2018 IL App (5th) 160239
NOTICE
Decision filed 08/10/18. The
text of this decision may be NO. 5-16-0239
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
JOHN JONES and DEBORAH JONES, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Richland County.
)
v. ) No. 13-L-21
)
PNEUMO ABEX LLC and OWENS-ILLINOIS, INC., ) Honorable
) William C. Hudson,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Presiding Justice Barberis and Justice Welch concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, John and Deborah Jones, brought an action against defendants, Pneumo Abex
LLC (Abex) and Owens-Illinois, Inc. (Owens-Illinois), among others, to recover for harm that
John allegedly suffered as a result of asbestos exposure that occurred while John was employed
in construction. Plaintiffs’ complaint alleged Abex was responsible for John’s injuries because it
entered into a civil conspiracy with Johns-Manville and other manufacturers of asbestos-
containing products to suppress information about the harmful health effects of asbestos and to
falsely assert asbestos exposure was safe. The complaint further alleged that Owens-Illinois
entered into the same conspiracy with Owens-Corning Fiberglas Corporation (Owens-Corning),
a nonparty in this case. The trial court entered summary judgment in favor of defendants on the
civil conspiracy claims. On appeal, plaintiffs argue that the trial court erred in granting summary
1
judgment because genuine issues of material fact exist as to (1) whether defendants entered into
a conspiratorial agreement to suppress or misrepresent information about the health hazards of
asbestos and (2) whether defendants committed acts in furtherance of such an agreement. For the
following reasons, we reverse and remand this cause for further proceedings consistent with this
opinion.
¶2 BACKGROUND
¶3 The two defendants in this appeal are (1) Abex, a manufacturer of asbestos-containing
brake linings, and (2) Owens-Illinois, a manufacturer and distributor of Kaylo, an asbestos-
containing insulation, between 1948 and 1958. Plaintiffs’ complaint against defendants is based
on civil conspiracy. Neither defendant employed John, and plaintiffs’ conspiracy claim against
Abex does not allege any asbestos exposure directly attributable to Abex. According to
plaintiffs’ complaint, John contracted lung cancer from his exposure to asbestos-containing
insulation during his career in construction, which began in 1969. The complaint asserted John
worked with Johns-Manville and Owens-Corning insulation during his construction career.
¶4 As to plaintiffs’ claim of conspiracy, the complaint alleged that Abex conspired with
other manufacturers of asbestos-containing products to falsely assert it was safe for people to
work in close proximity to asbestos and to suppress information about the harmful health effects
of asbestos exposure. Plaintiffs claim Abex committed numerous tortious acts in furtherance of
the conspiracy. Specifically, plaintiffs argue that although Abex was aware of the health hazards
of asbestos exposure, it continued making and distributing asbestos-containing products without
adequately protecting employees and customers, and it also manipulated the scientific and legal
landscape to shield the asbestos industry from liability and ensure continued profitability. The
complaint alleged John was injured as a result of this conspiratorial conduct.
2
¶5 The complaint identified the following overt acts that were allegedly committed by the
companies in furtherance of the conspiracy: (1) selling asbestos products, which were used at
John’s work, without warning customers of the health hazards of asbestos exposure; (2) failing to
warn employees about the health hazards of asbestos exposure; (3) editing and altering reports
and drafts of publications initially prepared by Dr. Anthony Lanza, a physician employed by
another alleged conspirator, Metropolitan Life Insurance, during the 1930s, which concerned the
health hazards of asbestos exposure; (4) entering into a written agreement to suppress the results
of research on the health effects of asbestos exposure; (5) obtaining an agreement in the 1930s
from the editors of ASBESTOS Magazine, the only trade magazine devoted exclusively to
asbestos, that the magazine would not publish articles connecting asbestos exposure to disease
and sustaining such agreement into the 1970s; (6) suppressing the dissemination of a 1943 report
prepared by Dr. LeRoy Gardner, a former director of the Saranac Laboratory for the Study of
Tuberculosis (Saranac Laboratory), in which he was critical of the idea that there was a safe level
of asbestos exposure; (7) defeating further study of the health of workers through their control of
the Asbestos Textile Institute; (8) editing and altering reports and publication drafts initially
prepared by Dr. Arthur Vorwald, a former director at Saranac Laboratory, from 1948 through
1951; (9) suppressing the results of the fibrous dust studies conducted between 1966 and 1974
that concluded asbestos exposure caused lung cancer and mesothelioma; (10) participating in
drafting a pamphlet published by the National Insulation Manufacturers Association (NIMA)
which purportedly failed to disclose the specific health hazards of asbestos exposure;
(11) purchasing asbestos without warning labels from co-conspirators; (12) refusing to warn
employees who used asbestos-containing materials in the manufacture of the companies’
products; and (13) altering the original report of a study performed by the Industrial Hygiene
3
Foundation to delete all references to the association of asbestosis (scarring of the lungs) and
lung cancer. The complaint further alleged that Owens-Illinois engaged in the same conspiracy
with Owens-Corning.
