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In Re: the Estate of Jean Holmes, Deceased v. Pneumo Abex

June 22, 2011

IN RE: THE ESTATE OF JEAN HOLMES, DECEASED,
ROGER HOLMES, SPECIAL ADMINISTRATOR,
PLAINTIFF-APPELLEE,
v.
PNEUMO ABEX, L.L.C., SUED AS ITS PREDECESSOR PNEUMO ABEX CORPORATION; AND
HONEYWELL INTERNATIONAL, INC.,
DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of McLean County No. 06L57 Honorable Scott Drazewski, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

JUSTICE TURNER delivered the judgment of the court, with opinion. Justice Appleton concurred in the judgment and opinion.

Presiding Justice Knecht dissented, with opinion.

OPINION

In May 2006, plaintiff, Roger Holmes, as special administrator of the estate of Jean Holmes, deceased, sued defendants, Pneumo Abex, L.L.C. (Abex), Honeywell International, Inc. (Honeywell), and others to recover damages for wrongful death. In March 2009, a jury found for plaintiff and assessed damages against defendants. In May 2009, defendants filed posttrial motions, which the court denied.

On appeal, defendants argue they are entitled to judgment notwithstanding the verdict because they owed no duty to decedent. We reverse.

I. BACKGROUND

In May 2006, plaintiff filed a complaint against defendants and others for the wrongful death of his mother, Jean Holmes. The complaint alleged decedent's husband, Donald Holmes, worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment, Holmes was exposed to asbestos and brought the fibers home on his clothes and person, which exposed decedent to the asbestos. Decedent was diagnosed with mesothelioma, and she died in April 2006.

Plaintiff alleged defendants, along with Unarco, Johns-Manville Corporation (Johns-Manville), Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.) (Raybestos), Owens Corning, Owens-Illinois, and Metropolitan Life Insurance Company (MetLife), conspired to suppress information about the harmful effects of asbestos and refused to warn employees about the hazards of asbestos. Plaintiff claimed defendants' agreements and acts done in furtherance thereof proximately caused decedent's injury and death.

Honeywell is the successor by merger to the Bendix Corporation (Bendix), which manufactured automotive brakes and brake linings. At the relevant times, brake linings, including those made by Bendix, were made with chrysotile asbestos. Bendix's largest supplier of raw chrysotile was Johns-Manville. Abex is the successor to a variety of entities, the original being American Brake Shoe & Foundry Company. Abex made automotive brake products and brake linings with chrysotile asbestos.

In February 2009, plaintiff's case proceeded to a jury trial. As the parties are familiar with the facts in this case, we will set forth only those facts necessary for the proper disposition of this appeal. The parties do not dispute that decedent developed peritoneal mesothelioma, which caused her death at age 93. Peritoneal mesothelioma has been associated with exposure to asbestos. It was also undisputed that decedent's only exposure to asbestos fibers was on the work clothes of her husband, who worked at the Unarco manufacturing plant in Bloomington from 1962 to 1963. The asbestos was supplied to Unarco by Johns-Manville and Raybestos. It was undisputed that decedent and her husband were never exposed to any Bendix or Abex products.

Plaintiff presented evidence that showed multiple companies, including Johns-Manville, Raybestos, and Abex entered into a written agreement in 1936 with the Saranac Laboratory (Saranac agreement) to sponsor research on industrial dusts. The evidence showed an agreement among some of the companies to reduce or de-emphasize references to asbestosis in a 1935 asbestos industry study prepared by Dr. Anthony Lanza of MetLife; to have references to lung cancer in animals and asbestosis or cancer in humans deleted from a 1948 asbestos study prepared by Dr. Leroy Gardner and Dr. Arthur Vorwald of Saranac Laboratory and to keep the study and its underlying data from being disseminated to the public; and to prevent publication from 1935 to 1969 of any articles about the dangers of asbestos in Asbestos magazine.

Evidence showed Unarco, Johns-Manville, Raybestos, and Abex did not change their business practices concerning asbestos or attempt to warn their employees. Plaintiff also presented evidence as to the activities of Owens Corning and Owens-Illinois. Owens-Illinois received a 1948 report from Dr. Vorwald that concluded its asbestos-containing Kaylo pipe and block insulation was a potentially hazardous material and capable of producing asbestosis. In various journals, Owens-Illinois and Owens Corning sold Kaylo insulation stating it was "nonirritating" and "nontoxic."

Plaintiff's expert, Dr. Barry Castleman, a consultant specializing in toxic-substances control, testified he had no information that Bendix was aware of communications that were taking place between Raybestos, Johns-Manville, and MetLife as to the study by Dr. Lanza. He was not aware of Bendix being involved in any effort to prevent Asbestos magazine from publishing articles about asbestos. Dr. Castleman had no knowledge that Bendix ever knew or approved of the Saranac agreement or that it had known ...


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