St. Louis lawyer attempting to revive Phillip Morris lawsuit

St. Louis Daily Record & St. Louis Countian, May 14, 2007 by Tom Herrmann

In sports, errors by game officials often are reversed in the name of fair play.

A St. Louis lawyer is asking the Illinois 5th District Appellate Court whether that kind of instant replay applies to apparent errors in a court of law, even months after a case has been formally dismissed and even if the error is committed by the state's Supreme Court.

St. Louis attorney Steve Tillery is attempting to do something that has never been done in Illinois - revive a case that has been decided by the state Supreme Court, refused cert at the U.S. Supreme Court and dismissed.

At stake: A $10.1 billion class-action verdict.

His argument is straightforward: The Illinois Supreme Court relied on factually inaccurate information when it overturned the verdict against Philip Morris in 2005, a claim that is supported by a statement from the U.S. solicitor general.

"We believe they have to vacate it," Tillery said.

William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel, disagrees.

"Philip Morris USA doesn't believe the trial court has any authority to consider the plaintiffs' motion and should deny it," he said.

Tillery argued successfully at trial in 2005 that the tobacco company had misled smokers into believing that "light" cigarettes were lower in tar and nicotine than regular cigarettes. But the Illinois Supreme Court ruled that the Federal Trade Commission had sanctioned the term light, relieving the company of liability and overruling the verdict.

The reasoning behind that ruling came into question in February, in a separate case involving Philip Morris before the U.S. Supreme Court. In an amicus curiae brief, Solicitor General Paul Clement said the FTC had never endorsed the term "light" cigarettes.

"The United States also has an interest in this case because the court below based its decision on its understanding that respondent marketed its 'light' cigarettes pursuant to detailed and specific regulation by a federal agency - the Federal Trade Commission (FTC)," the brief states. "The FTC has never promulgated official regulatory definitions of terms such as 'light' or 'low tar.'"

Tillery says that because the state Supreme Court relied on inaccurate information to make its ruling, the court should correct that error, reopen the case and consider other issues raised in the appeal.

"The issue is not whether we're right. The issue is the power of courts to undo what we believe was an injustice," Tillery said.

"I don't think there's ever been a situation before where the solicitor general came out and said the information a decision was based on was wrong," Tillery said. "In the Watson case, the 8th Circuit Court took the exact position that the Illinois Supreme Court took and found that those words were authorized by the FTC. The U.S. Supreme Court asked the solicitor general if that was right or not, and the solicitor general comes back and says wrong, the FTC never did any of those things."

That argument is irrelevant, the company argued in its April 30 response to Tillery's motion. The case is closed, the company said.

"Plaintiffs do not cite a single case dealing with - much less approving of - a litigant's attempt to have a trial court re-assert general jurisdiction after all appeals have been exhausted and a specific mandate has been issued," the company said. "Nor can they, for no such case exists."

Reopening the case would wreak havoc on the smooth operation of the judicial system, the company argued in its response.

"If plaintiffs were right, litigation could continue forever, because the trial court always would have jurisdiction to consider judgment entered at the direction of a superior court, so long as the losing party asked for reconsideration within 30 days. Such a result would turn the entire appellate system on its head."

Madison County Circuit Judge Nicholas Byron referred the case to the appellate court to answer the question of whether the trial court has authority to consider Tillery's bid to reopen the case. No matter how the appellate court rules, the case almost certainly will be appealed to the state Supreme Court.

That decision, which could come down this summer, will be pivotal in this case. If Tillery loses his current argument, the principal of res judicata prevents him from filing a new class action with new plaintiffs.

The case also is unusual in that Tillery made no claims that smokers suffered personal injuries or wrongful death. Instead, his argument is "exclusively fraud," that smokers were misled by Philip Morris into buying light and low-tar cigarettes.