¶6 In June 2015, Abex filed a motion for summary judgment, asking the trial court to follow
Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463, Menssen v. Pneumo Abex Corp.,
2012 IL App (4th) 100904, and Gillenwater v. Honeywell International, Inc., 2013 IL App (4th)
120929, all Fourth District cases that found there was insufficient evidence to show Abex had
agreed with other companies to suppress or misrepresent the health hazards of asbestos. In
August 2015, Owens-Illinois filed a separate motion for summary judgment, also arguing, in
pertinent parts, that there was insufficient evidence to support a finding of conspiracy. Relying
on these Fourth District civil conspiracy cases, the trial court granted summary judgment in favor
of defendants.
¶7 This appeal followed.
¶8 ANALYSIS
¶9 “Civil conspiracy is defined as ‘a combination of two or more persons for the purpose of
accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful
means.’ ” McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133 (1999) (quoting
Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23 (1998)). To state a claim for civil
conspiracy, a plaintiff must allege the existence of an agreement and a tortious act committed in
furtherance of that agreement. Id.
¶ 10 “Civil conspiracy is an intentional tort and requires proof that a defendant ‘knowingly
and voluntarily participates in a common scheme to commit an unlawful act or a lawful act in an
unlawful manner.’ ” Id. (quoting Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 64 (1994)).
4
Accidental, inadvertent, or negligent participation in a common scheme does not result in
conspiracy. Id. at 133-34. Moreover, mere knowledge of the fraudulent or illegal actions of
another does not amount to conspiracy. Id. at 134.
¶ 11 Because a conspiracy is almost never susceptible to direct proof, it is usually established
by circumstantial evidence and inferences drawn from the evidence, coupled with common sense
knowledge of the behavior of persons in similar circumstances. Id. However, if a civil conspiracy
is shown by circumstantial evidence, that evidence must be clear and convincing. Id. Our
supreme court has determined that “parallel conduct may serve as circumstantial evidence of a
civil conspiracy among manufacturers of the same or similar products but is insufficient proof,
by itself, of the agreement element of this tort.” Id. at 135. Evidence of parallel conduct alone is
insufficient to establish a civil conspiracy by clear and convincing evidence. Id. at 146.
¶ 12 This appeal is before us on the trial court’s grant of summary judgment in favor of
defendants. Summary judgment is appropriate only where the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. General
Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002). A triable issue precluding
summary judgment exists where the material facts are disputed or where the material facts are
undisputed but reasonable persons might draw different inferences from those facts. Morris v.
Union Pacific R.R. Co., 2015 IL App (5th) 140622, ¶ 23.
¶ 13 In determining whether a genuine issue of material fact exists, the court should construe
the pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and
liberally in favor of the nonmoving party, drawing all reasonable inferences in favor of the
nonmovant. Id.; Shuttlesworth v. City of Chicago, 377 Ill. App. 3d 360, 366 (2007). Summary
5
judgment is a drastic remedy and should only be allowed when a moving party’s right is clear
and free from doubt. Morris, 2015 IL App (5th) 140622, ¶ 22. “The purpose of summary
judgment is not to try a question of fact, but to determine if one exists.” Robidoux v. Oliphant,
201 Ill. 2d 324, 335 (2002). We review a summary judgment ruling de novo. Morris, 2015 IL
App (5th) 140622, ¶ 23.
¶ 14 After careful review, we find the record is replete with genuine issues of material fact
from which a trier of fact could reasonably conclude the existence and acts in furtherance of a
civil conspiracy. Consequently, the trial court erred in granting summary judgment in favor of
defendants and against plaintiffs.
