McClure v. Owens Corning Fiberglas Corp.

• Decision Date: 21 October 1999
• Docket Number: No. 86118, No. 86192.
• Citation: 241 Ill.Dec. 787,188 Ill.2d 102,720 N.E.2d 242
• Parties: Delores McCLURE, Indiv. and as Special Adm'r of the Estate of Robert McClure, Deceased, et al., Appellees, v. OWENS CORNING FIBERGLAS CORPORATION et al., Appellants.
• Court: Illinois Supreme Court

720 N.E.2d 242

188 Ill.2d 102

241 Ill.Dec. 787

Delores McCLURE, Indiv. and as Special Adm'r of the Estate of Robert McClure, Deceased, et al., Appellees, v. OWENS CORNING FIBERGLAS CORPORATION et al., Appellants.

Nos. 86118, 86192.

Supreme Court of Illinois.

October 21, 1999.

Catherine M. Masters, Joseph J. O'Hara, Jr., Schiff, Hardin & Waite, Chicago, for Owens-Illinois, Inc.

James Wylder, Walker & Wylder, Ltd., Bloomington, for Delores McClure.

Michael J. Cronin, Tressler, Soderstrom, Maloney & Priess, Chicago, for Amicus Curiae, Illinois Association of Defense Trial Counsel.

Michael Resis, O'Hagan, Smith & Amundsen, Bruce R. Braun, Rachel M. Janutis, Winston & Strawn, Chicago, for Owens Corning Fiberglas Corporation.

Hugh C. Griffin, Lord, Bissell & Brook, Chicago, for Amicus Curiae, Product Liability Advisory Council.

Mark S. Killion, Illinois Manufacturers' Assn., Springfiled, for Amicus Curiae, Illinois Manufacturers Association.

John L. Morel, Attorney at Law, Bloomington, for other interested parties.

Justice McMORROW delivered the opinion of the court:

This case involves three actions by three different plaintiffs, Lois Bicknell (Bicknell), Vernadine Thacker (Thacker), and Delores McClure (McClure), against defendant Owens Corning Fiberglas Corporation (Owens Corning). McClure also named Owens-Illinois, Inc. (Owens-Illinois), as a defendant in her suit. All three plaintiffs' complaints were based on injuries allegedly resulting from their husbands' exposure to asbestos while employed by the Union Asbestos and Rubber Company (Unarco) at its Bloomington, Illinois, plant. Neither Unarco nor Johns-Manville Corporation (Johns-Manville), a supplier of asbestos used in the Bloomington plant, is named as a defendant in plaintiffs' complaints. In addition, plaintiffs alleged no exposure to Owens Corning or Owens-Illinois products and no employment relationship between defendants and their husbands. Nevertheless, plaintiffs claimed that defendants were responsible for the injuries alleged in their complaints because defendants engaged in a civil conspiracy with Unarco, Johns-Manville, and other companies to suppress information concerning the harmful health effects of asbestos exposure and to falsely represent that it was safe for people to work in close proximity to asbestos-containing materials.

At plaintiffs' request, these three cases were consolidated for trial before the circuit court of McLean County. After trial, the jury returned verdicts in favor of Bicknell and Thacker against Owens Corning. The jury also found in favor of McClure against both Owens Corning and Owens-Illinois. The appellate court affirmed the judgments entered on these verdicts. 298 Ill.App.3d 591, 232 Ill.Dec. 681, 698 N.E.2d 1111. Owens-Illinois then filed a petition for leave to appeal the judgment in the McClure case, and Owens Corning filed a petition for leave to appeal the judgments in all three cases. This court granted defendants' petitions (177 Ill.2d R. 315) and allowed plaintiffs' motion to consolidate defendants' appeals. In addition, we have permitted amicus curiae briefs to be filed by the Illinois Association of Defense Trial Counsel, the Product Liability Advisory Council, Inc., and the Illinois Manufacturers' Association. 155 Ill.2d R. 345. We reverse on the basis that the evidence was insufficient to show that either defendant engaged in the alleged civil conspiracy with Unarco or Johns-Manville.

BACKGROUND

In her complaint against Owens Corning and Owens-Illinois,¹ Delores McClure, individually and as special administrator of the estate of Robert McClure, alleged that her husband, Robert McClure, worked in Unarco's Bloomington plant during the period 1959-61. She asserted that, while her husband worked at the Bloomington plant, he was exposed to asbestos, including asbestos that Johns-Manville supplied to Unarco. According to McClure, as a result of this exposure, her husband contracted asbestosis and lung cancer, which caused his death.

