Appeal from Circuit Court of McLean CountyNo. 08L132 HonorableScott Drazewski,Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justice McCullough concurred in the judgment and opinion.
Justice Turner specially concurred, with opinion.
¶ 1 This tort action has two plaintiffs: Juanita Rodarmel and her spouse, Baxter Rodarmel. Juanita Rodarmel suffers from mesothelioma, for which she seeks compensation, and Baxter Rodarmel seeks compensation for injury to the spousal relationship and for the medical expenses of treating his wife's mesothelioma.
¶ 2 It is undisputed that Juanita Rodarmel contracted the mesothelioma from breathing asbestos fibers that her first husband, Leslie Corry, carried home on his person and clothing from 1953 through 1956. During that period, he was employed at Union Rubber & Asbestos Company (UNARCO) in Bloomington, Illinois, which used asbestos in its manufacturing processes. Former UNARCO employees testified that they never received any warning from UNARCO about the toxicity of asbestos and that UNARCO did little or nothing to protect them from the asbestos.
¶ 3 UNARCO, however, is not one of the defendants in this case. Instead, this appeal has two defendants, neither of which ever employed Corry and neither of which supplied any of the asbestos that made Juanita Rodarmel sick: Honeywell International, Inc., which is the successor, by merger, of The Bendix Corporation; and Pneumo Abex, L.L.C., the successor of Pneumo Abex Corporation, which in turn is a successor of American Brake Shoe Company.
¶ 4 Plaintiffs sued defendants, Honeywell and Abex, on a theory of civil conspiracy. According to the complaint, defendants conspired with UNARCO, Johns-Manville Corporation, Owens Corning, and other companies to do two things: (1) falsely assert it was safe for people to be exposed to asbestos and (2) withhold information about the harmful effects of asbestos. The jury was convinced by this theory of a conspiracy. It awarded plaintiffs $2 million in compensatory damages against defendants as well as $400,000 in punitive damages against Honeywell and $100,000 in punitive damages against Abex.
¶ 5 Defendants appeal, and their first argument--the only argument it is necessary for us to address--is that the trial court erred in denying their motions for a judgment notwithstanding the verdict. For two reasons, we hold that defendants were entitled to a judgment notwithstanding the verdict. First, UNARCO owed Juanita Rodarmel no duty, in the period of 1953 to 1956, to warn her against the danger of asbestos carried home on clothing (in contrast to the danger of intensive exposure to asbestos in factories). Our reason for so holding is that in 1953 through 1956, the infliction of illness merely from asbestos carried home on clothing was not reasonably foreseeable, given what was known during that period. If UNARCO would incur no liability to plaintiffs for failing to warn, in the 1950s, against the danger posed to family members by asbestos carried home on employees' clothing, UNARCO's alleged coconspirators, Honeywell and Abex, should incur no liability on that basis, either. Second, even if, arguendo, UNARCO owed Juanita Rodarmel a duty, the record appears to contain no evidence that in the period of 1953 to 1956 or prior thereto, either of the defendants actually entered into an agreement with any other corporation to falsely assert that asbestos was safe or to keep quiet about the dangers of asbestos, although the record contains evidence that defendants, on their own account and on their own individual initiative, did those things. Therefore, we reverse the trial court's judgment.
¶ 7 A. Parallel Conduct By Defendants
¶ 8 The jury trial occurred in April 2009 and lasted 14 days. It appears that most of the evidence in plaintiffs' case was of "parallel conduct" by defendants, "evidence intended to demonstrate that defendants' actions paralleled those of the other alleged conspirators," such as Johns-Manville. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 112 (1999). Plaintiffs set out to prove that defendants hid the dangers of asbestos from their employees and that at times, defendants even fraudulently represented that the asbestos-infused air inside their factories was safe, and that in so doing, defendants acted in conformity with a conspiratorial agreement they had with other companies that were financially interested in promoting asbestos and in preventing state statutes from being amended so as to provide workers' compensation for diseases caused by asbestos. Recounting all this evidence would be impracticable. All we can do is provide representative examples, chosen at random, to give some idea of the detailed evidence that plaintiffs presented regarding the internal operations of defendants' factories during roughly the second half of the 20th century.