¶ 15 As to Abex, for example, plaintiffs presented evidence that Abex allegedly entered into
an agreement with Johns-Manville to suppress or misrepresent information regarding the health
hazards of asbestos. Specifically, plaintiffs introduced evidence that Abex signed a 1936
agreement to underwrite experiments with asbestos dust to be performed by Dr. Gardner. Further
evidence shows that after Abex received a copy of the 1948 report of Dr. Gardner’s dusting
experiments, which was published two years after Dr. Gardner’s death, Abex returned the report
at the request of Johns-Manville’s general counsel, Vandiver Brown, who wanted all references
to cancers and tumors deleted from the report. Brown felt it would be unwise to have any copies
of the draft report outstanding if the final report was to be different in any substantial respect.
Plaintiffs also produced evidence that shows Abex asked Brown to act on its behalf at a
conference in which the sponsoring companies of Dr. Gardner’s experiments agreed to delete
any reference to cancer and tumors from the final published report.
¶ 16 Similarly, plaintiffs presented evidence that Owens-Illinois allegedly entered into an
agreement with Owens-Corning to suppress information about the hazards of asbestos. Owens
6
Corning was formed by Owens-Illinois and Corning Glass in 1938. Plaintiffs presented evidence
that Owens-Illinois began manufacturing and selling a thermal insulation product named Kaylo
in 1943, and Owens-Illinois continued to sell Kaylo after it received warning that it was
potentially a respiratory hazard. One such warning was from Dr. Vorwald, who wrote to Owens-
Illinois in 1952 that studies showed “Kaylo dust is capable of producing a peribronchiolar
fibrosis typical of asbestosis.”
¶ 17 Plaintiffs’ evidence indicates Owens-Illinois and Owens-Corning entered into a
distributorship agreement in 1953. Under the agreement, Owens-Illinois continued to
manufacture Kaylo and Owens-Corning distributed it. This agreement lasted until 1958 when
Owens-Illinois sold its Kaylo division to Owens-Corning. Plaintiffs presented evidence that
during this agreement, the two companies did not place any warning on Kaylo packaging.
Rather, plaintiffs’ evidence shows the companies advertised Kaylo as “non-toxic” despite
knowing the advertisement was false. Plaintiffs’ evidence further indicates the two companies
remained close after Owens-Illinois sold its Kaylo division to Owens-Corning in 1958. Owens-
Illinois continued to provide warning-free packaging for Kaylo until the late 1960s, and Owens-
Illinois maintained a major investment in Owens-Corning into the 1970s. Plaintiffs produced
evidence that Owens-Illinois owned over 750,000 shares of Owens-Corning stock as late as
1978. Plaintiffs’ evidence also indicates that the profits and earnings of Owens-Corning were a
recurrent topic of conversation at Owens-Illinois directors meetings from the 1940s through the
1970s.
¶ 18 The foregoing examples are only a few of the numerous genuine issues of material fact in
the record from which a trier of fact could find the elements of civil conspiracy by clear and
convincing evidence. When construing the record liberally in favor of plaintiffs, it is possible for
7
a fair-minded trier of fact to find in favor of plaintiffs. We acknowledge that defendants dispute
plaintiffs’ evidence. At the very least, however, reasonable persons could draw different
inferences from the facts of record. At this stage in the litigation, it was error for the trial court to
weigh the evidence and grant summary judgment.
¶ 19 The trial court in this case relied on two dispositions rendered by our colleagues in the
Fourth District in arriving at its decision to grant summary judgment in favor of defendants. The
court cited Rodarmel, 2011 IL App (4th) 100463, in support of its decision to grant summary
judgment in favor of Abex, concluding “this matter is indistinguishable from Rodarmel on the
material issues.” The court also cited Gillenwater, 2013 IL App (4th) 120929, in support of its
decision to grant summary judgment in favor of Owens-Illinois, concluding “this matter is
indistinguishable from Gillenwater on the material issues.” There is a fatal flaw in the court’s
reliance on these two authorities: the action of the trial court at issue in both cases was judgment
notwithstanding the verdict (n.o.v.), not summary judgment.
