In re Estate of Holmes ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Estate of Holmes, 2011 IL App (4th) 100462
Appellate Court In re: the Estate of JEAN HOLMES, Deceased, ROGER HOLMES,
Caption Special Administrator, Plaintiff-Appellee, v. PNEUMO ABEX, L.L.C.,
Sued as Its Predecessor Pneumo Abex Corporation; and HONEYWELL
INTERNATIONAL, INC., Defendants-Appellants.
District & No. 4th District
Docket No. 4–10–0462
Filed June 22, 2011
Held In a wrongful death action alleging that decedent's husband exposed
(Note: This syllabus decedent to asbestos when he brought asbestos fibers home on his
constitutes no part of the clothes and person after working at an asbestos plant operated by a
opinion of the court but company that conspired with other entities to suppress information
has been prepared by the about the hazards of asbestos, the judgment for plaintiff was reversed,
Reporter of Decisions for since the evidence indicated that the danger of household or take-home
the convenience of the exposure to asbestos was not reasonably foreseeable until after
reader.) decedent's husband worked at the asbestos plant; therefore, defendants
did not owe a duty to decedent, the jury verdict could not stand, and the
trial court should have granted defendants’ motions for judgment n.o.v.
Decision Under Appeal from the Circuit Court of McLean County, No. 06–L–57; the
Review Hon. Scott Drazewski, Judge, presiding.
Judgment Reversed.
Counsel on Reagan W. Simpson (argued), of King & Spalding LLP, of Austin,
Appeal Texas, Amy Eikel, of King & Spalding, of Houston, Texas, Robert W.
Scott, of Swain, Hartshorn & Scott, and Karen L. Kendall, of Heyl,
Royster, Voelker & Allen, both of Peoria, and Raymond H. Modesitt,
of Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, of Terre Haute,
Indiana, for appellant Pneumo Abex, L.L.C.
Craig H. Zimmerman, Colleen E. Baime, Michael W. Weaver, and
Steven Hoeft (argued), all of McDermott Will & Emery LLP, of
Chicago, and Dennis J. Dobbels, of Polsinelli, Shalton, Welte &
Suelthaus, P.C., of Edwardsville, and Nicole C. Behnen, of Polsinelli,
Shalton, Welte & Suelthaus, P.C., of St. Louis, Missouri, for appellant
Honeywell International, Inc.
James Wylder (argued), of Wylder Corwin Kelly LLP, of Bloomington,
for appellee.
Panel JUSTICE TURNER delivered the judgment of the court, with opinion.
Justice Appleton concurred in the judgment and opinion.
Presiding Justice Knecht dissented, with opinion.
OPINION
¶1 In May 2006, plaintiff, Roger Holmes, as special administrator of the estate of Jean
Holmes, deceased, sued defendants, Pneumo Abex, L.L.C. (Abex), Honeywell International,
Inc. (Honeywell), and others to recover damages for wrongful death. In March 2009, a jury
found for plaintiff and assessed damages against defendants. In May 2009, defendants filed
posttrial motions, which the court denied.
¶2 On appeal, defendants argue they are entitled to judgment notwithstanding the verdict
because they owed no duty to decedent. We reverse.
¶3 I. BACKGROUND
¶4 In May 2006, plaintiff filed a complaint against defendants and others for the wrongful
death of his mother, Jean Holmes. The complaint alleged decedent’s husband, Donald
Holmes, worked at an asbestos plant operated by Union Asbestos & Rubber Company, later
known as Unarco Industries, Inc. (Unarco). During his employment, Holmes was exposed
to asbestos and brought the fibers home on his clothes and person, which exposed decedent
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to the asbestos. Decedent was diagnosed with mesothelioma, and she died in April 2006.
¶5 Plaintiff alleged defendants, along with Unarco, Johns-Manville Corporation (Johns-
Manville), Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.) (Raybestos),
Owens Corning, Owens-Illinois, and Metropolitan Life Insurance Company (MetLife),
conspired to suppress information about the harmful effects of asbestos and refused to warn
employees about the hazards of asbestos. Plaintiff claimed defendants’ agreements and acts
done in furtherance thereof proximately caused decedent’s injury and death.
