County of Cook v. Phillip Morris, Inc.

• Decision Date: 28 September 2004
• Docket Number: No. 1-01-3316.,1-01-3316.
• Citation: 817 N.E.2d 1039,353 Ill. App.3d 55,288 Ill.Dec. 389
• Parties: The COUNTY OF COOK, a Body Politic and Corporate; The People of the State of Illinois ex rel. Richard A. Devine; and The People of the County of Cook ex rel. Richard A. Devine, Plaintiffs-Appellants and Cross-Appellees, v. PHILIP MORRIS, INC.; R.J. Reynolds Tobacco Company, Brown and Williamson Tobacco Co., Liggett & Meyers, Inc.; Lorillard Tobacco Company; Inc.; United States Tobacco Company, P.L.C.; British American Tobacco Company, Ltd.; Hill and Knowlton, Inc.; The Council for Tobacco Research-U.S.A., Inc.; Tobacco Institute, Inc., Foreign Corporations; Leo Burnett USA, Chicago, a Corporation; Euro RSCG Tathan-Chicago, a Corporation; Roper Starch Worldwide, Inc., a Corporation; Roper Researchers Associates of New York, Young and Rubicam, Inc., a Corporation; and Mezzina/Brown, Inc., a Corporation, Defendants-Appellees and Cross-Appellants (The State of Illinois, Intervenor-Appellee).
• Court: United States Appellate Court of Illinois

817 N.E.2d 1039

353 Ill. App.3d 55

288 Ill.Dec. 389

The COUNTY OF COOK, a Body Politic and Corporate; The People of the State of Illinois ex rel. Richard A. Devine; and The People of the County of Cook ex rel. Richard A. Devine, Plaintiffs-Appellants and Cross-Appellees, v. PHILIP MORRIS, INC.; R.J. Reynolds Tobacco Company, Brown and Williamson Tobacco Co., Liggett & Meyers, Inc.; Lorillard Tobacco Company; Inc.; United States Tobacco Company, P.L.C.; British American Tobacco Company, Ltd.; Hill and Knowlton, Inc.; The Council for Tobacco Research-U.S.A., Inc.; Tobacco Institute, Inc., Foreign Corporations; Leo Burnett USA, Chicago, a Corporation; Euro RSCG Tathan-Chicago, a Corporation; Roper Starch Worldwide, Inc., a Corporation; Roper Researchers Associates of New York, Young and Rubicam, Inc., a Corporation; and Mezzina/Brown, Inc., a Corporation, Defendants-Appellees and Cross-Appellants (The State of Illinois, Intervenor-Appellee).

No. 1-01-3316.

Appellate Court of Illinois, First District, Third Division.

September 28, 2004.

Philip H. Corboy, Thomas A. Demetrio, Philip Hartnett Corboy, Jr., Corboy & Demetrio, Richard A. Devine, Cook County State's Attorney, Patrick T. Driscoll, Jr., Chief Civil Actions Bureau, Chicago, Michael T. Reagan, Herbolsheimer, Lannon, Henson, Duncan & Reagan, Ottawa, for Appellants.

Dan K. Webb, Thomas J. Frederick, Stuart Altschuler, Winston & Strawn, Chicago, for Philip Morris, Inc.

Harold C. Wheeler, James A. Morsch, Butler, Rubin, Saltarelli & Boyd, Chicago, for Liggett & Meyers, Inc.

Robert F. McDermott, Jr., Robert H. Klonoff, Jones, Day, Reavis & Pogue, Washington, D.C., Thomas F. Gardner, Jones, Day, Reavis & Pogue, Chicago, for R.J. Reynolds Tobacco Co.

James C. Munson, Douglas G. Smith, Kirkland & Ellis, Chicago, for Brown & Williamson Tobacco Co.

David W. Smith, Tina M. Schaefer, Shook, Hardy & Bacon, P.C., Kansas City, Missouri, Gary M. Elden, Gregory Jones, George R. Dougherty, Chicago, for Lorillard Tobacco Co.

Edward M. Crane, Mark E. Rakoczy, Skadden, Arps, Slate, Meagher & Flom (Illinois), Chicago, for U.S. Smokeless Tobacco Co., formerly United States Tobacco Co.

Michael T. Hannafan, Nicholas A. Pavich, Michael T. Hannafan & Associates, Ltd., Chicago, for British American Tobacco (Investments) Ltd Bruse G. Meritt, Harry Zirlin, Debevoise & Plimpton, New York, New York, Royal B. Martin, Robert S. Grabemann, Martin, Brown & Sullivan Ltd., Chicago, for The Council for Tobacco Research-U.S.A., Inc.

Bruce M. Ginsberg, Davis & Gilbert, New York, New York, Jeremy D. Margolis, Andrew R. Greene, Altheimer & Gray, Chicago, for Hill and Knowlton, Inc.

Michael A. Pope, David S. Rosenbloom, McDermott, Will & Emery, Chicago, for Leo Burnett USA, Chicago, Euro RSCG McConnaughy Tathan, Roper ASW, Young & Rubicam, Inc., and Mezzina/Brown, Inc.

James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, Don R. Sampen, Assistant Attorney General, Chicago, for The State of Illinois (Intervenor-Appellee).

Justice HALL delivered the opinion of the court:

The plaintiffs, the County of Cook, the People of the State of Illinois ex rel. Richard A. Devine, and the People of the County of Cook ex rel. Richard A. Devine (the plaintiffs), brought suit against the defendants, Philip Morris, Inc., Liggett & Meyers, Inc., certain other named tobacco manufacturers and certain named advertising agencies (the defendants), seeking damages from the defendants for the cost of health care for tobacco consumers in Cook County. The State of Illinois was granted leave to intervene in the suit. The circuit court dismissed certain counts of the second amended complaint but denied dismissal as to the counts brought pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act (the Fraud Act) (815 ILCS 505/1 et seq. (West 1996)). However, the circuit court dismissed the second amended complaint in its entirety based upon the remoteness doctrine.

