Gillenwater v. Honeywell Int'l, Inc.

• Decision Date: 18 September 2013
• Docket Number: Docket No. 4–12–0929.
• Parties: Charles GILLENWATER and Donita Gillenwater, Plaintiffs–Appellants, v. HONEYWELL INTERNATIONAL, INC.; Pneumo Abex, LLC; and Owens–Illinois, Inc., Defendants–Appellees, and John Crane, Inc., Defendant.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 120929

996 N.E.2d 1179

375 Ill.Dec. 123

Charles GILLENWATER and Donita Gillenwater, Plaintiffs–Appellants,

v. HONEYWELL INTERNATIONAL, INC.; Pneumo Abex, LLC; and Owens–Illinois, Inc., Defendants–Appellees,andJohn Crane, Inc., Defendant.

Docket No. 4–12–0929.

Appellate Court of Illinois, Fourth District.

Sept. 18, 2013.

James Wylder and Andrew J. Kelly, both of Wylder Corwin Kelly LLP, of Bloomington, and J. Timothy Eaton (argued) and Patricia S. Spratt, both of Shefsky & Froelich, Ltd., of Chicago, for appellants.

Craig H. Zimmerman, Steven H. Hoeft, Colleen E. Baime (argued), and Michael W. Weaver, all of McDermott Will & Emery LLP, of Chicago, and Luke J. Mangan, of Polsinelli Shughart, P.C., of St. Louis, Missouri, for appellee Honeywell International, Inc.

Robert H. Riley, Matthew J. Fischer (argued),Neil Lloyd, and Joshua D. Lee, all of Schiff Hardin LLP, of Chicago, for appellee Owens-Illinois, Inc.

Craig L. Unrath, of Heyl, Royster, Voelker & Allen, and Robert W. Scott, of Swain, Hartshorn & Scott, both of Peoria, and Reagan W. Simpson (argued), of Yetter Coleman LLP, of Austin, Texas, and Amy Eikel, of King & Spalding, of Houston, Texas, for appellee Pneumo Abex, LLC.

Justice APPLETON delivered the judgment of the court, with opinion.

OPINION

¶ 1 One of the plaintiffs in this case, Charles Gillenwater, suffers from mesothelioma, which he contracted by inhaling airborne fibers from an asbestos-containing product. He brought this personal-injury action against defendants, Honeywell International, Inc. (Honeywell); Owens–Illinois, Inc. (Owens–Illinois); and Pneumo Abex, LLC (Abex), all manufacturers of asbestos-containing products. He sought compensation from them on the theory that they had been in a civil conspiracy with one another to conceal the respiratory dangers of asbestos. (He also sued a manufacturer of asbestos-containing gaskets, John Crane, Inc. (Crane), and won a verdict against that company. Crane, however, is not a party to this appeal. A separate appeal by Crane has been settled and dismissed.) Charles Gillenwater's alternate theory—alternate to the theory that the three defendants conspired together—was that Owens–Illinois entered into the same conspiracy with a nonparty, Owens–Corning Fiberglas Corporation (Owens–Corning), the manufacturer of Kaylo, an asbestos-containing insulation to which he also was exposed during his career as a pipefitter.

¶ 2 The other plaintiff in this case, Donita Gillenwater, is Charles Gillenwater's wife. She alleged a loss of consortium as a result of her husband's contracting mesothelioma.

¶ 3 The trial court entered summary judgment in defendants' favor on Donita Gillenwater's claims of loss of consortium. The case then went to trial on the remaining claims, and the jury returned a verdict in Charles Gillenwater's favor and against the three defendants. The jury awarded him compensatory damages in the amount of $9.6 million and also awarded him punitive damages in the amounts of $20 million against Honeywell, $40 million against Owens–Illinois, and $20 million against Abex.

¶ 4 Honeywell, Owens–Illinois, Abex, and Crane filed motions for judgment notwithstanding the verdict, and the trial court granted the motions by Honeywell, Owens–Illinois, and Abex but denied the motion by Crane. The court entered judgment in Charles Gillenwater's favor and against Crane in the amount of $8,425,000.

¶ 5 Charles Gillenwater appeals from the trial court's decision to grant the motions by Honeywell, Owens–Illinois, and Abex for judgment notwithstanding the verdict. Donita Gillenwater appeals from the summary judgment in favor of Honeywell, Owens–Illinois, and Abex on her claims of loss of consortium.

¶ 6 Looking at all the evidence in the light most favorable to Charles Gillenwater and drawing all reasonable inferences in his favor, we conclude that the evidence so overwhelmingly favors defendants that no verdict against them could ever stand. As for Donita Gillenwater's claims of loss of consortium, defendants were entitled to summary judgment because they owed her no duty, given that she was not yet married to Charles Gillenwater at the time he was exposed to asbestos-containing products. Therefore, we affirm the trial court's judgment.