¶6 Honeywell is the successor by merger to the Bendix Corporation (Bendix), which
manufactured automotive brakes and brake linings. At the relevant times, brake linings,
including those made by Bendix, were made with chrysotile asbestos. Bendix’s largest
supplier of raw chrysotile was Johns-Manville. Abex is the successor to a variety of entities,
the original being American Brake Shoe & Foundry Company. Abex made automotive brake
products and brake linings with chrysotile asbestos.
¶7 In February 2009, plaintiff’s case proceeded to a jury trial. As the parties are familiar
with the facts in this case, we will set forth only those facts necessary for the proper
disposition of this appeal. The parties do not dispute that decedent developed peritoneal
mesothelioma, which caused her death at age 93. Peritoneal mesothelioma has been
associated with exposure to asbestos. It was also undisputed that decedent’s only exposure
to asbestos fibers was on the work clothes of her husband, who worked at the Unarco
manufacturing plant in Bloomington from 1962 to 1963. The asbestos was supplied to
Unarco by Johns-Manville and Raybestos. It was undisputed that decedent and her husband
were never exposed to any Bendix or Abex products.
¶8 Plaintiff presented evidence that showed multiple companies, including Johns-Manville,
Raybestos, and Abex entered into a written agreement in 1936 with the Saranac Laboratory
(Saranac agreement) to sponsor research on industrial dusts. The evidence showed an
agreement among some of the companies to reduce or de-emphasize references to asbestosis
in a 1935 asbestos industry study prepared by Dr. Anthony Lanza of MetLife; to have
references to lung cancer in animals and asbestosis or cancer in humans deleted from a 1948
asbestos study prepared by Dr. Leroy Gardner and Dr. Arthur Vorwald of Saranac Laboratory
and to keep the study and its underlying data from being disseminated to the public; and to
prevent publication from 1935 to 1969 of any articles about the dangers of asbestos in
Asbestos magazine.
¶9 Evidence showed Unarco, Johns-Manville, Raybestos, and Abex did not change their
business practices concerning asbestos or attempt to warn their employees. Plaintiff also
presented evidence as to the activities of Owens Corning and Owens-Illinois. Owens-Illinois
received a 1948 report from Dr. Vorwald that concluded its asbestos-containing Kaylo pipe
and block insulation was a potentially hazardous material and capable of producing
asbestosis. In various journals, Owens-Illinois and Owens Corning sold Kaylo insulation
stating it was “nonirritating” and “nontoxic.”
¶ 10 Plaintiff’s expert, Dr. Barry Castleman, a consultant specializing in toxic-substances
control, testified he had no information that Bendix was aware of communications that were
taking place between Raybestos, Johns-Manville, and MetLife as to the study by Dr. Lanza.
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He was not aware of Bendix being involved in any effort to prevent Asbestos magazine from
publishing articles about asbestos. Dr. Castleman had no knowledge that Bendix ever knew
or approved of the Saranac agreement or that it had known about Dr. Gardner’s critical study.
He also had no knowledge of any communication between Bendix and Owens-Illinois or
Owens Corning.
¶ 11 Dr. Castleman testified Bendix was a member of the Friction Materials Standards
Institute (FMSI), a trade organization made up of brake-lining manufacturers. Joel Charm
testified Bendix and American Brake Shoe & Foundry Company had a single member of
their respective board of directors in common from 1930 to 1934. Bendix and Johns-
Manville also had a single member in common on their board of directors from 1959 to
1963.
¶ 12 William Dyson, an industrial hygienist, testified for defendants. He stated he prepared
a bibliography of household exposure articles and listed a 1960 article by Dr. J.C. Wagner
that spoke to mesothelioma as a result of take-home exposure to a family member.
¶ 13 Following closing arguments, the jury found for plaintiff and against both defendants.
