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08/14/97 LINDA VAN WINKLE v. (4-96-0382)

August 14, 1997


Appeal from Circuit Court of McLean County. No. 95L76, No. 94L308. Honorable W. Charles Witte, Judge Presiding.

Released for Publication September 12, 1997.

Honorable Robert J. Steigmann, P.j., Honorable James A. Knecht, J. - Concur, Honorable John T. McCullough, J. - Dissent. Presiding Justice Steigmann delivered the opinion of the court. Knecht, J., concurs. McCULLOUGH, J., dissents.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In March 1995, plaintiff Linda Van Winkle, individually and as special administrator of the estate of Donald Van Winkle (Van Winkle), sued defendant, Owens-Corning Fiberglas Corporation (OCF), alleging OCF conspired with one or more other manufacturers of asbestos products (John-Mansville Corporation (J-M), Union Asbestos and Rubber Company (Unarco), and Raybestos-Manhattan, Inc. (Raybestos)) to suppress and not warn of the health hazards of asbestos exposure, thereby causing harm to Van Winkle. In October 1995, plaintiffs Mark Hicks (Mark), as special administrator of the estate of Thelma Hicks (Hicks), and Coleman Hicks, Jr. (Coleman), filed an amended complaint against OCF alleging a similar conspiracy which caused Hicks' death. The trial court consolidated the cases for trial, and in November 1995, a jury returned a verdict for plaintiffs and against OCF. The jury awarded compensatory damages of $1.1 million to the Hickses and $2.7 million to the Van Winkles. The jury also awarded $500,000 in punitive damages to the Van Winkles.

OCF appeals, arguing that the trial court erred by (1) failing to respond adequately to a question the jury raised during deliberations; (2) taking judicial notice of certain facts; (3) excluding certain testimony; (4) refusing to allow certain exhibits to go to the jury; (5) refusing to give defendant's special interrogatories; and (6) giving plaintiffs' nonpattern instructions to the jury. OCF also argues (1) OCF cannot be held liable unless it joined the conspiracy before the occurrence of acts that caused Van Winkle's and Hicks' injuries because late-joining conspirators are not liable for prior acts of coconspirators; and (2) the evidence was insufficient to show a conspiracy.

Because we agree with OCF's first argument--namely, that the trial court erred in its response to the jury's question--we reverse and remand for a new trial.


Van Winkle worked from June 1959 until November 1959 at a Bloomington, Illinois, asbestos plant then owned by Unarco. It is undisputed that (1) during 1959, asbestos fibers were released into the air at the plant; (2) some of those fibers came from products manufactured by J-M; and (3) Van Winkle developed mesothelioma as a result of his exposure to asbestos at the Unarco plant. Coleman worked at the Unarco plant from January 1953 until September 1961. Hicks was exposed to asbestos fibers that Coleman brought home from the Unarco plant on his clothing and person; as a result of her exposure, Hicks developed mesothelioma, which caused her death in August 1995.

A. Events (Not Involving OCF) Occurring Prior to Decedents' Last Exposure

Much of the evidence presented at trial related to events that took place prior to Van Winkle's and Hicks' last exposures to asbestos, in November 1959 and September 1961, respectively. Some of that evidence related to events in which OCF was not involved, as follows. Dr. Barry Castleman, plaintiff's expert, testified that (1) during the 1930s and 1940s, J-M and Raybestos attempted to suppress asbestos research conducted by Saranac Laboratory (Saranac); and (2) during the 1930s, J-M and Raybestos tried to prevent Asbestos magazine from publishing information regarding asbestosis. In 1936, Saranac, J-M, Raybestos, Unarco, and other companies (not including OCF, which did not exist until 1938) reached an agreement that the companies would retain control over asbestos research they funded, including publication decisions. In 1950, the Quebec Asbestos Mining Association (of which OCF was not a member) withdrew its funding for asbestos cancer studies. In the mid-1950s, the Asbestos Textile Institute (of which OCF was not a member) refused to fund cancer studies.

B. Events (Involving OCF) Occurring Prior to Decedents' Last Exposure

Some preexposure evidence related to events involving OCF but not Raybestos, J-M, or Unarco. OCF internal memoranda dated February 1939 and July 1966 indicated an OCF policy of referring all inquiries regarding health matters to its legal department.

Dr. Jon Konzen, a former medical director of OCF, testified that by January 1942, OCF executives knew that airborne asbestos can cause asbestosis. In a January 1942 internal memorandum detailing OCF's strategy for 1942, an OCF employee proposed collecting articles identifying asbestos as a cause of asbestosis as a "weapon-in-reserve," for possible use in negotiations with the Asbestos Workers' Union.

In 1953, OCF began distributing Kaylo, an asbestos-containing product manufactured by Owens-Illinois. In October 1956, OCF and Owens-Illinois produced a brochure advertising Kaylo that described Kaylo as "nontoxic." In September 1959, OCF produced a similar brochure under its own name also describing Kaylo as "nontoxic." Konzen testified that OCF superiors knew the statement regarding Kaylo's toxicity was false.

C. Events (Involving OCF) Occurring After Decedents' Last Exposure

In 1964, J-M's medical director informed F.H. Edwards, an OCF employee, that J-M planned to place warnings on its shipping containers as of October 1964 but not on the products themselves. In August 1964, Edwards sent an internal memo to OCF's chief legal counsel, asking whether OCF should "follow the J-M lead" to protect itself from increasingly stringent health laws and third-party actions. OCF began labeling its own shipping containers in 1966. In a November 1965 internal memo, Edwards suggested OCF should find a way to prevent Dr. Selikoff (a physician who was attempting to publicize the health effects of asbestos) from affecting OCF's sales. Edwards also noted his "surprise and suspicions" about certain recent statements made by J-M's medical director.

