2018 IL App (5th) 160239
Ill. App. Ct.2018Background
- Plaintiffs John and Deborah Jones sued Pneumo Abex LLC (Abex) and Owens‑Illinois, Inc. for civil conspiracy, alleging manufacturers suppressed or misrepresented asbestos health risks and that John contracted lung cancer from occupational asbestos exposure.
- Abex manufactured asbestos-containing brake linings; Owens‑Illinois manufactured/distributed Kaylo insulation (1948–1958). John’s alleged exposure was to Johns‑Manville and Owens‑Corning products during his construction career beginning in 1969.
- Complaint alleged a broad industry conspiracy: editing/suppressing scientific reports (Drs. Gardner, Vorwald, Lanza), agreements to suppress research, control of trade press, misleading product labeling/advertising, and failure to warn employees/customers.
- Defendants moved for summary judgment arguing insufficient evidence of an agreement and relying on Fourth District cases (Rodarmel and Gillenwater). Trial court granted summary judgment for defendants.
- The appellate court reviewed de novo, concluded plaintiffs had produced evidence raising genuine issues of material fact from which a trier of fact could, by clear and convincing evidence, find both an agreement and overt acts in furtherance, and reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was an agreement among manufacturers to suppress/misrepresent asbestos hazards | Evidence of agreements, underwriting studies, requests to delete cancer references, long‑running coordination (e.g., Abex–Johns‑Manville; Owens‑Illinois–Owens‑Corning) supports inference of an agreement | No direct proof of a conspiratorial agreement; parallel conduct insufficient | Reversed: factual disputes exist permitting a trier of fact to infer an agreement by clear and convincing evidence |
| Whether defendants committed tortious acts in furtherance of any agreement | Identified overt acts (editing reports, suppressing publications, misleading labeling/ads, failing to warn) connected to plaintiffs’ injuries | Acts are either insufficiently connected in time or attributable to other companies; some prior cases found no actionable conspiracy | Reversed: genuine disputes about overt acts exist for the jury to resolve |
| Proper evidentiary standard at summary judgment (must plaintiffs prove conspiracy by clear and convincing evidence to survive?) | Plaintiffs need not prove by clear and convincing evidence at summary judgment, only present facts that could let a trier of fact so find | Defendants relied on outcomes in other cases decided under n.o.v. standard | Held for plaintiffs: at summary judgment plaintiffs must only present evidence that would allow a trier of fact to find conspiracy by clear and convincing evidence; they met that threshold to create triable issues |
| Whether trial court properly relied on Fourth District n.o.v. decisions (Rodarmel, Gillenwater) to grant summary judgment | Plaintiffs argued those cases applied a different procedural/standard posture (judgment n.o.v.) and are not controlling at summary judgment | Trial court treated those decisions as dispositive and granted summary judgment | Reversed: appellate court held the trial court improperly applied n.o.v. precedent at summary judgment and impermissibly weighed evidence |
Key Cases Cited
- McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102 (Ill. 1999) (elements of civil conspiracy; agreement and tortious act; circumstantial proof must be clear and convincing)
- Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12 (Ill. 1998) (definition of civil conspiracy)
- Adcock v. Brakegate, Ltd., 164 Ill. 2d 54 (Ill. 1994) (intentional participation in common scheme required)
- General Casualty Ins. Co. v. Lacey, 199 Ill. 2d 281 (Ill. 2002) (summary judgment standards)
- Robidoux v. Oliphant, 201 Ill. 2d 324 (Ill. 2002) (purpose of summary judgment is to determine existence of triable issues, not resolve facts)