¶ 9 For days on end, the jury received a prodigious amount of information about what went on inside manufacturing plants owned by defendants. For example, the jury learned that a railroad siding led to a factory that Bendix owned in Troy, New York, and that via this siding, raw asbestos arrived at the factory in burlap bags from Johns-Manville (later, Johns-Manville switched to plastic airtight bags). A forklift carried these bags on wooden pallets from the railroad siding to the mix room, and because the forklift could not fit through the doorway of the mix room, workers had to carry the bags from the forklift to the mixer, where they slit open the bags and dumped the asbestos into the mixer, raising clouds of asbestos dust--a problem that was exacerbated by dry-sweeping the dust.
¶ 10 The jury learned that in 1976, Chrysler complained to Bendix that boxes of brake shoes it had received from Bendix's plant in St. Joseph, Michigan, were "contaminated with excessive asbestos dust." Various "dust counts" in Bendix's factories, or measurements of airborne dust, often exceeded the maximum permissible levels allowed by the Occupational Health and Safety Administration (OSHA). According to a company newsletter, Bendix tried to "turn the dust into dollars" by selling asbestos dust as filler for bowling balls.
¶ 11 The jury learned that according to a letter from Johns-Manville dated June 1973, some 300,000 bags of asbestos--a total of 30 million pounds--went into the Bendix plants at Troy and at Cleveland, Tennessee, each year. Despite the ubiquity of asbestos dust in its factories and the accumulating evidence in its files that asbestos scarred the lungs (evidence that plaintiffs presented, document by document, at trial), decades passed without Bendix's warning its employees or devoting any of its considerable financial resources to exploring the nature and extent of the danger. Bendix spent $20 million on a Dynanometer, a machine for testing the stopping power of brakes, but no money at all on studying the health effects of asbestos. Although Bendix took chest X-rays of its employees, it had a policy of keeping the X-rays confidential--even from the employees.
¶ 12 Plaintiffs spent a couple of days on Abex factories, too. The jury learned, for example, that 1926 was the year in which Abex first sold a product containing asbestos.
¶ 13 The jury learned that on November 1, 1977, the medical director at Abex, F.W. Knoch, wrote a memorandum to the manager of Abex's plant in Winchester, Virginia, Earl F. Potts, commenting on his visit to the Winchester plant on October 27, 1977. In the memorandum, Knoch wrote: "There is no doubt in any of our minds that asbestos is a carcinogen," and he explained that smoking in areas of the plant "where asbestos [was] present in excess of the Threshold Limit Value" should be discouraged because it increased the hazard of asbestos. Knoch complimented Potts on "prevent[ing] any eating or drinking in 'regulated' areas of the plant." From this compliment, the jury could have inferred that asbestos was floating around in the air inside the factory, or else there would have been no need to worry about ingesting it with food or drink.
¶ 14 The jury learned that the rafters in an Abex plant were dusty and that this dust likely included asbestos fibers, considering that the plant used nine tons of asbestos per month.
¶ 15 The jury learned that on August 1, 1973, C.C. Blackwell, Jr., who was the medical director of Abex, wrote a memorandum to the company's "industrial nurse," M.C. Rauch, urging her to keep "industrial hygiene survey reports" confidential if an employee happened to seek her advice on whether he was suffering from an occupational illness. "Industrial hygiene surveys" were air samples that Abex periodically took at its factories.
¶ 16 The jury learned that on May 20, 1975, some inspectors from OSHA visited the Winchester plant and that according to a follow-up memorandum by C.L. Curtis, who was the division project engineer, one of these inspectors, Kip Hartman, was "a very clever individual," who, "at every opening," "would mingle with Cooper in a corner." ("D. Cooper" was the union chairman, who accompanied the OSHA inspectors and the company representatives in the walk-through inspection.) Curtis believed Hartman "required more following than did Pauley," another of the OSHA inspectors. Curtis wrote that "Hartman would gather a group of employees, usually near the central aisles or drinking fountains, and question them on their knowledge of asbestos hazards. He was told by most employees that, 'One day they came to work and found mix boxes labeled, "Asbestos Is Hazardous To Your Health, Do Not Breathe," and no one ever informed the employees why the labels were installed or what the hazard was.' "
¶ 17 Perhaps these examples, selected at random from the record of the trial, give an idea of the great mass of minutiae the jury heard, over several days, regarding factories in which Leslie Corry never set foot and which never supplied any of the asbestos that was carried into Juanita Rodarmel's home. Presumably, the justification for these detailed historical accounts of defendants' factories was the supreme court's holding in McClure that "parallel conduct may serve as circumstantial evidence of a civil conspiracy among manufacturers of the same or similar products"--although, as the supreme court also held, parallel conduct is "insufficient proof, by itself, of the agreement element of this tort." McClure, 188 Ill. 2d at 135.
