Court in 2007 ordered without explanation that Byron stop such inquiries.

"The court's action today is entirely predictable because it quickly and quietly closes the book on a case that a majority of this court, I am sure, would rather forget," Justice Charles Freeman wrote then in dissent in the 4-2 ruling.

Former Illinois Gov. James Thompson, a Chicago attorney who was representing Philip Morris, argued then that the appellate court has no authority to decide whether the case can be reopened.

The lawsuit and its massive damages award fanned the reputation of Madison County, just east of St. Louis, as a place where lawyers from across the country filed cases hoping for big payouts in matters involving everything from asbestos exposure to medical malpractice. President George W. Bush visited the county in January 2005 as a backdrop to pressure Congress to pass legislation limiting jury awards for medical malpractice. And in August of that year, then-Gov. Rod Blagojevich came to Madison County to sign a law seeking to hold down medical malpractice costs for doctors by limiting the amount of money people can collect in lawsuits against hospitals and physicians.

Some tort-reform advocates branded the county a "judicial hellhole" but have backed off in recent years, citing reforms by the county's judiciary aggressively bent on rehabbing the jurisdiction's image.

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Online:

Plaintiffs' law firm: http://www.koreintillery.com/

Altria Group Inc.: http://www.altria.com/

[Associated Press; By JIM SUHR]

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