Jones v. Pneumo Abex LLC

• Decision Date: 19 December 2019
• Docket Number: 124002,Docket Nos. 123895
• Citation: 2019 IL 123895,160 N.E.3d 881,442 Ill.Dec. 701
• Parties: John JONES et al., Appellees, v. PNEUMO ABEX LLC et al., Appellants.
• Court: Illinois Supreme Court

2019 IL 123895

160 N.E.3d 881

442 Ill.Dec. 701

John JONES et al., Appellees,

v.PNEUMO ABEX LLC et al., Appellants.

Docket Nos. 123895

124002

Supreme Court of Illinois.

Opinion filed December 19, 2019.

JUSTICE KARMEIER delivered the judgment of the court, with 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, 241 Ill.Dec. 787, 720 N.E.2d 242 (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, 354 Ill.Dec. 6, 957 N.E.2d 107 ; Menssen v. Pneumo Abex Corp. , 2012 IL App (4th) 100904, 363 Ill.Dec. 543, 975 N.E.2d 345 ; Gillenwater v. Honeywell International, Inc. , 2013 IL App (4th) 120929, 375 Ill.Dec. 123, 996 N.E.2d 1179 (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, 424 Ill.Dec. 818, 109 N.E.3d 932. 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

¶ 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;

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 coconspirators, 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 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...