¶ 18 B. Johns-Manville's Warning Label, Followed, a Few Months Later, by a More Enlightening Position Paper
¶ 19 On October 1, 1968, N.W. Hendry, the general sales manager in the asbestos fiber division of Johns-Manville, notified Bendix by letter that henceforth each bag of asbestos from Johns-Manville would arrive with a warning label affixed to it. Hendry wrote:
"You will notice that beginning shortly each bag of chrysotile asbestos fibre shipped by this Company will carry a label reading as follows--
CAUTION 'This bag contains chrysotile asbestos fibre. Persons exposed to this material should use adequate protective devices as inhalation of this material over long periods may be harmful.'
This label is intended to remind all industrial users of asbestos that proper handling will contribute to improved conditions in work areas.
Physical protection for employees is provided through the use of safety hats, shoes, glasses, and other devices when circumstances warrant. Health protection is just as important and should include appropriate practices and equipment such as collectors, ventilators, masks, etc., to prevent inhalation of fumes and particulate matter."
¶ 20 On October 17, 1968, a person named D.K. Beanie, evidently someone in Bendix management, wrote a letter, marked "Personal," to the medical director of Bendix, C.C. Blackwell (plaintiffs' exhibit No. 187). Beanie wrote:
"Attached hereto please find a copy of Johns-Manville Asbestos, Ltd.'s letter of October 1, 1968, pointing out that each bag of asbestos fibre will soon contain a caution label.
This could give us some repercussions at Winchester if our people working with asbestos get concerned about the hazard to their health.
Any comments you might give us in rebuttal to questions the employees might raise would be appreciated."
¶ 21 Obviously, Johns-Manville's warning label was quite vague ("inhalation of this material over long periods may be harmful"). About three months later, however, in January 1969, Johns-Manville sent Bendix a position paper entitled "Asbestos and Human Health" (plaintiffs' exhibit No. 818A) that was considerably more specific about the nature of the hazards that asbestos posed. Under the heading "Known and Suspected Occupational Risks," the position paper explained that the hazards of asbestos were threefold: (1) asbestosis, (2) lung cancer, and (3) mesothelioma.
¶ 22 C. A Shared Director and Membership in the Same Trade Organization
¶ 23 In 1934, Arthur L. Humphrey was on the board of directors of American Brake Shoe and Foundry Company (the predecessor of Abex), and that same year, he also was on the board of directors of Bendix. Both of those companies made brake shoes, and they were competitors.
¶ 24 From 1959 to 1963, John D. Biggers was on the board of directors of Bendix, and during that same period, he also was on the board of directors of Johns-Manville, another manufacturer of brake shoes.
¶ 25 Bendix, Abex, Johns-Manville, and indeed all brake-lining manufacturers were members of the Friction Materials Standards Institute (FMSI), a trade organization.
¶ 26 D. The Dusting Experiments at Saranac Laboratory
¶ 27 1. A Proposal To Finance Dusting Experiments, the Results of
Which Were To Be the Property of the Financing Corporations ¶ 28 Vandiver Brown was general counsel of Johns-Manville, and because Johns-Manville not only used asbestos in its own brake linings but also mined asbestos and sold it to other manufacturers, Johns-Manville was interested in finding out more about an occupational disease, asbestosis. To that end, Brown contacted LeRoy U. Gardner, a pathologist and the director of The Saranac Laboratory for the Study of Tuberculosis, located in the village of Saranac Lake, New York. On November 20, 1936, Brown wrote Gardner a letter (plaintiffs' exhibit No. 309) urging him to "commence the contemplated experiments with asbestos dust for the purpose of determining the cause and effects of asbestosis."
