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Supreme Court Date: 2021.01.29
15:06:44 -06'00'
Jones v. Pneumo Abex LLC, 2019 IL 123895
Caption in Supreme JOHN JONES et al., Appellees, v. PNEUMO ABEX LLC et al.,
Court: Appellants.
Docket Nos. 123895, 124002 cons.
Filed December 19, 2019
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of Richland County, the Hon.
William C. Hudson, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Craig L. Unrath, of Heyl, Royster, Voelker & Allen, P.C., of Peoria,
Appeal Gary C. Pinter, of Swanson, Martin & Bell, LLP, of Edwardsville,
Reagan W. Simpson, of Yetter Coleman LLP, of Houston, Texas, and
Raymond H. Modesitt, of Wilkinson, Goeller, Modesitt, Wilkinson &
Drummy, LLP, of Terra Haute, Indiana, for appellant Pneumo Abex
LLC.
Robert H. Riley, Matthew J. Fischer, Edward Casmere, Joshua D. Lee,
and Sarah E. Finch, of Riley Safer Holmes & Cancila LLP, of Chicago,
for other appellant.
Charles Lynn Corwin and James Wylder, of Wylder Corwin Kelly
LLP, of Bloomington, for appellees.
Justices JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Burke and Justices Garman and Neville concurred in the
judgment and opinion.
Justice Kilbride dissented, with opinion.
Justices Thomas and Theis took no part in the decision.
OPINION
¶1 At issue in these consolidated appeals is whether Owens-Illinois, Inc. (Owens-Illinois), and
Pneumo Abex LLC (Pneumo Abex) may have conspired with others to suppress information
regarding the dangers of exposure to asbestos. Twenty years ago, in McClure v. Owens
Corning Fiberglas Corp., 188 Ill. 2d 102 (1999), we held that jury verdicts entered against
Owens Corning and Owens-Illinois, Inc., based on claims of civil conspiracy virtually identical
to those asserted here could not stand and that those defendants were entitled to judgment as a
matter of law. Our appellate court reached the same conclusion with respect to similar claims
of civil conspiracy leveled against Pneumo Abex. Rodarmel v. Pneumo Abex, L.L.C., 2011 IL
App (4th) 100463; Menssen v. Pneumo Abex Corp., 2012 IL App (4th) 100904; Gillenwater v.
Honeywell International, Inc., 2013 IL App (4th) 120929 (also affirming entry of judgment
notwithstanding the verdict (judgment n.o.v.) in favor of Owens-Illinois as well as upholding
summary judgment for both defendants and against a spouse on a related loss of consortium
claim). Applying the foregoing precedent, the circuit court in this case granted summary
judgment in favor of Owens-Illinois and Pneumo Abex on plaintiffs’ claims that the companies
had been part of a conspiracy to conceal the harmful effects of exposure to asbestos. The
appellate court, however, reversed and remanded for further proceedings, holding that genuine
issues of fact remained, precluding summary judgment. 2018 IL App (5th) 160239. For the
reasons that follow, we now reverse the appellate court’s judgment and remand to that court
for further proceedings.
¶2 BACKGROUND
¶3 In February 2013, John Jones and his wife, Deborah, filed this action in the circuit court of
Richland County to recover damages they suffered when John contracted lung cancer. The
Joneses’ complaint alleges that John’s lung cancer resulted from his exposure to asbestos,
“including asbestos from one or more” of the numerous companies named as defendants in the
case, while he was involved in the construction industry “from 1962 through the 1970’s” and
while he repaired the brakes on motor vehicles he owned during the same time period. 1
1
In addition to Owens-Illinois, Inc., and Pneumo-Abex LLC, plaintiffs’ complaint named as
defendants Akzo Nobel Paints, LLC, formerly known as The Glidden Co.; American Biltrite, Inc.;
American Tar Products, Inc., formerly known as Koppers Products, Inc.; Ameron International
Corporation; Bechtel Corporation; Bird Incorporated; Borg Warner Corporation “by its successor-in-
interest Borg Warner Morse Tec, Inc.”; Brand Insulations, Inc.; Caterpillar, Inc.; “CBS Corporation,
formerly known as Viacom, Inc., Merger to CBS Corporation, formerly known as Westinghouse
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¶4 Only two of the named defendants are involved in this appeal, Owens-Illinois and Pneumo
Abex. Both were alleged to have been “in the business of manufacturing and distributing
asbestos and asbestos containing products.” Specifically, Pneumo Abex is claimed to have
made some of the brake linings and pads John used when repairing his vehicles, while Owens-
Illinois manufactured Kaylo brand pipe covering, an insulation product alleged to have been
present at construction sites where John worked.
¶5 The Joneses’ six-count complaint sought to hold Owens-Illinois and Pneumo Abex liable
on various theories. Count I asserted that these defendants and others knew that asbestos was
dangerous but conspired to misrepresent its dangers and to falsely represent that exposure to
asbestos and asbestos-containing products was safe or nontoxic. Count I further alleged that
Owens-Illinois and Pneumo Abex similarly conspired to “fail to provide information about the
harmful effects of asbestos to exposed persons.”
