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Burgess v. Abex Corp.

June 17, 1999

NO. 4-98-0354 JERRY BURGESS, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DELBERT BURGESS, DECEASED, AND FRANCIS BURGESS, PLAINTIFFS-APPELLEES,
v.
ABEX CORPORATION, BY ITS SUCCESSOR-IN-INTEREST, PNEUMO ABEX CORPORATION, DEFENDANT-APPELLANT. NO. 95L93 JERRY BURGESS, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DELBERT BURGESS, DECEASED, AND FRANCIS BURGESS, PLAINTIFFS-APPELLEES,
v.
ILLINOIS CENTRAL RAILROAD COMPANY, ABEX CORPORATION, METROPOLITAN LIFE INSURANCE COMPANY, CAFE INDUSTRIES PLC, AND OWENS-ILLINOIS, INC., DEFENDANTS, AND PITTSBURGH CORNING CORPORATION, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County No. 95L93 Honorable Luther H. Dearborn, Judge Presiding. No. 4-98-0356

The opinion of the court was delivered by: Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

JUSTICE COOK delivered the opinion of the court:

In these asbestos cases, the jury found for plaintiffs on a conspiracy theory. Defendants appeal. We affirm.

Delbert Burgess was employed as a security guard at the Union Asbestos & Rubber Company (Unarco) plant in Bloomington during 1953-54, briefly in 1961, and again during 1964-69. Burgess was diagnosed as having mesothelioma in early 1993, and he died June 18, 1993. Burgess' special administrator brought this action for wrongful death, and Francis Burgess, Burgess' wife, brought an action for injury to the husband-wife relationship and for the medical expenses of her husband.

On February 4, 1998, the jury found for plaintiffs and assessed damages of $250,000 for losses sustained by Burgess during his lifetime, $600,000 for the wrongful death of Burgess, and $48,579 for losses sustained by Francis Burgess. Fault was assessed as 50% against defendant Abex Corporation (Abex) and 50% against defendant Pittsburgh Corning Corporation (PCC). Defendants were credited for plaintiffs' settlements with other companies prior to trial, which resulted in the satisfaction of Francis Burgess' judgment and reduction of the special administrator's judgment from $850,000 to $710,000.

Neither Abex nor PCC ever employed Burgess, and no evidence shows that any Abex or PCC product was ever used in the Unarco plant where Burgess worked. Plaintiffs' theory is that defendants and others, including Unarco, engaged in a conspiracy: (1) they agreed to positively assert that it was safe for people to work with asbestos, (2) they agreed to suppress information about the harmful effects of asbestos, (3) one or more of the conspirators performed an overt act in furtherance of the conspiracy, and (4) the agreement and acts in furtherance were a proximate cause of Burgess' death.

In McClure v. Owens Corning Fiberglas Corp., 298 Ill. App. 3d 591, 698 N.E.2d 1111 (1998), appeal allowed, 181 Ill. 2d 574 (1998), this court affirmed judgments entered against Owens Corning Fiberglas Corporation (OCF) and Owens-Illinois, Inc. (OI), on a conspiracy theory.

We recited the following facts:

"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, 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 ...


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