McClure asserted that defendants, Unarco, and Johns-Manville knew of the health hazards associated with asbestos exposure and had a duty to warn their employees of these hazards and to provide a safe workplace. She further alleged that defendants conspired with Unarco, Johns-Manville, and other companies to "positively assert in a manner not warranted by the information possessed by the conspirators, that * * * it was safe for people to work with and in close proximity to asbestos and asbestos containing materials" and to "suppress information about the harmful effects of asbestos * * * causing asbestos workers to be and to remain ignorant of that information." In furtherance of this alleged conspiracy, the conspirators, inter alia, sold asbestos without warning of its adverse health effects, refused to warn their own employees and Robert McClure about these hazards, and altered and suppressed published reports concerning these hazards. According to McClure, these acts were proximate causes of Robert McClure's injuries and death.

Lois Bicknell's complaint against Owens Corning (Owens-Illinois was a defendant only in McClure's complaint)² contained essentially the same conspiracy allegations stated by McClure. Bicknell alleged that, like Robert McClure, her husband, Hugh Bicknell, worked in Unarco's Bloomington plant, although his period of employment was 1954 to 1955. According to Bicknell, as a result of her husband's exposure to asbestos while working in the plant, he developed pulmonary fibrosis and lung cancer, which resulted in his death. Also like McClure, Bicknell alleged that her husband's injuries and death were proximately caused by the acts taken in furtherance of the alleged conspiracy.

Vernadine Thacker's complaint against Owens Corning³ also contained the same allegations of conspiracy as McClure's complaint. Unlike McClure's and Bicknell's complaints, however, Thacker's complaint was based on her own exposure to asbestos. Thacker alleged that her husband, Charles Thacker, was employed at Unarco's Bloomington plant between 1952 and 1965. Thacker asserted that she was exposed to asbestos fibers carried home from the plant on her husband's person and clothing. According to Thacker, as a result of her exposure to these fibers, she developed pulmonary fibrosis and lung cancer. Thacker claimed that the acts taken in furtherance of the alleged conspiracy were a proximate cause of her injuries.

Prior to trial, the circuit court granted plaintiffs' motions to consolidate these three cases. It denied Owens-Illinois' motion requesting that it be tried separately from Owens Corning, although when evidence was admitted against only one of these parties during trial, the circuit court gave the jury a limiting instruction.

The trial was divided into two phases. All issues except for punitive damages were determined at the first phase. Defendants argue that the verdicts against them at the first phase must be overturned because there was insufficient evidence to support plaintiffs' conspiracy claims and because certain trial errors require reversal. We agree with defendants that the verdicts finding them liable for conspiracy cannot stand because the evidence does not permit a conclusion that they agreed with Unarco or Johns-Manville to conceal the health hazards of asbestos from employees. The following is a description of the evidence relevant to our disposition.

I. Medical and Scientific Literature

As circumstantial evidence of defendants' alleged knowledge of the health hazards of asbestos, plaintiffs presented evidence of the information about these hazards contained in medical and scientific publications during the relevant time periods. Prior to 1930, there were approximately 12 case reports linking asbestos and disease in Britain, the United States, and Europe. In 1930, the first epidemiological study relating asbestos exposure to disease was published. This study, which was published in Britain and the United States, showed that approximately 25% of the asbestos industry workers studied had lung scarring and that the scarring was more severe in individuals who worked in dustier areas and had been exposed to asbestos for longer amounts of time. To prevent such lung damage, the author recommended dust control, respiratory protection, periodic health examinations of the workers, and education of workers concerning the risks of asbestos.

In 1938, a bulletin issued by the United States Public Health Service reported the results of a study on asbestos textile manufacturing employees. The study connected asbestosis, which is irreversible lung scarring caused by asbestos fibers, to exposure to asbestos dust in concentrations greater than five million particles per cubic foot. The bulletin contained a recommendation that dust levels be kept below this threshold in order to prevent asbestosis.

In the 1940s and 1950s, the five million particles per cubic foot threshold limit value for asbestos was adopted by the American Conference of Governmental and Industrial Hygienists and by many states, including Ohio and New Jersey. In the 1950s, however, the five million particles per cubic foot asbestos dust limit was criticized in the medical and scientific literature because it was designed only to prevent asbestosis and did not account for the cancer risk associated with asbestos exposure. Nevertheless, the threshold limit value for asbestos remained the same until 1969, when it was lowered.

Beginning in the 1930s, case reports linking asbestos to lung cancer were published in the medical and scientific literature. In 1955, an epidemiological study involving asbestos and lung cancer was published in the British Journal of Industrial Medicine. This study found that asbestos manufacturing workers with asbestosis had 10 times the rate of lung cancer as the general population. In 1960, an epidemiological study linking asbestos exposure to mesothelioma, a cancer...