¶6 Numerous specific acts were alleged to have been performed in furtherance of this
conspiracy. Specifically, the Joneses asserted that “[o]ne or more of the Conspirators,” a group
that included Owens-Illinois and Pneumo Abex,
“a) sold asbestos products which were used at the locations where John Jones
worked without warning of the hazards known to the seller, including the sale and use
of products of Johns-Manville, Owens Corning, and Owens-Illinois, which exposed
John Jones to asbestos;
b) refused to warn its own employees about the hazards of asbestos known to it,
specifically included is the refusal of Unarco and Owens Corning to warn their
employees at the Bloomington, Illinois plant during the years 1951-1972;
c) edited and altered the reports and drafts of publications initially prepared by Dr.
Lanza concerning the hazards of asbestos during the 1930’s;
d) agreed in writing not to disclose the results of research on the effects of asbestos
upon health unless the results suited their interests;
e) obtained an agreement in the 1930’s from the editors of ASBESTOS, the only
trade magazine devoted exclusively to asbestos, that the magazine would never publish
articles on the fact that exposure to asbestos caused disease, and sustained this
agreement into the 1970’s;
Electric Corporation”; CSR, Inc.; CSR, Ltd.; Certainteed Corporation; Chicago Gasket Company;
Cleaver-Brooks, a Division of Aqua-Chem, Inc.; Conwed Corporation; Crane Company; Crown Cork
& Seal USA, Inc.; DAP, Inc.; De Witt Products Co.; Domco Products Texas, L.P.; Draco Mechanical
Supply, Inc.; Duro Dyne Corporation; Foster Wheeler Energy Corporation; General Electric Company;
General Gasket Corporation; General Refractories Co.; Georgia Pacific Corporation; The Goodyear
Tire & Rubber Company; Homasote Company; Honeywell International, Inc.; Industrial Holding
Corporation; J-M Manufacturing Company, Inc.; John Crane, Inc.; J.P. Bushnell Packing Supply Co.;
Kaiser Gypsum Company, Inc.; Karnak Midwest, LLC; KCG, Inc.; Kelly Moore Paint Company;
Kelsey-Hayes Company; Kimberly-Clark Corporation; McMaster-Carr Supply Co.; Mannington Mills,
Inc.; Mechanical Insulation Co. Inc.; Metropolitan Life Insurance; National Service Industries, Inc.;
Oakfabco, Inc.; Rapid-American Corporation; Sherwin-Williams Company; Simpson Timber
Company; Sprinkmann Sons Corporation; SPX Cooling Technologies, Inc.; Superior Boiler Works,
Inc.; Thiem Corporation; Trane U.S. Inc.; Tremco, Inc.; Union Carbide Corporation; Weil-McLain
Company; Welco Manufacturing Company; York International Corporation; and Zurn Industries LLC.
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f) suppressed the dissemination of a report by Dr. Gardner in 1943 which was
critical of the concept that there was a safe level of asbestos exposure;
g) through their control of the Asbestos Textile Institute (ATI), defeated further
study of the health of workers when William Hemeon graphically demonstrated the
need for such study and dissemination of information in the 1940’s;
h) edited and altered the reports and drafts of publications regarding asbestos and
health initially prepared by Dr. Vorwald during 1948-1951;
i) suppressed the results of the Fibrous Dust Studies conducted during 1966-74 by
the Industrial Health Foundation, Inc., Johns-Manville, Raybestos Manhattan, Owens
Corning, Pittsburgh Corning Corporation and PPG Industries, which results
demonstrated and confirmed that exposure to asbestos caused lung cancer and
mesothelioma;
j) acting under the name of NIMA, published a pamphlet entitled ‘Recommended
Health Safety Practices for Handling and Applying Thermal Insulation Products
Containing Asbestos’ in which they purported to inform readers about the health
hazards of airborne asbestos, but withheld, among other facts, that asbestos caused
serious disease and death, including cancer, that there was no cure for asbestos disease,
and that there was no known safe level of exposure to asbestos;
k) purchased asbestos which did not contain warnings from coconspirators, to
which the purchaser then exposed its own employees without warning of the hazards
known to the seller and purchaser, including the purchase of asbestos by Owens-Illinois
from Unarco;
l) refused to warn its employees who had to use asbestos-containing materials in
the manufacture of other products of the conspirator of the hazards of exposure to
asbestos known to the conspirator, including the refusal of Owens-Illinois to warn its
employees who were exposed to asbestos in connection with the manufacture of glass
products of the hazards of asbestos known to Owens-Illinois;
m) purchased asbestos which did not contain warnings from co-conspirators, to
which the purchaser then expected [sic] its own employees without warning of the
hazards known to the seller and purchaser, including the purchase of asbestos by
Bendix (n/k/a Honeywell) from Johns-Manville;
n) refused to warn its employees who had to use asbestos-containing materials in
the manufacture of other products for the conspirator of the hazards of exposure to
asbestos known to the conspirator, including the refusal of Bendix to warn its
employees who were exposed to asbestos in connection with the manufacture of
friction products of the hazards of asbestos known to Bendix; and
o) altered, including the deletion of all references to the association of asbestosis
and lung cancer, the original report of the study performed by Braun of the Industrial
Hygiene Foundation before the altered version was published in 1958.”