¶ 20 In Rodarmel, the Fourth District considered whether the agreement between Abex and
other asbestos-manufacturing companies to suppress the cancer references in the Saranac
publication was a conspiratorial agreement. The court found no evidence that Abex agreed with
other companies to suppress or misrepresent the health hazards of asbestos. Rodarmel, 2011 IL
App (4th) 100463, ¶ 132. Therefore, the court held that Abex was entitled to a judgment n.o.v.
“because of a lack of clear and convincing evidence on the agreement element of a civil
conspiracy.” Id.
¶ 21 In Gillenwater, the Fourth District found there was clear and convincing evidence that
Owens-Illinois and Owens-Corning engaged in a conspiracy to conceal that Kaylo dust was
potentially a respiratory hazard from 1953 to 1958, during the period of the distributorship
8
between the two companies. Gillenwater, 2013 IL App (4th) 120929, ¶ 96. However, the court
concluded the conspiracy ended with Owens-Illinois’s sale of its Kaylo division to Owens-
Corning at the end of the distributorship agreement in 1958. Id. ¶¶ 107-08. Because the
conspiracy between the two companies ended in 1958, 14 years prior to the plaintiff’s alleged
injury by Kaylo in 1972, the court affirmed the trial court’s grant of judgment n.o.v. to Owens-
Illinois. Id. ¶¶ 107, 118.
¶ 22 In this case, the action is at the summary judgment stage, not the judgment n.o.v. stage as
in the Fourth District cases. Plaintiffs were not required to prove a conspiracy by clear and
convincing evidence in order to survive a motion for summary judgment. Rather, plaintiffs were
merely required to present sufficient facts, when viewed in the light most favorable to plaintiffs,
from which a trier of fact could find the existence of a conspiracy by clear and convincing
evidence. At this stage of the litigation, there are genuine factual issues from which a trier of fact
may conclude by a clear and convincing standard the elements of civil conspiracy. These
questions should have been considered by the trier of fact.
¶ 23 In sum, there are no definitive answers to the disputed questions of fact presented by
plaintiffs at this point in the litigation, thereby precluding summary judgment. Again, the
purpose of summary judgment is to determine whether a genuine issue of material fact exists, not
to try a question of fact. To ignore this standard of analysis and mechanically follow cases
applying a different, judgment n.o.v., standard rather than the rationale and black letter law of
summary judgment stands the concept of summary judgment on its head and results in our
appellate court, in effect, trying the case. For these reasons, the trial court erred in granting
summary judgment in favor of defendants.
9
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, we reverse the trial court’s order granting summary judgment
in favor of defendants and remand this cause for further proceedings.
¶ 26 Reversed and remanded.
10
2018 IL App (5th) 160239
NO. 5-16-0239
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
JOHN JONES and DEBORAH JONES, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Richland County.
)
v. ) No. 13-L-21
)
PNEUMO ABEX LLC and OWENS-ILLINOIS, INC., ) Honorable
) William C. Hudson,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: August 10, 2018
______________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable John B. Barberis, P.J., and
Honorable Thomas M. Welch, J.
Concur
______________________________________________________________________________
Attorneys James R. Wylder, Charles L. Corwin, Stephen F. Wood, Wylder, Corwin,
for Kelly, LLP, 207 E. Washington, Suite 102, Bloomington, IL 61701
Appellants
______________________________________________________________________________
Attorneys Robert H. Riley, Matthew V. Chimienti, Matthew J. Fischer, Alissa B.
for Kelso, Riley, Safer, Holmes & Cancila, LLP, Three First National
Appellees Plaza, 70 W. Madison Street, Suite 2900, Chicago, IL 60602 (attorneys for
Owens-Illinois, Inc.); Raymond H. Modesitt, Wilkinson, Goeller,
Modesitt, Wilkinson & Drummy, 333 Ohio Street, Terre Haute, IN 47807;
Robert W. Scott, Jr., Swain, Hartshorn & Scott, 411 Hamilton Blvd., Suite
1812, Peoria, IL 61602-1104; Reagan W. Simpson, Yetter, Coleman, LLP,
909 Fannin, Suite 3600, Houston, TX 77010; Craig L. Unrath, Heyl,
Royster, Voelker & Allen, 300 Hamilton Blvd., P.O. Box 6199, Peoria, IL
61601-6199 (attorneys for Pneumo Abex LLC)
______________________________________________________________________________