Jones v. Pneumo Abex LLC

2019 IL 123895
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 123895, 124002)
JOHN JONES et al., Appellees, v. PNEUMO ABEX LLC et al., Appellants.
Opinion filed December 19, 2019.
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 Electric Corporation”; CSR, Inc.; CSR, Ltd.; Certainteed Corporation; Chicago
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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;
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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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;
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
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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
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defendants but sought relief for John’s spouse, Deborah, who claimed 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
could cause 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-
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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 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
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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.
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¶ 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 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
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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¶ 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. 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).
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¶ 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
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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.
¶ 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
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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 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.
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¶ 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)).
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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.
¶ 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
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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 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
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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.
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¶ 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 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.
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¶ 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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