¶7 According to count I of the complaint, “the agreement or understanding” between the
conspirators and the acts done in furtherance of the agreement or understanding were the
proximate cause of John’s injuries, and defendants should be held jointly and severally liable
for the damages he sustained. Count II of the complaint was premised on the same theory and
was directed at the same defendants but sought relief for John’s spouse, Deborah, who claimed
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that, because of John’s injury, she suffered “an injury to her husband/wife relationship and
became obligated for the expense of the medical care” he received.
¶8 Counts III and IV of plaintiffs’ complaint sounded in negligence and sought damages for
John and Deborah, respectively, on the grounds that defendants had “manufactured and sold
asbestos containing products which were used by [John] or others in his proximity at the
locations where [he] worked;” that John had contracted lung cancer as a result of being exposed
to asbestos from defendants’ products; that defendants “knew, or should have known, that
exposure to asbestos caused pulmonary fibrosis and malignancies;” and that defendants were
negligent for having failed to warn that exposure to asbestos could cause serious disease,
including pulmonary fibrosis and malignancies, and could result in death and for having failed
to provide proper instruction “as to safe methods, if any existed,” for handling and processing
products containing asbestos. Counts V and VI were to the same effect but contended that
defendants’ conduct was willful and wanton and sought punitive as well as actual damages.
¶9 Following various developments not relevant here, including minor amendments to the
complaint and dismissal of certain counts as to certain defendants, Pneumo Abex moved for
summary judgment pursuant to section 2-1005(c) of the Code of Civil Procedure (735 ILCS
5/2-1005(c) (West 2014)) with respect to the claims asserted against it for civil conspiracy. As
grounds for that motion, Pneumo Abex argued that the civil conspiracy claims leveled here
were based on the same facts as those underlying the civil conspiracy claims advanced
unsuccessfully by other plaintiffs in Rodarmel, 2011 IL App (4th) 100463, Menssen, 2012 IL
App (4th) 100904, and Gillenwater, 2013 IL App (4th) 120929, and in numerous other cases
resolved in Pneumo Abex’s favor at the trial court level. Pneumo Abex asserted that nothing
new has been presented in this case that would warrant a different outcome. Accordingly, as
in those prior cases, it contended that plaintiffs’ conspiracy claims should fail as a matter of
law.
¶ 10 Two months later, Owens-Illinois filed its own motion for summary judgment. Its motion
sought judgment in the company’s favor with respect to all six counts of plaintiffs’ complaint.
Regarding counts III through VI, which were predicated on the contention that John Jones had
been directly exposed to asbestos dust, Owens-Illinois asserted that plaintiffs’ claims must fail
as a matter of law because there is “no evidence that Jones was ever exposed to any asbestos-
containing product manufactured or sold by Owens-Illinois, let alone evidence of exposures
that occurred on a frequent, regular and proximate basis.”
¶ 11 As to counts I and II, which sought to impose liability based on the theory of civil
conspiracy, Owens-Illinois contended that all of the evidence advanced by plaintiffs here has
already been considered and found lacking by this court in McClure, 188 Ill. 2d 102, and
various lower courts in Illinois, including the same appellate court decisions cited by Pneumo
Abex in its motion for summary judgment, Rodarmel, 2011 IL App (4th) 100463, Menssen,
2012 IL App (4th) 100904, and Gillenwater, 2013 IL App (4th) 120929. Owens-Illinois further
noted that in the previous three years, various Illinois circuit courts and one United States
district court had granted Owens-Illinois summary judgment more than 60 times in cases
involving precisely the same civil conspiracy claim asserted here. As did Pneumo Abex,
Owens-Illinois contended that the evidence presented by the Joneses is similarly insufficient
as a matter of law to support a finding that the company had engaged in any actionable civil
conspiracy. In addition, Owens-Illinois argued that plaintiffs’ loss of consortium counts are
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fatally defective because, among other things, Deborah was not yet married to John at the time
the actionable conduct alleged in their complaint occurred.
¶ 12 Following a hearing, the circuit court entered separate orders disposing of each of these
summary judgment motions. With respect to the motion filed by Pneumo Abex, the circuit
court held that the parties had “readily admitted at argument that the body of evidence in the
instant matter is the same as that in Rodarmel v. Pneumo Abex LLC, 2011 IL App (4th)
100463,” where the appellate court held that the circuit court should have granted Pneumo
Abex’s motion for a directed verdict on the civil conspiracy claims asserted against it there
“not only because of a lack of duty but also because of a lack of clear and convincing evidence
on the agreement element of a civil conspiracy.” Rodarmel, 2011 IL App (4th) 100463, ¶ 132.
