The unanimous ruling late last week by the three-judge panel of the Mount Vernon, Ill.-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 [image-nocss] to reinstate the questioned Madison County one involving PM USA's marketing of "light" cigarettes.
In 2003, now-retired Madison County Circuit Judge Nicholas Byron found that PM USA 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 (FTC) allowed companies to characterize or label their cigarettes as "light" and "low tar," so PM USA 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 to 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 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 PM USA 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.
Richmond, Va.-based PM USA, which can appeal the order to the state's high court, said in a statement that it will continue to oppose efforts to re-open the Price "lights" class action after an intermediate appellate court decision allowed plaintiffs to request a trial court to do so. The court's decision today was based solely on a procedural issue and does not address the merits whether the plaintiffs are entitled to re-open the Price case.
The intermediate appellate court ruling reverses an earlier trial court decision that denied the plaintiffs' request as untimely because it was made more than two years after judgment was granted for PM USA, exceeding the time limit for such appeals.
"The court's decision...was based solely on a procedural question around a timing issue and not the merits of the plaintiffs' request to re-open this closed case," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of PM USA. "This case ended in 2005 when the Illinois Supreme Court reversed the damages award against Philip Morris USA. Since that time, the plaintiffs have made multiple unsuccessful attempts to re-open the case. We believe that the plaintiffs' latest attempt is equally without merit."
Tillery countered in a statement obtained by the AP that his St. Louis firm is "eager to return to the courtroom to seek the justice our clients deserve." He said there would be no additional public comment, citing the pending status of the case.
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