An Illinois appellate court recently revived a state court tobacco case that generated a $10.1 billion judgment on the class action’s first run through the state court system.

On Feb. 24, the Fifth District Appellate Court of Illinois — relying in part on a 2008 U.S. Supreme Court decision — ruled that Price v. Philip Morris Inc., a case dismissed by the Illinois Supreme Court in December 2005, could move forward. It remanded the case to the trial court for further proceedings.

Judge Melissa Chapman authored the judgment. Judges Bruce Stewart and James Wexstten concurred.

The plaintiff class, including named plaintiffs are Sharon Price and Michael Fruth, argued that they were harmed by Philip Morris’ allegedly deceptive advertising, which claimed that “light,” “low tar or nicotine” or “reduced” cigarettes were safer than regular cigarettes. Following a bench trial, the circuit court of Madison County, Ill., issued judgment for the plaintiffs in March 2003. The court awarded compensatory and punitive damages, attorney fees and prejudgment interest totaling $10.1 billion to an estimated 1.14 million members of the plaintiff class.

The Illinois Supreme Court dismissed the case on appeal in December 2005. The court ruled that the state law case was pre-empted by federal law: “[W]e conclude that the [Federal Trade Commission] could, and did, specifically authorize all United States tobacco companies to utilize the words ‘low,’ ‘lower,’ ‘reduced’ or like qualifying terms, such as ‘light,’ so long as the descriptive terms are accompanied by a clear and conspicuous disclosure of the ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette….Further, the FTC reiterated this authorization in [a] 1995 consent order….Thus, we hold that plaintiffs’ claim is barred by section 10b(1) of the Consumer Fraud Act.”

The U.S. Supreme Court denied the plaintiffs’ petition for a writ of certiorari in November 2006, and the trial court ultimately dismissed the case on Dec. 18, 2006.

But the plaintiffs saw an opening for their case when the U.S. Supreme Court issued it decision in Altria Group Inc. v. Good on Dec. 15, 2008. That ruling held that a federal law regulating cigarette advertising did not pre-empt a Maine state law barring deceptive cigarette ads.

The plaintiffs filed their petition for relief from judgment with the trial court on Dec. 18, 2008. Under Illinois law, there is a two-year statute of limitations for such petitions.

In their petition, the plaintiffs argued that the Good ruling demonstrated that the FTC had not allowed Philip Morris to use the terms “light” and “low tar.” According to the state appellate court ruling, the plaintiffs argued that the U.S. Supreme Court decision “undermined the entire basis for the Illinois Supreme Court’s holding in Price.”

The defendants argued that the two-year clock began running when the state Supreme Court ruled in December 2005. The trial court dismissed the petition on the ground that it was not timely filed, and the plaintiffs appealed.

In the appellate court ruling, Chapman wrote that the “appropriate starting point” is the December 2006 entry of the trial court order dismissing the plaintiffs’ complaint.

“Although the [state] supreme court’s December 2005 opinion was a final and appealable order, it did not become enforceable until the mandate issued in December 2006,” Chapman wrote. “Moreover the supreme court chose to remand to the trial court with directions to dismiss rather than simply reversing outright and dismissing the action itself.”

Since the Good ruling, “we have believed that the Illinois Supreme Court erred in reversing the $10 billion class-action verdict in favor of our clients in the Price v. Philip Morris case in Madison County in 2005,” said plaintiffs’ lawyer Stephen Tillery, the senior member of St. Louis-based Korein Tillery, in a written statement.

“This ruling by the Fifth District Appellate Court reinstating Price in Madison County gives us the opportunity to prove that point,” Tillery stated.

Michele Odorizzi, a litigation partner at Chicago’s Mayer Brown who argued for Philip Morris at the Fifth District Appellate Court, referred questions to the company.

According to a written statement from the company, Philip Morris will “continue to oppose efforts to re-open the Price ‘lights’ class action.”

“The court’s decision today 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, associate general counsel for Philip Morris’ parent company, Altria Group Inc., in the prepared statement. “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.”

Sheri Qualters can be contacted at squalters@alm.com.