The jury assessed $2,632,611.66 in damages. The trial court later entered an amended
judgment against defendants, jointly and severally, in the amount of $1,546,361.66. In May
2009, Honeywell and Abex filed posttrial motions, which the court denied. This appeal
followed.
¶ 14 II. ANALYSIS
¶ 15 Defendants argue they are entitled to judgment notwithstanding the verdict because no
relationship existed between them and decedent and thus no duty was owed to her. We agree.
¶ 16 “A judgment n.o.v. should be granted only when ‘all of the evidence, when viewed in its
aspect most favorable to the opponent, so overwhelmingly favors [a] movant that no contrary
verdict based on that evidence could ever stand.’ ” York v. Rush-Presbyterian-St. Luke’s
Medical Center, 222 Ill. 2d 147, 178, 854 N.E.2d 635, 652 (2006) (quoting Pedrick v. Peoria
& Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967)). A reviewing court
“cannot reweigh the evidence and set aside a verdict because different conclusions could
have been drawn.” Dukes v. Pneumo Abex Corp., 386 Ill. App. 3d 425, 444, 900 N.E.2d
1128, 1143 (2008). A trial court’s decision denying a motion for judgment n.o.v. is reviewed
de novo. Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 100, 923 N.E.2d 735, 746
(2010).
¶ 17 Our supreme court has stated the function of a civil-conspiracy claim is to extend
“liability for a tortious act beyond the active tortfeasor to individuals who have not acted but
have only planned, assisted, or encouraged the act.” McClure v. Owens Corning Fiberglas
Corp., 188 Ill. 2d 102, 133, 720 N.E.2d 242, 258 (1999) (citing Adcock v. Brakegate, Ltd.,
164 Ill. 2d 54, 62-63, 645 N.E.2d 888, 894 (1994)).
“To recover under a theory of civil conspiracy, a plaintiff must prove an agreement and
a tortious act committed in furtherance of that agreement. McClure, 188 Ill. 2d at 133-34,
720 N.E.2d at 258. The agreement must be knowingly and intentionally made. McClure,
188 Ill. 2d at 133, 720 N.E.2d at 258. However, a defendant who understands the general
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objectives of the conspiracy, accepts them, and agrees either explicitly or implicitly to
further those objectives is liable as a conspirator.” Dukes, 386 Ill. App. 3d at 444, 900
N.E.2d at 1143.
¶ 18 Defendants argue they owed no duty to disclose the hazards of asbestos to decedent and
therefore cannot be held liable for civil conspiracy. Further, defendants argue a duty should
not exist in so-called “household exposure,” “take-home exposure,” or “secondhand
exposure” cases, i.e., in situations where a worker is exposed to asbestos dust at a place of
employment and takes his or her clothes home, thereby exposing a household member to the
dust as well.
¶ 19 Whether a duty exists depends on whether the parties stood “in such a relationship to one
another that the law imposed upon the defendant an obligation of reasonable conduct for the
benefit of the plaintiff.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 436, 856 N.E.2d
1048, 1057 (2006). Our supreme court has stated that whether a relationship exists justifying
the imposition of a duty depends on the following four factors:
“(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the
magnitude of the burden of guarding against the injury, and (4) the consequences of
placing that burden on the defendant.” Marshall, 222 Ill. 2d at 436-37, 856 N.E.2d at
1057.
Whether a duty should be imposed involves considerations of public policy. Marshall, 222
Ill. 2d at 436, 856 N.E.2d at 1057; see also Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.
2d 278, 303, 730 N.E.2d 1119, 1134 (2000) (“the existence of a duty turns in large part on
public policy considerations”).