¶ 13 In the circuit court’s view, the only distinction between the record in Rodarmel and the
record here was testimony by Dr. Arthur Frank regarding the scientific validity of the Gardner
study referenced in plaintiffs’ complaint. As had other circuit courts in similar cases, the circuit
court here concluded that this difference was unimportant. “[O]n the materials issues,” the
court believed, “this matter is indistinguishable from Rodarmel.” It therefore adopted the
findings and analysis of that case and held that, as a matter of law, Pneumo Abex did not enter
into a conspiracy to suppress the hazards of asbestos and “[t]he alleged injury-causing conduct
was not committed in furtherance of that conspiracy that [Pneumo] Abex allegedly joined
because [Pneumo] Abex joined no conspiracy.” Accordingly, it entered summary judgment in
favor of Pneumo Abex and against plaintiffs on the civil conspiracy claims.
¶ 14 With respect to Owens-Illinois, plaintiffs indicated at the hearing that they would not
oppose entry of summary judgment against them as to counts III through VI, the direct
exposure counts, based on the record then before the court. The circuit court’s summary
judgment order therefore addressed only the merits of Owens-Illinois’s motion as to counts I
and II, the civil conspiracy counts. Echoing its ruling with regard to Pneumo Abex, the court
wrote that “[c]ounsel for Plaintiffs and Defendant readily admitted at argument that the body
of evidence in the instant matter is the same as that in Gillenwater v. Honeywell International,
Inc., 2013 IL App (4th) 120929.” In that case, which contained the same civil conspiracy claim
asserted here, the Fourth District concluded that, when all of the evidence was viewed in the
light most favorable to the plaintiffs and all reasonable inferences were drawn in their favor,
the evidence so overwhelmingly favored Owens-Illinois and the other defendants that no
verdict against them could ever stand. Gillenwater, 2013 IL App (4th) 120929, ¶ 123. Finding
Gillenwater indistinguishable, the circuit court here adopted its findings and analysis and
concluded that summary judgment in favor of Owens-Illinois was proper.
¶ 15 Although the circuit court’s summary judgment orders did not fully resolve the litigation,
the court entered separate orders pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8,
2016) in which it made express written findings that there was no just reason for delaying the
appeals. Plaintiffs appealed. The appellate court reversed and remanded for further
proceedings, concluding that, at this stage of the proceedings, “there are no definitive answers
to the disputed questions of fact presented by plaintiffs” regarding the existence of the
conspiracy they claimed and that summary judgment was therefore inappropriate. 2018 IL App
(5th) 160239, ¶ 23.
¶ 16 In its opinion, the appellate court cited our previous decision in McClure, 188 Ill. 2d 102,
which overturned a jury verdict that had been entered against Owens-Illinois on a civil
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conspiracy claim virtually identical to plaintiffs’ on the grounds that the evidence, when
viewed in the light most favorable to the plaintiffs in that case, so overwhelmingly favored
Owens-Illinois that no contrary verdict could ever stand. The appellate court invoked McClure,
however, only for general principles governing claims for civil conspiracy. It made no
substantive comparison between the facts presented in that case and those asserted here.
Indeed, after its perfunctory reference to McClure in the first paragraph of the analysis section
of its opinion (2018 IL App (5th) 160239, ¶ 9), the appellate court never mentioned it again.
¶ 17 The appellate court also referenced two of the three appellate decisions cited by Pneumo
Abex and Owens-Illinois in support of their summary judgment motions, Rodarmel, 2011 IL
App (4th) 100463, and Gillenwater, 2013 IL App (4th) 120929. As indicated earlier in this
opinion, those cases, like McClure, likewise included civil conspiracy claims against
defendants based on virtually the same facts and theories as those asserted against them by
plaintiffs here, and both were ultimately resolved in defendants’ favor. Despite this, the
appellate court did not consider them dispositive. After undertaking a cursory examination of
the two decisions, it found them distinguishable for one basic reason: they arose from motions
for judgment notwithstanding the verdict rather than summary judgment. In the appellate
court’s view, applying precedent involving judgment n.o.v. “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.” 2018 IL App (5th) 160239, ¶ 23. It
therefore determined that those decisions were not controlling. 2
¶ 18 The appellate court made no mention of a third case cited by the circuit court, Menssen,
2012 IL App (4th) 100904. That case, which involved a civil conspiracy claim against Pneumo
Abex, was decided after Rodarmel and involved later exposure dates and additional evidence
not considered by the Rodarmel court. After reviewing that additional evidence, the appellate
court in Menssen determined that it was insufficient to alter the court’s previous conclusion,
and as in Rodarmel, it concluded that Pneumo Abex was entitled to judgment notwithstanding
the verdict, reversing outright the jury’s determination that the company had conspired to
suppress or misrepresent the health hazards of asbestos. Id. ¶¶ 49-54. Because Menssen
involved judgment n.o.v. rather than summary judgment, we presume the appellate court here
would have rejected it for the same reason it rejected Rodarmel and Gillenwater.
