Appeal from Circuit Court of McLean County No. 09L71 Honorable G. Michael Prall, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
(No. 4-10-0904) ) (No. 4-10-0921) )
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Turner specially concurred in the judgment, with opinion. Justice Cook dissented, with opinion.
¶ 1 In March 2009, plaintiff, Jayne Menssen, sued defendants, Pneumo Abex, LLC, the successor of Pneumo Abex Corporation (Abex), and Honeywell International, Inc. (Honeywell), the successor of the Bendix Corporation (Bendix), among others, to recover damages for a malignancy caused by exposure to asbestos that occurred while Menssen was employed at the Union Asbestos and Rubber Company (UNARCO). Menssen's suit alleged that Abex, Honeywell, and UNARCO entered into a civil conspiracy to (1) falsely assert that exposure to asbestos was safe and (2) suppress information about the harmful effects of asbestos.
¶ 2 In February 2010, a jury returned a verdict in favor of Menssen and against Abex and Honeywell, awarding Menssen $3.5 million in compensatory damages, as well as punitive damages of $4.37 million against Abex and $10 million against Honeywell.
¶ 3 Abex and Honeywell appeal, alleging numerous deficiencies. Because we view this court's decision in Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463, 957 N.E.2d 107, as dispositive, we address only the claim raised by Abex and Honeywell that the trial court erred by denying their respective motions for a judgment notwithstanding the verdict (judgment n.o.v.). Consistent with our decision in Rodarmel, we reverse the court's judgment because the evidence Menssen presented was insufficient to prove Abex or Honeywell conspired with other corporations to misrepresent or suppress the health hazards of asbestos exposure.
¶ 5 From 1967 to 1969, UNARCO, a manufacturer and distributor of asbestos and asbestos products, employed Menssen. In her March 2009 complaint, Menssen claimed that (1) during her employment at UNARCO, she inhaled asbestos fibers and (2) she was exposed to asbestos products manufactured by, among others, Abex and Honeywell. Menssen alleged that this exposure later caused her to suffer from pleural mesothelioma-a malignancy of the membrane that surrounds the chest and lungs. Although her March 2009 complaint did not identify UNARCO as a defendant, Menssen alleged that UNARCO conspired with Abex and Honeywell to (1) falsely assert that exposure to asbestos was safe and (2) suppress information about the harmful effects of asbestos. Menssen alleged further that this conspiracy and the subsequent conduct in furtherance thereof proximately caused her illness.
¶ 6 Although Menssen was never employed by Abex or Honeywell, she introduced evidence to show that the actions Abex and Honeywell, as well as their predecessors, took with regard to their respective asbestos operations were parallel to-that is, consistent with-the conduct taken by the other alleged coconspirators. The theory underlying Menssen's civil-conspiracy claim was that Abex and Honeywell conspired with other corporations in the asbestos industry to misrepresent and suppress the health hazards of asbestos exposure. In particular, Menssen posited that despite knowing the dangers of asbestos exposure, Abex and Honeywell (1) sold products containing asbestos without health-hazard-warning labels and (2) failed to adequately protect their employees from exposure to asbestos. With regard to Abex, Menssen also claimed that it conspired with eight other corporations in the asbestos industry to unlawfully conceal information about the carcinogenic effect of asbestos from a scientific study.
¶ 7 At a trial that began in January 2010, Menssen presented evidence consistent with her claims, the majority of which was factually indistinguishable in any appreciable measure from the evidence presented in Rodarmel-a case this court decided involving the same claims against Abex and Honeywell, which we later discuss at length. Following the presentation of that evidence, the jury (1) returned a verdict in Menssen's favor and against Abex and Honeywell and (2) awarded Menssen $3.5 million in compensatory damages, as well as punitive damages of $4.37 million against Abex and $10 million against Honeywell.
¶ 8 In April 2010, Abex and Honeywell filed separate posttrial motions for judgment n.o.v., which the trial court later denied.
¶ 9 This appeal followed.
¶ 11 A. Civil Conspiracy Defined
¶ 12 A civil conspiracy is a "combination of two or more persons for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means." (Internal quotation marks omitted.) McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133, 720 N.E.2d 242, 258 (1999). For recovery under a civil conspiracy claim, the plaintiff must prove an agreement and a tortious act committed in furtherance of the agreement. Id. The agreement must be knowingly and intentionally made. McClure, 188 Ill. 2d at 133-34, 720 N.E.2d at 258. A "defendant who innocently performs an act which happens to fortuitously further the tortious purpose of another is not liable under the theory of civil conspiracy." (Internal quotation marks omitted.) McClure, 188 Ill. 2d at 134, 720 N.E.2d at 258.
¶ 13 Because a civil conspiracy is almost never susceptible to direct proof, the conspiracy is usually established through circumstantial evidence and inferences drawn from the evidence. Id. Although evidence of parallel conduct by the alleged conspirators may serve as circumstantial evidence of a civil conspiracy, parallel-conduct evidence is insufficient, by itself, to establish the existence of an agreement to commit the civil conspiracy. McClure, 188 Ill. 2d at 135, 720 N.E.2d at 259.
¶ 14 B. Standard of Review
¶ 15 We review de novo a trial court's denial of a motion for a judgment n.o.v. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257. "[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever stand." (Internal quotation marks omitted.) Rodarmel, 2011 IL App (4th) 100463, ¶ 86, 957 N.E.2d 107.
¶ 16 However, a ruling on a judgment n.o.v. also implicates the clear and convincing evidentiary standard. Rodarmel, 2011 IL App (4th) 100463, ¶ 87, 957 N.E.2d 107. "[T]he evidence must be clear and convincing if a conspiracy is to be proved solely by circumstantial evidence." Rodarmel, 2011 IL App (4th) 100463, ¶ 88, 957 N.E.2d 107. This standard applies to judgments n.o.v. as well as directed verdicts. Rodarmel, 2011 IL App (4th) 100463, ¶ 87, 957 N.E.2d 107.
¶ 17 C. The Evidence Presented in Rodarmel and the Jury's Verdict
¶ 18 Although Abex and Honeywell raise in their appeal numerous alleged deficiencies in the trial court proceedings, we address only the claim that the court erred by denying the separate motions Abex and Honeywell filed for judgment n.o.v. As previously noted, because we view our decision in Rodarmel as dispositive, we first discuss the evidence presented in that case.
¶ 19 1. The Parallel Conduct Evidence Presented To Show a Civil Conspiracy Existed
¶ 20 In Rodarmel, 2011 IL App (4th) 100463, ¶ 4, 957 N.E.2d 107, the plaintiffs sued the defendants, Abex and Honeywell, alleging that the defendants conspired with other corporations to (1) falsely assert that asbestos exposure was safe and (2) withhold information about the harmful effects of asbestos. The majority of the evidence the plaintiffs presented to show this civil conspiracy concerned circumstantial evidence to show parallel conduct-that is, the actions each defendant took with regard to its respective asbestos operations ...