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"<em>(Editor's note: The Illinois Supreme Court announced April 22 that it has set oral arguments in the Price v. Philip Morris case at 9:30 a.m. on May 19).</em><br /><br />SPRINGFIELD- Asbestos lawyers caution that a pending decision of the Illinois Supreme Court on cigarettes could wreck the framework of asbestos litigation.<br /><br />The Chicago firm of Cooney and Conway issued that warning in March, as friend of the Court in its review of a $10 billion judgment against Philip Morris.<br /><br />The asbestos firm seeks to preserve the current Supreme Court standard holding a defendant liable if its conduct was a substantial factor in an injury.<br /><br />Philip Morris proposes a standard requiring proof that an injury would not have occurred but for the conduct of a defendant.<br /><br />Changing the standard would have &ldquo;wide ranging implications for tort cases throughout the state, including asbestos cases,&rdquo; Bruce Pfaff of Chicago wrote for Cooney and Conway.<br /><br />&ldquo;It is well settled that a &lsquo;but for&rsquo; standard cannot serve as an adequate measure of factual causation in all cases,&rdquo; he wrote.<br /><br />&ldquo;The substantial factor rule was developed primarily for cases, like those involving asbestos disease, in which application of the &lsquo;but for&rsquo; rule would allow a defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result.<br /><br />&ldquo;Unlike traditional tort injuries, asbestos injuries are not perceptible at the time that the tortfeasor&rsquo;s products and the plaintiff make physical contact.<br /><br />&ldquo;The long period between exposure to asbestos and the clinical ability to diagnose the disease creates difficulties in applying tort rules to asbestos cases.<br /><br />&ldquo;Moreover, the typical building trade asbestos plaintiff will have been exposed to billions of asbestos fibers during his&nbsp;career from numerous manufacturers, a factor that compounds this difficulty.<br /><br />&ldquo;There is no medical or scientific way to prove exactly which fiber caused the diseases process to begin.&rdquo;<br /><br />Pfaff also wrote that where multiple causes of harm exist, one or all might be found to be the cause in fact if the conduct satisfies the substantial factor test.<br /><br />He wrote that more than 25 years ago, the Court established a test requiring a plaintiff to show frequent, regular and proximate exposure to toxic materials.<br /><br />He wrote that the defendant in that case provided less than three percent of the asbestos at the factory where the plaintiff worked.<br /><br />&ldquo;The substantial factor test remains a viable method of proving causation where multiple sufficient causes exist for plaintiff&rsquo;s harm,&rdquo; Pfaff wrote.<br /><br />&ldquo;This Court should reject any attempt to narrow or eliminate its application.&rdquo;<br /><br />The Philip Morris case started in Madison County in 2000, when Stephen Tillery of St. Louis filed a class action under Illinois consumer fraud law.<br /><br />Former circuit judge Nicholas Byron entered judgment for the class after a bench trial in 2003.<br /><br />He ruled that for 30 years, Philip Morris deceived millions of smokers into expecting health benefits from light and low tar cigarettes.<br /><br />He awarded more than $7 billion in compensatory damages, and he awarded $3 billion in punitive damages to the state of Illinois.<br /><br />The Supreme Court reversed Byron in 2005, finding that the Federal Trade Commission authorized light and low tar labels.<br /><br />The Justices did not resolve challenges that Philip Morris raised against Byron&rsquo;s rulings on class certification, causation, and damages.<br /><br />Tillery revived the case, claiming he obtained new evidence showing the Federal Trade Commission did not authorize light and low tar labels.<br /><br />Byron&rsquo;s successor, Circuit Judge Dennis Ruth, ruled that the new evidence would not have changed the Supreme Court&rsquo;s decision.<br /><br />Fifth District appellate judges reinstated Byron&rsquo;s judgment last year, ruling that the new evidence would have changed the Supreme Court&rsquo;s decision.<br /><br />Philip Morris now argues that regardless of any new evidence, the Supreme Court should reverse Byron on class certification, causation, and damages."^^<http://www.w3.org/2001/XMLSchema#string>
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