McClure v. Owens Corning Fiberglas Corp.

• Decision Date: 11 August 1998
• Docket Number: Nos. 4-97-0424,4-97-0458 and 4-97-0459,s. 4-97-0424
• Citation: 298 Ill.App.3d 591,698 N.E.2d 1111
• Parties: , 232 Ill.Dec. 681 Delores McCLURE, Individually and as Special Administrator of the Estate of Robert McClure, Deceased, Plaintiffs-Appellees, v. OWENS CORNING FIBERGLAS CORPORATION and Owens-Illinois, Inc., Defendants-Appellants (Illinois Central Railroad Company, Defendant). Lois BICKNELL, Individually and as Special Administrator of the Estate of Hugh Bicknell, Deceased, Plaintiffs-Appellees, v. OWENS CORNING FIBERGLAS CORPORATION, Defendant-Appellant (Illinois Central Railroad Company, Defendant). Vernadine THACKER, Plaintiff-Appellee, v. OWENS CORNING FIBERGLAS CORPORATION, Defendant-Appellant. cons. Fourth District
• Court: United States Appellate Court of Illinois

Page 1111

698 N.E.2d 1111

298 Ill.App.3d 591, 232 Ill.Dec. 681

Delores McCLURE, Individually and as Special Administrator of the Estate of Robert McClure, Deceased, Plaintiffs-Appellees, v. OWENS CORNING FIBERGLAS CORPORATION and Owens-Illinois,

Inc., Defendants-Appellants (Illinois Central

Railroad Company, Defendant).

Lois BICKNELL, Individually and as Special Administrator of

the Estate of Hugh Bicknell, Deceased, Plaintiffs-Appellees, v. OWENS CORNING FIBERGLAS CORPORATION, Defendant-Appellant

(Illinois Central Railroad Company, Defendant).

Vernadine THACKER, Plaintiff-Appellee, v. OWENS CORNING FIBERGLAS CORPORATION, Defendant-Appellant.

Nos. 4-97-0424, 4-97-0458 and 4-97-0459 cons.

Appellate Court of Illinois,

Fourth District.

Argued June 17, 1998.

Decided Aug. 11, 1998.

James R. Thompson, Bruce R. Braun (argued), Gregory G. Volan, Winston & Strawn, Chicago, John L. Morel, John L. Morel, P.C., Bloomington, for Owens Corning Fiberglas Corp. in Nos. 4-97-0424, 4-97-97-0458 and 4-97-0459.

Joseph J. O'Hara Jr., Matthew J. Fischer, Catherine M. Masters (argued), Schiff, Hardin & Waite, Chicago, for Owens-Illinois, Inc. in No. 4-97-0424.

James Walker, James Walker, Ltd., Bloomington, James R. Wylder (argued), for Delores McClure in No. 4-97-0424.

James Walker, James Walker, Ltd., Bloomington, James R. Wylder (argued), for Lois Bicknell in No. 4-97-0458.

James Walker, James Walker, Ltd., Bloomington, James R. Wylder (argued), for Vernadine Thacker in No. 4-97-0459.

Justice COOK delivered the opinion of the court:

The complaints in these consolidated cases alleged that defendants, Owens Corning Fiberglas Corporation (OCF) and Owens-Illinois, Inc. (OI), conspired with other asbestos manufacturers not to warn of the health hazards of asbestos exposure, resulting in injury to asbestos workers who were not employed by either OCF or OI. The jury found OCF liable to plaintiff Lois Bicknell for the death of her husband, Hugh Bicknell, and awarded damages of $225,000; found OCF liable to plaintiff Vernadine Thacker and awarded damages of $200,000; and found OCF liable to plaintiff Delores McClure for the death of her husband, Robert McClure, and awarded damages of $400,000. OI was a defendant only in the McClure case, where the jury found OI equally liable with OCF. Defendants appeal. We affirm.

All three plaintiffs were exposed to asbestos at a plant in Bloomington, Illinois, owned by Union Asbestos and Rubber Company (Unarco). Hugh Bicknell worked at the plant from 1954-55, and Robert McClure from 1959-61. Vernadine Thacker was allegedly exposed to asbestos when it was brought into her home on the clothes of her husband and son, while they worked at the plant between 1952 and 1965. The Unarco plant manufactured various products using raw asbestos supplied by Johns-Manville Corporation. An industrial hygiene survey taken of the Unarco plant by OCF in 1970, when it purchased the plant, stated the atmospheric conditions of the plant were "unbelievably bad." While plaintiffs worked at the plant Unarco did not implement industrial hygiene practices, did not use effective dust collecting equipment, did not monitor the level of asbestos in the plant, and did not warn its employees of the potential hazards of asbestos.

From 1948 until 1958, OI manufactured a lightweight insulation product called Kaylo, which contained approximately 15% asbestos fibers. OI manufactured Kaylo at its plants in Berlin and Sayreville, New Jersey. Before it began production of Kaylo, OI commissioned the Saranac Laboratory (Saranac), an independent laboratory that had previously done testing for other asbestos manufacturers, to determine whether Kaylo would be a hazard to production workers or users or installers. Contrary to expectations it was discovered that Kaylo could cause asbestosis and Saranac suggested that "every precaution should be taken to minimize exposure of industrial employees." Saranac was allowed to publish its test results without any interference by OI, but OI did not place any warning labels on its Kaylo products. OI argues that it observed good industrial hygiene practices in its plants, with dust collection and monitoring systems, keeping the plants clean, using respirators in certain areas, and giving its employees annual physicals, including chest X rays.