¶ 19 Shortly before the appellate court filed its opinion in August 2018, a different district of
the appellate court decided another virtually identical civil conspiracy case involving Pneumo
Abex and Owens-Illinois, Johnson v. Pneumo Abex, LLC, 2018 IL App (3d) 160406-U. There,
as here, the circuit court had granted summary judgment in favor of both defendants. Plaintiffs,
also a husband and wife, appealed. In contrast to the appellate court panel in this case, the
appellate court in Johnson found Rodarmel, Menssen, and Gillenwater to be applicable.
2
While ultimately unimportant to our resolution of this case, we feel obliged to point out that the
appellate court’s characterization of Gillenwater was inaccurate. The loss of consortium claim asserted
by the spouse in that case was decided on a motion for summary judgment, not a motion for judgment
n.o.v. On appeal, the appellate court agreed that summary judgment was properly entered against the
spouse because manufacturers owe no duty to a future spouse and the couple was not yet married at the
time of the alleged exposure. Gillenwater, 2013 IL App (4th) 120929, ¶ 151. As our summary of the
case has indicated, Owens-Illinois raised the same argument in response to Deborah’s loss of
consortium claim here.
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Consistent with that precedent, it affirmed the circuit court’s entry of summary judgment in
favor of Pneumo Abex and Owens-Illinois and against plaintiffs. We denied plaintiffs’ petition
for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. July 1, 2018), with one
justice dissenting. Johnson v. Pneumo Abex, LLC, No. 123820 (Ill. Sept. 26, 2018). We
subsequently allowed petitions for leave to appeal filed in this case by Pneumo Abex and
Owens-Illinois and consolidated their appeals for briefing and disposition.
¶ 20 ANALYSIS
¶ 21 Because this appeal arises from the appellate court’s reversal of a circuit court order
granting summary judgment, our review is de novo. Northern Illinois Emergency Physicians
v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005).
¶ 22 As noted earlier in this opinion, the question of whether Pneumo Abex or Owens-Illinois
engaged in a civil conspiracy to conceal the dangers of asbestos has been frequently litigated
in the courts of this state. Such claims often fail at the summary judgment stage. In those
instances where they have proceeded to trial before a jury and resulted in verdicts favorable to
the plaintiffs, reviewing courts have consistently concluded that these companies could not be
held liable for civil conspiracy as a matter of law and entered judgment notwithstanding the
verdicts in their favor. Our opinion in McClure, 188 Ill. 2d 102, is among these decisions. So
too are the appellate court opinions in Rodarmel, 2011 IL App (4th) 100463, Menssen, 2012
IL App (4th) 100904, and Gillenwater, 2013 IL App (4th) 120929.
¶ 23 Instead of undertaking a meaningful evaluation of the applicability of the legal principles
governing civil conspiracy as articulated in that precedent, and with no real assessment of
whether and to what extent any factual differences between those cases and this one might
justify a different result, the appellate court summarily distinguished the prior decisions on the
sole grounds that the civil conspiracy claims advanced against Owens-Illinois and Pneumo
Abex in those cases were decided in the context of motions for judgment notwithstanding the
verdict, while here they were resolved on motions for summary judgment. In taking that
approach, the appellate court committed reversible error.
¶ 24 The appellate court correctly noted that summary judgment is appropriate 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. 735 ILCS 5/2-1005(c) (West 2016); 2018 IL App (5th) 160239,
¶ 12. The problem with the appellate court’s analysis is that it subsequently failed to properly
appreciate that this case does not present the typical summary judgment scenario, where the
issues in dispute have yet to face the scrutiny of a trier of fact and the objective is to determine
whether a genuine issue of material fact exists. See Northern Illinois Emergency Physicians,
216 Ill. 2d at 305. Rather, it arises from a long and well-documented historical record that has
been thoroughly explored and aggressively tested in the course of scores of lawsuits spanning
more than two decades involving conduct that occurred long ago. Consistent with that
background, the pleadings, affidavits, and other materials submitted by the parties, both in
support of and in opposition to the motions for summary judgment, were exhaustive. The
parties appear to have left nothing out, and they make no claim that there is additional evidence
that still needs to be uncovered before the matter can be properly considered by the trier of
fact.
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¶ 25 In such cases, there is no practical difference between the standard for summary judgment
and that governing directed verdicts. Even if some issue of fact is presented by the summary
judgment motion, if “ ‘what is contained in the pleadings and affidavits would have constituted
all of the evidence before the court and upon such evidence there would be nothing left to go
to a jury, and the court would be required to direct a verdict, then a summary judgment should
be entered.’ ” Cohen v. Chicago Park District, 2017 IL 121800, ¶ 27 (quoting Fooden v. Board
of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587 (1971)); Koziol v. Hayden,
309 Ill. App. 3d 472, 477 (1999).
¶ 26 To be sure, McClure, Rodarmel, Menssen, and Gillenwater involved entry of judgment
n.o.v. rather than directed verdicts. This distinction, however, is of no consequence. The
identical standard applies in either case (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
498-99 (1967); Maple v. Gustafson, 151 Ill. 2d 445, 453 n.1 (1992)), namely whether all of the
evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors
the movant that no contrary verdict based on the evidence could ever stand (Harris v.