The plaintiffs appeal the dismissal of the second amended complaint and the dismissal of certain specified counts. The defendants cross-appeal from the denial of their motion to dismiss the consumer fraud counts.

By way of background, on April 18, 1997, Cook County filed suit against the defendants. On May 26, 1999, Cook County filed its second amended complaint, adding as plaintiffs the People of the State of Illinois and the People of Cook County. The circuit court denied the defendants' motion to dismiss the counts alleging violations of the Fraud Act but granted the motion as to those counts alleging intentional and/or negligent breach of a special or general duty and a public nuisance.

During the pendency of the above suit, the State of Illinois entered into the Master Settlement Agreement (MSA) with the tobacco industry. See People v. Philip Morris, Inc., 198 Ill.2d 87, 259 Ill.Dec. 845, 759 N.E.2d 906 (2001). Under the MSA, the State would receive approximately $9 billion over a period of 25 years, with the potential for additional payments. Philip Morris, Inc., 198 Ill.2d at 92, 259 Ill.Dec. 845, 759 N.E.2d 906. Cook County was not a participant in the settlement discussions leading up to the MSA. Thereafter, a consent decree and final judgment was entered by the circuit court of Cook County in the State's own case against the defendants. People of the State of Illinois v. Philip Morris, Inc., No. 96 L 13146, 2004 WL 1735189.

Based upon the MSA, the defendants filed motions for summary judgment, arguing that the MSA barred the plaintiffs' suit and that the consent decree constituted res judicata as to the issues raised in the plaintiffs' second amended complaint. The State was granted leave to intervene in the suit. The circuit court denied the motions for summary judgment but granted the defendants' motion to dismiss the People of the State of Illinois and the People of Cook County as parties to the suit.

The defendants filed a motion for judgment on the pleadings, inter alia, on the remoteness doctrine. The defendants also filed another motion to dismiss the Fraud Act counts.

The circuit court denied the defendants' motion to dismiss the Fraud Act counts but granted them judgment on the pleadings, based upon the remoteness doctrine, and dismissed the second amended complaint in its entirety.

This appeal and cross-appeal followed.

ANALYSIS

I. Jurisdiction

Initially, we address the issue of this court's jurisdiction to consider this appeal. Even though neither party raises the issue, a reviewing court has a duty to consider sua sponte its jurisdiction. Cashmore v. Builders Square, Inc., 207 Ill.App.3d 267, 269, 152 Ill.Dec. 170, 565 N.E.2d 703 (1990).

At oral argument, we ordered the parties to address the issue of this court's jurisdiction in light of our recent decision in Dewan v. Ford Motor Co., 343 Ill.App.3d 1062, 278 Ill.Dec. 673, 799 N.E.2d 391 (2003). In response to this court's order, the parties submitted a joint memorandum addressing the issue of jurisdiction. The parties maintained that no fee petition was filed in this case and that the claim for attorney fees was related to another case involving some of the same parties.

The parties' memorandum does not specifically address our decision in Dewan. Nonetheless, we agree that since no petition for an award of fees was filed in this case, either before or after the circuit court's dismissal of the plaintiffs' complaint, the circuit court's judgment did not resolve fewer than all the claims, thus distinguishing the present case from Dewan. We now turn to the merits of the appeal and cross-appeal in this case.

II. Judgment on the Pleadings

The plaintiffs contend that the circuit court erred in dismissing their second amended complaint in its entirety based on the remoteness doctrine.

A. Standard of Review

This court reviews the granting of judgment on the pleadings de novo. People ex rel. Ryan v. Village of Hanover Park, 311 Ill.App.3d 515, 243 Ill.Dec. 823, 724 N.E.2d 132 (1999)

.

"`Judgment on the pleadings is proper only if questions of law, and not of fact, exist after the pleadings have been filed.' [Citation.]" Chicago Title & Trust Co. v. Steinitz, 288 Ill.App.3d 926, 934, 224 Ill.Dec. 354, 681 N.E.2d 669 (1997). If no issue of material fact is presented by the pleadings, "`the question is which party is entitled to judgment.' [Citation.]" Steinitz, 288 Ill.App.3d at 934, 224 Ill.Dec. 354, 681 N.E.2d 669.

B. Discussion

The factual allegations of the plaintiffs' second amended complaint may be summarized as follows. The defendants conspired to suppress information about the adverse and addictive qualities of nicotine, to create doubt about the publicly available adverse scientific studies, to conceal the defendants' manipulation of the level of nicotine in tobacco products, and to avoid competition, which may have made safer cigarettes available. A direct result of the defendants' actions was to forestall governmental regulation by Cook County and to contribute to Cook County's overall increased healthcare costs. The defendants' wrongful activities were designed to influence Cook County's conduct, and had the defendants' acts not been concealed, Cook County would have taken action to restrain those activities, which would have improved the health and lives of the residents of Cook County and directly reduced Cook County's costs.

Proof of a causal relationship between a defendant's action and a plaintiff's injury is essential in every tort "[b]ecause the consequences of an act go endlessly forward in time and its causes stretch back to the dawn of human history." Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 235 (2d Cir.1999). Thus, the concept of proximate cause was developed to limit the liability of a wrongdoer to only those harms with a reasonable connection to the wrongdoer's actions. Laborers Local 17 Health & Benefit Fund, 191 F.3d at 235.

One way in which the concept of proximate...