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Judge to hear argument to restore $10.1 billion tobacco penalty

By Marlon A. Walker, St. Louis Post-Dispatch –

EDWARDSVILLE, Ill. — A Madison County, Ill., judge could decide Tuesday whether to reinstate the controversial $10.1 billion verdict delivered nine years ago in a lawsuit against Philip Morris over allegedly deceptive advertising of “light” cigarettes.

Class-action plaintiffs, represented by the Korein Tillery law firm based in St. Louis, hinge their argument on a U.S. Supreme Court decision in an unrelated case.

Circuit Court Judge Dennis Ruth scheduled arguments in court here for 9 a.m.

Judge Nicholas Byron, now retired, had ordered the huge compensatory and punitive damages in 2003 after a two-month trial over whether the company violated an Illinois law by marketing “light” and “lowered tar and nicotine” cigarettes as safer options.

It was the first time a tobacco company lost a consumer fraud suit.

In 2005, the Illinois Supreme Court reversed the judgment, based on a claim that the Federal Trade Commission had authorized the wording for cigarette descriptions. The suit was dismissed the next year, after the U.S. Supreme Court refused to review the verdict.

But it was revived in 2008, after the U.S. Supreme Court ruled in a different suit, involving Philip Morris parent company Altria Inc., that the FTC never authorized use of term “light,” “low” or “reduced.”

The Madison County case languished for several years, with both sides battling over whether the Illinois Supreme Court decision in 2005 or local court’s dismissal in 2006 started the clock on a two-year appeal decline.

Neither the lead plaintiff’s attorney, Stephen Tillery, nor Philip Morris officials would comment before Tuesday’s hearing.

William Schroeder, a law professor at Southern Illinois University Carbondale, said that while an argument can be made for restoring the previous judgment, it’s not likely.

“Reinstating the verdict is not the ordinary practice,” he said. “My gut reaction is you might be able to bring up a new lawsuit, but finality tends to be an important piece here. This case was dismissed.

“It’s going to depend on the judge.”

Edward L. Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University in Boston, said the fraud claim has merit and the case ought to be reinstated. He suggested, “Philip Morris does deserve to pay for that.”

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