Thompson, 2012 IL 112525, ¶ 15).
¶ 27 Under these circumstances, the appellate court clearly erred in failing to follow our
decision in McClure and in distinguishing the various related appellate decisions involving
civil conspiracy claims against Owens-Illinois and Pneumo Abex on the grounds that the
standard governing defendants’ motions in this case was different. The standard is the same.
If judgment n.o.v. were proper, summary judgment would also be proper.
¶ 28 To hold otherwise would be nonsensical. If all relevant evidence is already before the court
and upon such evidence there would be nothing left to go to a jury so that the court would be
required to direct a verdict, denying summary judgment to permit further proceedings to take
place would serve no purpose. The outcome would not change.
¶ 29 This is something the appellate court here failed to grasp. It was as if it had picked up a
suspense novel and declared the mystery unsolved based on the first few chapters without
bothering to finish the book. Had it proceeded to the end, the answers to its questions would
have been revealed to the extent they were capable of ever being revealed. The book was
complete. There would have been nowhere else to look.
¶ 30 The circuit court did not make this same mistake. Rather than focus on discrete and limited
aspects of the voluminous record, it reviewed all of the evidence, as we did in McClure and as
the appellate court did in Rodarmel, Menssen, and Gillenwater; it applied the “clear and
convincing” standard of proof we found applicable where, as here, a plaintiff seeks to establish
a civil conspiracy based on circumstantial evidence (McClure, 188 Ill. 2d at 134); and it
concluded that plaintiffs could not prevail as a matter of law.
¶ 31 Contrary to the appellate court’s view, this approach does not “stand[ ] the concept of
summary judgment on its head.” 2018 IL App (5th) 160239, ¶ 23. Rather, it is entirely
consistent with the recognition that the use of summary judgment “in a proper case is to be
encouraged and its benefits inure not only to the litigants, in the saving of time and expenses,
but to the community in avoiding congestion of trial calendars and the expenses of unnecessary
trial.” Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 819 (1981).
¶ 32 In sum, the appellate court should not have set aside the circuit court’s judgment without
undertaking a similarly thorough review. It must now do so. If the circuit court is correct that
the evidence is insufficient as a matter of law to impose liability on defendants based on civil
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conspiracy, as other courts have so often concluded in the past, remanding to the circuit court
for further proceedings, as the appellate court did, serves no valid purpose. It merely wastes
judicial resources and needlessly prolongs the ultimate disposition of this litigation.
¶ 33 In reaching this resolution, we hasten to add that we express no view on the merits of the
Joneses’ appeal to the appellate court. While history and precedent present a steep hill for those
plaintiffs to climb, nothing in this disposition should be read as foreclosing the possibility that
their appeal may prove meritorious. Our point is simply that, in conducting its review, the
appellate court must undertake a complete analysis in accordance with the correct legal
standards articulated in our decisions and other established case law.
¶ 34 CONCLUSION
¶ 35 For the foregoing reasons, the judgment of the appellate court is reversed, and the cause is
remanded to the appellate court for further proceedings consistent with this opinion.
¶ 36 Reversed and remanded.
¶ 37 JUSTICE KILBRIDE, dissenting:
¶ 38 In this case, the appellate court concluded that genuine issues of material fact exist on
whether Owens-Illinois, Inc., and Pneumo Abex LLC conspired with other companies to
conceal information about the harmful effects of exposure to asbestos. In my view, the
appellate court did not err in holding that genuine issues of material fact remain on this
question, thus precluding summary judgment in favor of Owens-Illinois and Pneumo Abex.
Accordingly, I respectfully dissent from the majority’s decision reversing the appellate court’s
judgment.
¶ 39 Summary judgment is appropriate when “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 a judgment as a matter of law.” 735 ILCS 5/2-
1005(c) (West 2016). Summary judgment is a drastic means of disposing of litigation, and it
should be granted only when the movant’s right to judgment is clear and free from doubt.
Seymour v. Collins, 2015 IL 118432, ¶ 42. A motion for summary judgment should be denied
if there is a dispute as to a material fact or if reasonable people may draw divergent inferences
from the undisputed material facts. Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22.
¶ 40 A civil conspiracy is “ ‘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, the plaintiff must allege both an agreement and a tortious act in furtherance
of that agreement. McClure, 188 Ill. 2d at 133 (citing Adcock v. Brakegate, Ltd., 164 Ill. 2d 54,
62-64 (1994)). A conspiracy is almost never established by direct proof. McClure, 188 Ill. 2d
at 134 (citing Walsh v. Fanslow, 123 Ill. App. 3d 417, 422 (1984)). Rather, it usually must be
proven using “ ‘circumstantial evidence and inferences drawn from evidence, coupled with
common-sense knowledge of the behavior of persons in similar circumstances.’ ” McClure,
188 Ill. 2d at 134 (quoting Adcock, 164 Ill. 2d at 66). The evidence of a civil conspiracy must
be clear and convincing if it is shown by circumstantial evidence. McClure, 188 Ill. 2d at 134.