¶ 29 "Asbestosis" is "a pneumoconiosis due to asbestos particles." Merriam-Webster's Collegiate Dictionary 66 (10th ed. 2000). "Pneumoconiosis" is "a disease of the lungs due to inhalation of dust, characterized by inflammation, coughing, and fibrosis." The New Oxford American Dictionary 1307 (2d ed. 2005). "Fibrosis" is "the thickening and scarring of connective tissue, usually as a result of injury" (The New Oxford American Dictionary 623 (2d ed. 2005)), or, as another dictionary defines it, "a condition marked by the increase of interstitial fibrous tissue" (Merriam-Webster's Collegiate Dictionary 431 (10th ed. 2000)). In short, asbestosis is a form of pneumoconiosis, a lung-scarring caused by inhaling asbestos fibers. Obviously, since the word "asbestosis" had been coined at the time Brown wrote his letter to Gardner, it was known in the 1930s that breathing asbestos fibers caused this inflammatory, fibrous disease of the lungs. Brown and Gardner thought, however, that the subject of asbestosis merited further exploration.
¶ 30 It appears from Brown's letter that he and Gardner had previously discussed using the "dusting chambers" of Saranac Laboratory "for further experimentation with asbestos dust"--that is, experimentation on animals--and that the only question had been how the experiments would be financed. In his letter of November 20, 1936, Brown laid the money question to rest. He informed Gardner that in a meeting the day before, not less than 8 and possibly 10 or more corporations expressed a willingness to finance the proposed experiments. It was understood, Brown wrote, that the experiments would take approximately 3 years and that they would cost $5,000 a year.
¶ 31 As Brown stated in his letter, he anticipated that these experiments would shed light on "the cause and effects of asbestosis." Specifically, he anticipated that the experiments would answer the following questions:
"(1) What concentration of dust is necessary to produce the fibrosis of the lungs which is designated as asbestosis.
(2) Whether exposure to asbestos dust will produce asbestosis without the existence of previous infection and whether the X-ray changes found in advanced human asbestosis can be reproduced in animals without infection.
(3) Whether the fibrosis produced by asbestos is of the progressive type, that is, will the fibrosis increase (once it is started) after exposure to the dust has ceased.
(4) Whether the fibrosis resulting from the exposure to asbestos dust is occasioned by the silicon content of the asbestos or by its fibrous structure.
(5) Whether the presence of 'asbestos bodies' has any diagnostic significance."
So, the purpose of the dusting experiments would be to answer various questions about asbestosis, including the mechanics of its causation and under what conditions it progressed.
¶ 32 Brown and Gardner had previously agreed that whatever the answers to these questions turned out to be, the answers would be the sole property of the companies that had paid for the experiments. The results of the experiments would belong exclusively to the financing corporations, which would decide whether and to what extent to publicize the results. Brown wrote:
"It is our further understanding that the results obtained will be considered the property of those who are advancing the required funds, who will determine whether, to what extent and in what manner they shall be public. In the event it is deemed desirable that the results be made public, the manuscript of your study will be submitted to us for approval prior to publication.
I shall appreciate your advising me if the foregoing accurately expresses the proposition you had in mind."
¶ 33 Those terms were acceptable to Gardner. On November 23, 1936, he wrote back to Brown (plaintiffs' exhibit No. 310): "The Saranac Laboratory agrees that the results of these studies shall become the property of the contributors and that the manuscripts of any reports shall be submitted for approval of the contributors before publication."
¶ 34 2. The "Memorandum of Agreement," Signed By the Financing Corporations
¶ 35 On November 20, 1936, nine corporations in the asbestos business signed a "Memorandum of Agreement" (plaintiffs' exhibit No. 100), in which they promised to underwrite the experiments with asbestos dust to be performed by Gardner at Saranac Laboratory. The signatories were American Brakeblok, a division of American Brake Shoe Company (now known as Abex); Asbestos Manufacturing Company; Gatke Corporation; Johns-Manville Corporation; Keasbey & Mattison; Raybestos-Manhattan, Incorporated; Russell Manufacturing Company; UNARCO; and United States Gypsum Company.
¶ 36 In correspondence dated February 27, 1937 (Abex exhibit No. 606), Brown sent each of the nine corporations a copy of the "Memorandum of Agreement"; a copy of his letter of November 20, 1936, to Gardner; and a copy of Gardner's reply of November 23, 1936.
