Attorney Stephen Tillery is arguing that a judgment in favor of cigarette maker Philip Morris was "fundamentally flawed," because it was based on "false facts advanced by Philip Morris at every step in this litigation." Madison County Circuit Judge Dennis Ruth has reset a hearing originally scheduled for Tuesday involving Tillery's petition for relief from the Illinois Supreme Court's dismissal of Price v. Philip Morris in 2005. The hearing will be held Aug. 21 in the $10.1 billion "light" cigarette labeling judgment that was later overturned.
Tillery filed a brief in support of a first amended petition for relief from judgment on May 4. According to Tillery, the FTC never allowed "low tar" descriptors, never had a policy of permitting descriptors, never required that Philip Morris disclose test measurements, never allowed the use of descriptors through consent orders and never intended for non-parties such as Philip Morris to take guidance from consent orders. "Because Philip Morris falsely represented contrary 'facts' in the litigation and successfully convinced Justice Garman to rely on those false 'facts' to dismiss Plaintiff's claims, plaintiff's petition should be granted," Tillery wrote.
Philip Morris filed a defendant's reply in opposition to plaintiffs' first amended petition for relief from judgment on April 23. "Litigation must come to an end, and the Illinois courts have thus imposed a heavy burden on litigants - like plaintiffs here - who seek to overturn a final judgment based on 'newly discovered evidence,'" according to the company's lawyers. Philip Morris is represented by Larry Hepler and W. Jason Rankin of Hepler Broom in Edwardsville, Michele Odorizzi of Mayer Brown LLP in Chicago and George C. Lombardi of Winston & Strawn LLP in Chicago. Rankin signed the brief. Nothing the plaintiffs say can get them past the problem that the new "evidence" they rely on does not reveal any new facts since Price was decided, he wrote.
"No previously undisclosed FTC history concerning 'lights' descriptors has been revealed, nor has any new document evidencing FTC action or inaction been unearthed that was previously unknown either to plaintiff's or the Illinois Supreme Court," he wrote. "To the contrary, the historical record remains the same today as it was in 2005, when the Illinois Supreme Court issued its decision." Philip Morris says it is erroneous for the plaintiffs to assert that Judge Ruth has power to grant its petition and reinstate the $10.1 billion judgment the Illinois Supreme Court reversed, because the Madison County courtlacks power to reverse the Illinois Supreme Court's decision.
Tillery responded to the tobacco company's opposition to re-opening the case in a brief filed April 10. The "facts were false," Tillery stated. In his brief, Tillery argues the Illinois Supreme Court had each relevant fact it considered wrong because Philip Morris presented the court with inaccurate facts about descriptors allowed by the Federal Trade Commission (FTC). Tillery states that whether Philip Morris' conduct was authorized is a question of the law, and whether the FTC permitted Philip Morris to use descriptors is a question of fact.
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