¶ 7 I. BACKGROUND

¶ 8 A. Evidence of Charles Gillenwater's Exposure to Kaylo

¶ 9 Charles Gillenwater, who was 58 at the time of the trial, became a pipefitter in 1972 and continued in that profession until his retirement in 2007 or 2008. His apprenticeship lasted from 1972 to 1977, and during that period he and another apprentice pipefitter, Bill Tay, worked on many jobs together: Bridgestone/Firestone, for instance, and Moulton, Manchester, and Hewett Halls at Illinois State University. There were hundreds of feet of pipe in these places.

¶ 10 Tay testified that, typically, as he and Gillenwater installed new pipes to carry steam or hot water, they used gaskets manufactured by Crane. These gaskets contained asbestos. Also, insulators employed by a contractor named Sprinkmann would be right behind Tay and Gillenwater, covering the pipes with a chalky white insulation that gave off clouds of dust when the insulators sawed it into pieces. In his testimony, Gillenwater likewise recalled the chalky, dusty white insulation, the fragments of which everyone, including the pipefitters, helped pick up during cleanup. According to Tay, the insulation “normally” was “an Owens–Corning brand,” and Sprinkmann brought this insulation to the various jobsites where he and Gillenwater worked.

¶ 11 Sprinkmann was a thermal insulation contractor, and Ellis Carlton testified he worked for Sprinkmann from 1958 to 1994. By the early 1960s, Carlton was promoted to a position in which he was responsible for ordering all the materials for Sprinkmann.

¶ 12 According to Carlton, the two types of pipe covering that Sprinkmann used the most in the 1970s were Kaylo, sold by Owens–Corning, and Thermobestos, sold by Johns–Manville Corporation (Johns–Manville). Both were a “white chalky fibrous” insulation, “very dusty,” that would “discolor your clothes” if “you brushed up against it.” He testified that in the 1960s and early 1970s both Kaylo and Thermobestos contained asbestos, although Sprinkmann also carried insulation for cold-water pipes that was asbestos-free. It was not until 1976 or 1977 that Sprinkmann eliminated all asbestos-containing products from its warehouse.

¶ 13 Carlton testified that whenever representatives of Johns–Manville and Owens–Corning contacted him for the purpose of selling insulation to Sprinkmann, they never mentioned to him that the insulation was hazardous.

¶ 14 Likewise, Gillenwater testified that at no time during his apprenticeship was he informed that the insulation Sprinkmann installed on hot-water pipes at the jobsites where he worked contained asbestos. It was not until the 1980s that he even learned of the dangers of asbestos.

¶ 15 According to Tay, “nobody had a clue” that the insulation contained asbestos. And until the late 1980s or early 1990s, he, too, was unaware that asbestos was harmful.

¶ 16 At trial, it was undisputed that Gillenwater's mesothelioma had resulted from his inhalation of airborne fibers of asbestos.

¶ 17 B. Circumstantial Evidence Offered To Prove a Conspiracy

¶ 18 For some three days in the jury trial, plaintiffs presented evidence that, for several decades, from the early 20th century onward, the three defendants (Owens–Illinois, Honeywell, and Abex) knew asbestos was dangerous to breathe and that, despite such knowledge, they continued making asbestos-containing products without adequately protecting their employees from asbestos dust and they continued concealing the dangers of asbestos from their employees and the public. We need not specifically recount all that evidence. Suffice it to say, the record contains evidence that all three defendants had been contemporaneously committing one or more of the same types of wrongdoing: inadequately protecting their employees from asbestos dust, keeping quiet about the dangers of asbestos or affirmatively concealing or downplaying the dangers, and continuing to use asbestos in their products, without any adequate warning, even after the human cost had become evident.

¶ 19 But was there any evidence that the three defendants intentionally “planned, assisted[,] or encouraged” Owens–Corning's wrongdoing against Charles Gillenwater, i.e., its selling to Sprinkmann, without adequate warning, asbestos-containing Kaylo insulation, the dust of which Gillenwater inhaled at jobsites while it was being installed? Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 62, 206 Ill.Dec. 636, 645 N.E.2d 888 (1994); see also McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 133, 241 Ill.Dec. 787, 720 N.E.2d 242 (1999) (“Civil conspiracy is an intentional tort* * *.”).

¶ 20 It is difficult to see how two of the defendants, Honeywell and Abed x, could be found to have intentionally assisted or encouraged Owens–Corning in its own wrongdoing against Gillenwater, considering that, in the statement of facts in their brief, plaintiffs do not mention that Honeywell and Abex ever interacted with Owens–Corning in any way. Honeywell and Abex appear to be nothing but bystanders, committing wrongs that had nothing to do with Gillenwater.

¶ 21 Plaintiffs describe, however, some interaction or ties between Owens–Illinois and Owens–Corning from the 1930s to the 1950s.

¶ 22 1. Persons Serving as Directors on the Boards of Both Owens–Illinois and Owens–Corning

¶ 23 From 1938 to 1948, Owens–Illinois and Owens–Corning had some of the same directors. The number of directors they had in common varied. Some years it was as few as two directors, and other years it was as many as four directors. Some of these common directors were executive officers of one company or the other.

¶ 24 One of the exhibits that plaintiffs cite in their brief, plaintiffs' exhibit No. 710A,...