¶ 37 3. Gardner's "Outline of Proposed Monograph on Asbestosis"
¶ 38 On February 24, 1943, Gardner wrote Brown a letter (plaintiffs' exhibit No. 400A), announcing that he had "at last succeeded in analyzing most of [the] voluminous experimental data and assessing the results." (In the interim between 1936 and 1943, he had sent Brown several progress reports.) Gardner explained, apologetically, that the task of "preparing microscopic sections and chemically analyzing the tissues on more than 800 animals" had proved so daunting that he had not yet had time to write a full report of his experiments. For the benefit of the contributors, however, he had written an annotated outline of a proposed monograph, which was enclosed. It was entitled "Outline of Proposed Monograph on Asbestosis" (plaintiffs' exhibit No. 400A (enclosure of the cover letter)).
¶ 39 Part I of the outline was entitled "Human Asbestosis," and item 3 of part I discussed, in a tentative and qualified way, some possible complications of asbestosis, including lung cancer. Item 3 read as follows:
"3. Complication of Asbestosis
(a) Susceptibility to Infection ( i ) T u b e r c u l o u s -- H i gh incidence in English experience not duplicated in surveys of American Plants.
Available autopsy statistics deceiving because of selection of material.
(ii) Non-Tuberculous--The same reason probably applies should be checked by analysis of absenteeism among asbestos workers.
(iii) Cancer of Lung Ditto, but there are now on record 10 cases of lung cancer in asbestos workers. Compared to the total number of autopsies on asbestosis, this incidence is excessive. No such frequency has been discovered in silicosis or other forms of pneumoconiosis except in the Schneeberg miners of radioactive ores. The evidence is suggestive but not conclusive that asbestosis may precipitate the development of cancer in susceptible individuals."
¶ 40 By "ditto," in his annotation on lung cancer, Gardner appeared to refer back to item 3(a)(i), in which he commented on the "deceiving" selectivity of material in the human autopsy statistics. Thus, although the "10 cases of lung cancer in asbestos workers" were "suggestive" because 10 cases seemed high compared to other occupations in which workers contracted pneumoconiosis, this statistical evidence was, in Gardner's view, problematic because of its possible selectivity and also because the high incidence of supposedly asbestos-related cancer in the United Kingdom had not been found among asbestos workers in the United States.
¶ 41 All the same, Gardner's curiosity was piqued by his discovery of "malignant tumors" in the lungs of 8 of the 11 mice that he had exposed to asbestos fibers for 15 to 24 months in the dusting experiments. Nevertheless, he considered his cancer results with mice to be "suggestive but not conclusive." In Part II of his outline, entitled "Experimental Asbestosis," he pointed out the flaws in his unintentional cancer experiment, including the use of different strains of mice that were not of the same age. He wrote:
No experiments were particularly designed to elucidate this point but certain evidence suggests that asbestosis may actually favor development of tumors in susceptible species.
(1) In guinea pigs, rabbits, rats, cats and dogs lung tumors are rare.
(2) When these species were subjected to 2 to 3 years inhalation of asbestos dust, the incidence of lung tumor was not increased.
(3) Some strains of white mice do develop tumors without apparent cause.
(4) Such a strain of white mice was unintentionally used in three inhalation experiments with asbestos.
(5) Of 11 mice inhaling long fibre asbestos for 15 to 24 months 8 developed malignant tumors in their lungs and 8 of them had tumors in other organs. The incidence rate 81.8% is excessive.
(6) Of 22 mice inhaling short fibre asbestos for not longer than 12 months only 3 developed lung tumors. Rate 13.8%.
(7) As controls, we have only the experience with mice in other dust experiments.
For short periods, there were 51 mice exposed to 4 other kinds of dust for 10 to 12 months. Incidence of lung tumor 1.9%.
For long periods, there were 143 mice exposed to 4 different kinds of dust, including pure quartz, 23 to 31 months. For all this group of mice the average incidence of lung tumor was 18.8%: the highest rate (25%) was in a subgroup exposed to flint dust.
Thus the incidence of lung cancer in the long fibre asbestos mice was over 16 times the average for mice inhaling other dusts for comparable periods and over 3 times the maximum for any other group. Mice exposed to the practically inert short fibre asbestos showed fewer lung tumors although 7 times more than those in short exposures to other dusts.
These observations are suggestive but not conclusive evidence of a cancer stimulating action by asbestos dust. They are open to several criticisms. The strain of mice was not the same in the asbestos experiment as in many of the other cited; apparently the former were unusually susceptible. Not enough animals survived in the dust for longer than 15 months apparently necessary to produce many tumors. There were no unexposed controls of the same strain and age and no similar controls exposed to other dusts. It is hoped that this experiment can ...