¶ 20 We note one appellate district in this state has found “employers owe the immediate
families of their employees a duty to protect against take-home asbestos exposure.” Simpkins
v. CSX Corp., 401 Ill. App. 3d 1109, 1119, 929 N.E.2d 1257, 1266 (2010). In that negligence
case, the decedent contracted mesothelioma following her exposure to asbestos fibers
brought home on the work clothes of her husband, who worked for B&O Railroad, the
defendants’ predecessor, from 1958 to 1964. Simpkins, 401 Ill. App. 3d at 1109, 929 N.E.2d
at 1258. The plaintiff argued Illinois law supported the finding of a duty to protect family
members from take-home asbestos exposure, while the defendants argued finding such a duty
would lead to unlimited liability. Simpkins, 401 Ill. App. 3d at 1113, 929 N.E.2d at 1261.
¶ 21 In reviewing the dismissal of the plaintiff’s complaint on appeal, the Fifth District relied
on two out-of-state cases that found the existence of a duty in similar circumstances.
Simpkins, 401 Ill. App. 3d at 1114-16, 929 N.E.2d at 1262-63 (citing Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 352 (Tenn. 2008), and Olivo v. Owens-Illinois, Inc., 895
A.2d 1143, 1149 (N.J. 2006)). In looking at whether a relationship existed between the
parties to establish a duty, the Fifth District looked at the four Marshall factors. Simpkins,
401 Ill. App. 3d at 1113-14, 929 N.E.2d at 1262. The court found the risk of harm to the
decedent was foreseeable at the time her husband worked for B&O Railroad and “the
likelihood of serious or fatal injury to anyone foreseeably exposed to asbestos is substantial
enough to warrant the imposition of a duty.” Simpkins, 401 Ill. App. 3d at 1117, 929 N.E.2d
at 1264. The court also found “the burden of guarding against take-home asbestos exposure
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is not unduly burdensome when compared to the nature of the risk to be protected against”
and the consequences of liability “will be inherently limited by the foreseeability of the
harm.” Simpkins, 401 Ill. App. 3d at 1118, 929 N.E.2d at 1265. The court concluded B&O
Railroad owed a duty of care to the spouse of one of its employees. Simpkins, 401 Ill. App.
3d at 1120, 929 N.E.2d at 1266.
¶ 22 Although acknowledging the Fifth District’s decision in Simpkins, defendants point to
other jurisdictions that have found no duty to household members in asbestos-related cases.
See Martin v. Cincinnati Gas & Electric Co., 561 F.3d 439, 446 (6th Cir. 2009); Rohrbaugh
v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995); Boley v. Goodyear Tire & Rubber
Co., 2010 Ohio 2550, ¶ 25, 929 N.E.2d 448, 453; Riedel v. ICI Americas Inc., 968 A.2d 17,
23 (Del. 2009); In re Certified Question from the Fourteenth District Court of Appeals of
Texas, 740 N.W.2d 206, 221 (Mich. 2007); CSX Transportation, Inc. v. Williams, 608 S.E.2d
208, 210 (Ga. 2005); In re New York City Asbestos Litigation, 840 N.E.2d 115, 122 (N.Y.
2005); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 462 (Tex. App. 2007); Adams v. Owens-
Illinois, Inc., 705 A.2d 58, 67 (Md. Ct. Spec. App. 1998).
¶ 23 In a recent premises-liability case here in Illinois, the Second District considered whether
the defendant company owed a duty to a person who did not have contact with the premises
but was allegedly injured by asbestos fibers that were carried home on contaminated
clothing. Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 1037, 909 N.E.2d 931, 933
(2009). The Second District found no duty existed because no relationship was established
as the decedent was never on the defendant’s premises. Nelson, 391 Ill. App. 3d at 1044, 909
N.E.2d at 938-39.
¶ 24 With these cases in mind, we find no duty was owed to decedent in this case. Even if we
were to find a relationship existed between the parties as the Fifth District found in Simpkins,
we would find no duty existed because of the lack of foreseeability in this case. To show the
injury was reasonably foreseeable here, plaintiff had to establish that when decedent’s
husband worked at Unarco from 1962 to 1963, it was reasonably foreseeable asbestos affixed
to a worker’s clothes during work would be carried home and released at levels that would
cause an asbestos-related disease in a household member. Here, however, plaintiff’s expert,
Dr. Castleman, testified the first epidemiological study showing an association between
disease and asbestos fibers brought home from the workplace was presented and published
by Gerald Newhouse and Hilda Thompson in October 1964.