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¶ 41 I believe the appellate court correctly applied those legal principles in holding that the trial
court erred in granting summary judgment in favor of Pneumo Abex and Owens-Illinois.
Previous cases have provided a substantial amount of evidence weighing on the question of a
civil conspiracy. See, e.g., McClure, 188 Ill. 2d 102; Gillenwater v. Honeywell International,
Inc., 2013 IL App (4th) 120929; Menssen v. Pneumo Abex Corp., 2012 IL App (4th) 100904;
Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463. In my view, a reasonable person
could conclude from that vast collection of evidence that defendants conspired with other
companies to suppress information about the health hazards of asbestos. See McClure, 188 Ill.
2d at 154-57 (Harrison, J., dissenting) (concluding that the evidence presented in McClure was
sufficient to support the jury’s finding of a civil conspiracy to suppress information about the
health hazards of asbestos).
¶ 42 Furthermore, plaintiffs have submitted additional evidence in this case on the Saranac
Laboratory experiments. Those experiments are particularly important in this case. The
evidence presented previously on those experiments is described in McClure, Rodarmel, and
Menssen and is briefly summarized as follows.
¶ 43 In 1936, Pneumo Abex entered into an agreement with other companies to fund
experiments studying the effects of asbestos dust exposure. The agreement provided that Dr.
LeRoy U. Gardner, director of the Saranac Laboratory for the Study of Tuberculosis, would
perform the study. After several years of study, Dr. Gardner sent Vandiver Brown, general
counsel for asbestos producer Johns-Manville, a report stating that “certain evidence suggests
that asbestos may actually favor development of tumors in susceptible species.” Dr. Gardner
noted that, although the observations were “open to several criticisms,” they were “suggestive
but not conclusive evidence of a cancer stimulating action by asbestos dust.” The report
indicated 8 of the 11 mice that inhaled long fiber asbestos for 15 to 24 months developed
malignant tumors. Dr. Gardner expressed a desire to repeat the experiment under controlled
conditions “to determine whether asbestos actually favors cancer of the lung.”
¶ 44 Dr. Gardner applied for a federal research grant from the National Cancer Institute to
conduct a controlled experiment. In his application, Dr. Gardner described the results of his
study but admitted they “mean nothing” because the experiments were not intended to study
the carcinogenic effects of asbestos and were not conducted with proper controls. Dr.
Gardner’s application for funding was ultimately denied, and he died in 1946, before
completing a final report on the asbestos dust study.
¶ 45 In 1948, Saranac Laboratory completed a final report on Dr. Gardner’s scientific findings
and delivered it to Vandiver Brown at Johns-Manville. Brown then forwarded the report to the
rest of the sponsoring companies with the request that it be kept confidential. Brown invited
the companies to a meeting to discuss whether the report should be revised prior to publication.
Pneumo Abex asked Brown to represent it at that meeting.
¶ 46 Brown subsequently informed Pneumo Abex that the sponsoring companies had voted
unanimously to delete references to cancer and tumors in mice from the final report. Brown
asked Pneumo Abex to return its copy of the unrevised final report because the sponsoring
companies agreed it would be “unwise to have any copies of the draft report outstanding if the
final report is to be different in any substantial respect.” In 1951, Saranac Laboratory published
its report of Dr. Gardner’s experiments in the American Medical Association Archives of
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Industrial Hygiene and Occupational Medicine. The published version of the final report
deleted all references to tumors and cancer in mice.
¶ 47 In Rodarmel, the appellate court rejected the argument that the agreement among the
sponsoring companies to alter the final report on the Saranac Laboratory experiments
established a conspiracy to conceal the health hazards of asbestos. The Rodarmel court found
that the tumors in the group of mice did not constitute scientific evidence that asbestos caused
cancer and asserted “[i]t cannot be unlawful to hide information that is devoid of significance.”
Rodarmel, 2011 IL App (4th) 100463, ¶ 124. The appellate court concluded that “absent a
qualified expert opinion that the tumorous mice were scientific evidence of a relationship
between asbestos and cancer *** Abex’s agreement to conceal information about the tumorous
mice was not an agreement to perform an unlawful act and hence was not a conspiratorial
agreement.” Rodarmel, 2011 IL App (4th) 100463, ¶ 128. The appellate court followed that
same reasoning in Menssen, 2012 IL App (4th) 100904, ¶ 51, holding that, “without more, [the
plaintiff] failed to provide evidence that Abex agreed with other companies to suppress or
misrepresent the health hazards of asbestos.” Thus, the conclusion that the Saranac Laboratory
experiments were not scientifically reliable was critical to the appellate court’s holdings in
Rodarmel and Menssen.
