May 30 2007 - Illinois judge wants tobacco case revived

A judge whose $10.1 billion judgment against Philip Morris USA in a lawsuit over light cigarettes was thrown out on appeal is asking a court whether he can revive the case.

Madison County Circuit Judge Nicholas Byron asked the Mount Vernon-based 5th District Appellate Court of Illinois this month to rule whether he has authority to reopen the lawsuit. Byron cited potentially new evidence stemming from a separate tobacco case pending before the U.S. Supreme Court.

Byron ruled in favor of smokers in March 2003, saying that Philip Morris -- now the nation's biggest cigarette maker -- had misled customers into believing they were buying a less harmful cigarette.

That lawsuit involved 1.1 million people who bought "light" cigarettes in Illinois. The suit asserted that Philip Morris -- a unit of New York-based Altria Group Inc. -- had known 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.

The state's Supreme Court overturned Byron's ruling, 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 let that ruling stand last November. In December, Byron dismissed the case.

But the attorney in that suit, Stephen Tillery of St. Louis, now says his original argument is supported by the U.S. solicitor general in a separate case before the nation's high court. Paul Clement -- the Bush administration's top Supreme Court lawyer -- said in the new case that the FTC had never authorized or ordered Marlboro Lights to be labeled as "lights" or use the words "lower tar and nicotine."
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