In the late 1960s, an OCF employee and a J-M employee drafted a pamphlet for the National Manufacturers Association (NMA) (an organization to which OCF and Konzen belonged) regarding recommended health safety practices for handling asbestos-containing products. The pamphlet described asbestos as "potentially injurious." However, the pamphlet mentioned nothing about the dangers of breathing asbestos dust or that overexposure could occur without immediate symptoms. According to Castleman, minutes of a meeting of a November 1988 cement manufacturers' association (of which OCF was not a member) showed the pamphlet was published "with avoidance of liability in mind" and was not "intended *** to inform the workers *** about the hazards." Castleman also testified that the 1966 pamphlet is "probably the strongest evidence" OCF participated in the alleged conspiracy.

In April 1968, Konzen received an internal memorandum from OCF employee John Vyverberg, regarding a "position paper on fibrous glass," which attached a J-M report describing asbestos health dangers and asked Konzen's view about whether it would be "wise from a liability protection point of view [for OCF] to indicate that there might be 'potential hazards.'" That memo also indicated OCF's approach to date had been to indicate that "'all medical research to date indicates no hazard to health.'" In March 1970, Konzen advised Vyverberg not to attend an asbestos disease conference because it would be a "giant propaganda exercise" and would give "tacit approval to Selikoff."

A July 1968 internal memorandum informed OCF "top management" that Vyverberg had indicated "much care and consideration" went into developing the constitution and bylaws of the Insulation Industry Hygiene Council (the memo called it Selikoff's "brainchild"). The memo noted that the strategy was an attempt to "limit the influence of Dr. Selikoff" and avoid "clinical study of insulation workers" within the council.

In April 1970, OCF purchased the Bloomington Unarco plant. Within two weeks after its purchase, Konzen reviewed the potential health hazards within the plant. By July 1970, Konzen had received preliminary survey results. In an internal memorandum, Konzen stated: "This study demonstrates immediate need for inplant environmental control of asbestos so our employees do not continue to be severely exposed to airborne asbestos fiber." As a result of the industrial hygiene survey, Konzen suggested to OCF superiors that labeling should be done on asbestos products. In response, he received an internal memorandum from OCF employee J.P. Kern, which stated, "Are you saying that we have to do this now? I naturally would like to delay this requirement as long as possible." (Emphasis in original.) Unarco knew of the dangers of asbestos but did not warn plant workers during its ownership of the plant. After purchasing the plant from Unarco, OCF did not inform plant workers of any asbestos hazards. This failure to inform continued during the entire time OCF used asbestos at the plant.

In 1972, an OCF plant manager requested information on asbestos to transmit to Japan. OCF responded by telling the manager that he was "probing into a very sensitive area." The internal memo also questioned how much information OCF wanted to release on the subject and forwarded the manager's request to OCF's legal department and Konzen.

In 1978, the Secretary of the United States Department of Health and Human Services publicly announced the risks associated with asbestos exposure. Konzen and other OCF employees then contacted eight other asbestos manufacturers (including J-M) to see how those companies had responded or planned to respond to the announcement. Konzen testified that OCF possessed the necessary medical knowledge to act in response to the announcement without contacting other companies. Konzen also stated that asbestos companies formed a tight-knit community, and it was common for their medical directors to talk with each other.


Before addressing the merits, we address OCF's use of footnotes. Supreme Court Rule 341(a) provides that "footnotes, if any, shall be used sparingly." 155 Ill. 2d R. 341(a). In addition, Rule 344(b) discourages the use of footnotes in briefs. 155 Ill. 2d R. 344(b). OCF's brief contains 12 footnotes; its reply brief contains 18. All are single spaced, and many contain substantive argument that should be presented in the body of the brief. This simply cannot be characterized as using footnotes "sparingly." We also note that OCF's reply brief is 27 pages long and probably would have violated the page limitation of Rule 341(a) had the 18 footnotes been integrated into the body of the brief. See 155 Ill. 2d R. 341(a) (page limitation for reply briefs, if not printed, is 27 pages). Using footnotes to circumvent the page limitation violates "the spirit, and probably *** the letter, of the law." In re Estate of Marks, 231 Ill. App. 3d 313, 320, 595 N.E.2d 717, 721, 172 Ill. Dec. 356 (1992).

Adherence to the page limitations and guidelines for footnote usage is not an inconsequential matter. Lagen v. Balcor Co., 274 Ill. App. 3d 11, 14-15, 653 N.E.2d 968, 971, 210 Ill. Dec. 773 (1995). We agree with the Lagen court that "Rule 341 represents the Illinois Supreme Court's considered opinion of the format that best facilitates the clear and orderly presentation of arguments." Lagen, 274 Ill. App. 3d at 15, 653 N.E.2d at 971. In the future, this court may simply disregard footnotes when parties use them in violation of Rule 341(a). Of course, the best way for a party to ensure that we do not disregard some portion of its brief is to refrain from using any footnotes at all. Aside from limitations imposed by supreme court rules, omitting footnotes constitutes better--and more persuasive--writing. See S. Wilgenbusch, Preparing Your Brief: Whether 'Tis Better to Footnote--Or Not, 7 App. L. Rev. 39 (1996).


OCF first argues that the trial court erred by failing to adequately respond to a question of law the jury raised ...

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