¶ 48 In this case, the record includes new information on the potential scientific validity of the
Saranac Laboratory experiments. Plaintiffs provided the deposition testimony of Dr. Arthur
Frank, an expert in asbestos diseases, that the Saranac Laboratory experiment results would
have been “significant scientific evidence on the issue of whether there was a relationship
between asbestos and cancer.” Additionally, plaintiffs presented a letter written by Dr. Kenneth
Lynch to Metropolitan Life Insurance Company in 1947, stating he reviewed Dr. Gardner’s
outline and found it “valuable and publishable as it stands.”
¶ 49 This additional evidence weighs on the decision of Pneumo Abex and the other sponsoring
companies to delete from the report any reference to tumors and cancer in mice and on their
joint effort to ensure no copies of the original report referencing cancer and tumors remained
outstanding. Given the new evidence on the potential scientific validity of the Saranac
Laboratory experiments, the agreement to delete references to cancer and tumors from the final
published report may be more readily seen as a conspiracy to suppress valid evidence of the
potential health hazards of asbestos exposure. The additional evidence may also cast a new
light on the parallel industry actions to suppress the health hazards of asbestos presented in this
and previous cases. See Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 308 (2008) (in
reviewing a summary judgment disposition, the court must consider all evidence together and
construe it liberally in favor of the nonmoving party). Overall, I believe a reasonable person
could infer from the new evidence on the scientific validity of the Saranac Laboratory
experiments, along with all the other evidence of parallel industry conduct presented by
plaintiffs in this and previous cases, that Pneumo Abex conspired with other companies to
conceal information about the potential health risks of asbestos.
¶ 50 Our appellate court has also held that clear and convincing evidence shows Owens-Illinois
and Owens Corning entered into a conspiratorial agreement to sell Kaylo insulation containing
asbestos without providing a warning about the health risks posed by that product. Gillenwater
v. Honeywell International, Inc., 2013 IL App (4th) 120929, ¶ 96. Owens-Illinois and Owens
Corning entered into a distributorship agreement in 1953, providing that Owens Corning would
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market the Kaylo insulation manufactured by Owens-Illinois. Gillenwater, 2013 IL App (4th)
120929, ¶ 55. The appellate court explained that “[d]uring the period of the distributorship
agreement, 1953 to 1958, both companies knew that Kaylo dust was potentially a respiratory
hazard, that it might scar the lungs of people who breathed it,” and the distributorship
agreement implied an understanding that the companies would conceal the potential dangers
of Kaylo. Gillenwater, 2013 IL App (4th) 120929, ¶ 96. Indeed, silence by the two companies
about the known dangers posed by asbestos “was essential to the marketing and selling of
Kaylo.” Gillenwater, 2013 IL App (4th) 120929, ¶ 96.
¶ 51 According to the Gillenwater court, Owens-Illinois withdrew from the conspiracy in 1958,
when it sold its Kaylo insulation division to Owens Corning. Gillenwater, 2013 IL App (4th)
120929, ¶¶ 107-18. The appellate court stated “[t]he record gives no basis for supposing that,
after 1958, Owens-Illinois cared whether Owens-Corning sold any more Kaylo.” Gillenwater,
2013 IL App (4th) 120929, ¶ 107.
¶ 52 While I agree that the evidence establishes a conspiracy between Owens-Illinois and
Owens Corning, I believe the issue of whether and when Owens-Illinois withdrew from that
conspiracy presents a question of material fact inappropriate for summary judgment. The
appellate court observed that plaintiffs presented evidence indicating the two companies
“remained close” following the sale of the Kaylo division in 1958. 2018 IL App (5th) 160239,
¶ 17. For instance, Owens-Illinois continued to provide packaging for Kaylo insulation until
the late 1960s, and Owens-Illinois continued to have a large financial stake in Owens Corning.
Additionally, Owens-Illinois continued to use asbestos in its own factories during the 1970s.
Given those facts, Owens-Illinois certainly would have continued to benefit from the
agreement to conceal information about the health hazards of asbestos exposure.
¶ 53 In my view, summary judgment is inappropriate here because plaintiffs presented sufficient
evidence to create a disputed question of fact on whether and when Owens-Illinois withdrew
from the conspiracy to conceal information about the health hazards of asbestos. The totality
of the evidence, when viewed in the light most favorable to plaintiffs, could be sufficient to
establish a conspiracy by clear and convincing evidence continuing through the time of
plaintiff’s alleged initial asbestos exposure in the 1960s.
¶ 54 In sum, defendants’ right to judgment on plaintiffs’ claims is not clear and free from doubt.
Based on the voluminous facts presented in this case, a reasonable person could determine that
defendants conspired with other companies to suppress information about the health hazards
of asbestos. The drastic remedy of summary judgment is, therefore, not an appropriate means
of disposing of this litigation. See Seymour, 2015 IL 118432, ¶ 42. I would affirm the appellate
court’s reversal of the grant of summary judgment in favor of Owens-Illinois and Pneumo
Abex. Accordingly, I respectfully dissent.
¶ 55 JUSTICES THOMAS and THEIS took no part in the consideration or decision of this case.
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