OI testified it warned its employees. Richard Grimmie testified he was told on his first day of work at the Berlin plant that asbestos was dangerous to breathe, and he later gave the same warning to new hires at the plant in his role as personnel manager. OI, however, could produce no written documents setting out its procedures for warning employees. Jerry Helser testified he was employed at the Berlin plant in the 1960s, after it was purchased by OCF, and he was never warned by OCF that asbestos could cause lung cancer or mesothelioma. OI and OCF employees have in fact contracted asbestos-related diseases.

OCF was formed in 1938 by several companies, one of which was OI. OCF began distributing Kaylo for OI in 1953, and in 1958 OCF purchased the Berlin plant from OI and began to manufacture Kaylo itself. At the time OCF purchased the plant, a dust study was performed that revealed concentrations as high as 91.8 million particles per cubic foot, conflicting with OI's assertion that it had followed good industrial hygiene practices at the plant. Defendants cite studies, accepted until approximately 1966, which concluded that keeping asbestos dust below a threshold limit value would prevent asbestos-related disease, but that threshold limit value was only 5 million particles per cubic foot. During the time it owned the Berlin plant (1958 to 1972), OCF did not warn its workers that asbestos could cause lung cancer or mesothelioma.

In 1970, OCF purchased the Unarco Plant in Bloomington. At that time the Unarco workers were being "severely exposed" to asbestos and the plant's ventilation was "totally inadequate." OCF argues that after it bought the plant, things changed, it instituted dust control, cleanup at the end of every shift, vacuum systems, respirators, X rays and company doctors. OCF continued to manufacture asbestos products at the former Unarco plant until 1972, but did not warn its employees of the risks of disease from exposure to asbestos until 1978. Defendants argue that the risks of asbestos were public knowledge before 1978, but the statement of the Secretary of the Department of Health and Human Services, Joseph Califano, warning of the health hazards of asbestos exposure, was not issued until April 1978.

It is undisputed that companies other than defendants engaged in a conspiracy to conceal the hazards of asbestos, beginning in the 1930s. Much of this evidence has been discussed in other cases. See, e.g., Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill.App.3d 165, 168-70, 225 Ill.Dec. 482, 683 N.E.2d 985, 988-89 (1997); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986). In 1935 the general counsel of Johns-Manville convinced a researcher, Dr. A.J. Lanza, to downplay the dangers of asbestosis. That same year the editors of Asbestos magazine proposed a story on asbestosis, but the story was objected to by Raybestos and Johns-Manville executives and was never published. In 1936 a group of asbestos manufacturers, including Johns- Manville, Raybestos, Unarco, and Abex, commissioned Saranac to conduct a study of asbestos, but they retained control over the study, and when Saranac's 1948 report showed findings of cancer and tumors those companies forced Saranac to remove the references before publication.

Among the items of evidence specifically connected to defendants are the following.

In 1941 OCF returned some published literature about asbestos to OI's industrial hygienist, Hazard.

A 1942 OCF internal memo proposed that OCF gather the "scores of publications in which the lung and skin hazards of asbestos are discussed" as a "weapon in reserve" for negotiating with the Asbestos Workers Union.

A 1956 advertisement and a 1959 brochure, bearing the names of both OCF and OI, stated that Kaylo was "non-toxic." OI asserts that it had no input into these documents.

In 1964, Johns-Manville advised OCF that it had decided to label certain products to indicate alleged health hazards of asbestos, and OCF questioned whether it should follow Johns-Manville's lead.

In 1968, the National Insulation Manufacturer's Association prepared a health and safety practices pamphlet for asbestos that made no mention of asbestosis, lung cancer, or mesothelioma. OCF and Johns-Manville employees helped draft that pamphlet.

In 1968, OCF participated in activities of the Insulation Industry Hygiene Council, and an internal OCF memo indicated that OCF's participation was to "limit the influence of Dr. Selikoff," who had been complaining of the hazards of asbestos.

A 1978 internal OCF memo indicated that OCF had contacted other companies, including OI, to determine how they would notify exposed workers in light of Secretary Califano's announcement. OI apparently did not respond.

In 1979, Johns-Manville called for a meeting of the asbestos companies to discuss "forces being brought to bear [which] raise serious questions as the viability of the industry." OCF attended the meeting, along with Unarco, Johns-Manville, Raybestos-Manhattan, and Abex. OI was invited but did not attend.

We first address plaintiffs' argument that OI failed to file a timely posttrial motion. OI sent its posttrial motion with a courier on the last day for filing but, due to a freak storm, the courier reached the courthouse after the clerk's office had closed. The timely filing of a posttrial motion stays the time for filing a notice of appeal and extends the time within which the trial court may act. Beck v. Stepp, 144 Ill.2d 232, 238, 162 Ill.Dec. 10, 579 N.E.2d 824, 827 (1991); see 155 Ill.2d R. 303(a)(1); 735 ILCS 5/2-1202(c) (West 1996). The trial court...