¶ 25 Plaintiff responds by arguing literature going back as far as 1913 showed the potential
for disease as a result of workers bringing home toxic substances. However, plaintiff’s
evidence does not show defendants or the alleged conspirators in the industry were aware of
concrete evidence of take-home exposure of asbestos as opposed to the more prevalent
literature involving direct exposure such that it would be readily foreseeable that a danger
existed. See Martin, 561 F.3d at 445 (noting “other courts have found there was no
knowledge of bystander exposure in the asbestos industry in the 1950’s” and the expert’s
report conceded “that the first studies of bystander exposure were not published until 1965”);
In re Certified Question, 740 N.W.2d at 218 (finding the evidence showed “the risk of ‘take
home’ asbestos exposure was, in all likelihood, not foreseeable by defendant while [the
plaintiff] was working at defendant’s premises from 1954 to 1965”); Alcoa, 235 S.W.3d at
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461 (noting the first case study of nonoccupational exposure to asbestos was published in
1965). Moreover, the 1960 Wagner article that documented a single incident of household
exposure involved South Africans who worked in a crocidolite mine and/or lived in the
vicinity where the streets were paved with the tailings from the mine. Dyson stated “you
cannot say that is a clear-cut case of household contact mesothelioma.”
¶ 26 With the evidence of secondhand exposure that was known during the pertinent time
period in this case, it was not reasonably foreseeable that an employee working in the
confined spaces of an asbestos-dust-producing factory would leave that space, travel through
the fresh air of the outside world, and then expose those inside the home to whatever amount
of dust remained on his clothing at levels causing an asbestos-related malady.
¶ 27 Here, the evidence indicates the danger of household or take-home exposure to asbestos
was not reasonably foreseeable until after decedent’s husband worked at Unarco.
Accordingly, defendants did not owe a duty to decedent, and the jury verdict for plaintiff
cannot stand. Thus, the trial court should have granted defendants’ motions for judgment
n.o.v. Given our decision on this issue, we need not address defendants’ remaining
arguments.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we reverse the trial court’s judgment.
¶ 30 Reversed.
¶ 31 PRESIDING JUSTICE KNECHT, dissenting:
¶ 32 I agree with the decision in Simpkins, 401 Ill. App. 3d at 1119, 929 N.E.2d at 1266,
regarding duty, and therefore dissent. Jean Holmes’ husband worked at Unarco, where he
was exposed to asbestos. Asbestos dust and fibers came home with him on his work clothes
and person. Jean Holmes was exposed to asbestos dust and fibers, contracted mesothelioma,
and died.
¶ 33 The dangers of asbestos had been known for decades before Roger Holmes worked at
Unarco from 1962 to 1963. The first epidemiological study showing an association between
disease and asbestos fibers brought home from the workplace was not published until 1964.
However, it was foreseeable in 1962 to any thinking person that asbestos dust and fibers on
a worker’s clothing and body would be carried home. The worker’s wife might well embrace
her husband, or pat his back, and then wash his work clothes. That would expose the wife
to asbestos fibers and the risk of an asbestos-related disease. One does not require an
epidemiological study to recognize disease and death from asbestos exposure dating back to
the nineteenth century. No leap in logic is required to understand the spouse of a worker
would also be exposed, and with exposure comes the risk of disease.
¶ 34 The injury was foreseeable and the risk was high. The burden of guarding against take-
home asbestos exposure is no greater burden than the burden of protecting the employee
from initial exposure.
¶ 35 This is not a step toward unlimited liability. This does not involve a mail carrier, or a
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neighbor, or a friend at a local tavern who claims exposure from sitting next to a worker on
a bar stool. This was the worker’s wife who greeted him at the door, cooked his meals, and
washed the very clothes that brought poison into their home.
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