CHARLES GILLENWATER and DONITA GILLENWATER, Plaintiffs-Appellants,
HONEYWELL INTERNATIONAL, INC.; PNEUMO ABEX, LLC; and OWENS-ILLINOIS, INC., Defendants-Appellees, and JOHN CRANE, INC., Defendant
Held[*] In an asbestos action on behalf of plaintiff and his wife, the trial court’s grant of three defendants’ motions for judgment n.o.v. as to plaintiff and the entry of summary judgment for the three defendants as to plaintiff’s wife were affirmed, since the evidence so overwhelmingly favored defendants with regard to plaintiff that no verdict against them could ever stand, and as to plaintiff’s wife, defendants owed her no duty, because she was not married to plaintiff when he was exposed to the defendants’ asbestos products.
Appeal from the Circuit Court of McLean County, No. 10-L-117; the Hon. Scott Drazewski, Judge, presiding.
James Wylder and Andrew J. Kelly, both of Wylder Corwin Kelly LLP, of Bloomington, and J. Timothy Eaton (argued) and Patricia S. Spratt, both of Shefsky & Froelich, Ltd., of Chicago, for appellants.
Craig H. Zimmerman, Steven H. Hoeft, Colleen E. Baime (argued), and Michael W. Weaver, all of McDermott Will & Emery LLP, of Chicago, and Luke J. Mangan, of Polsinelli Shughart, P.C., of St. Louis, Missouri, for appellee Honeywell International, Inc.
Robert H. Riley, Matthew J. Fischer (argued), Neil Lloyd, and Joshua D. Lee, all of Schiff Hardin LLP, of Chicago, for appellee Owens-Illinois, Inc.
Craig L. Unrath, of Heyl, Royster, Voelker & Allen, and Robert W. Scott, of Swain, Hartshorn & Scott, both of Peoria, and Reagan W. Simpson (argued), of Yetter Coleman LLP, of Austin, Texas, and Amy Eikel, of King & Spalding, of Houston, Texas, for appellee Pneumo Abex, LLC.
Panel Justices Knecht and Turner concurred in the judgment and opinion.
¶ 1 One of the plaintiffs in this case, Charles Gillenwater, suffers from mesothelioma, which he contracted by inhaling airborne fibers from an asbestos-containing product. He brought this personal-injury action against defendants, Honeywell International, Inc. (Honeywell); Owens-Illinois, Inc. (Owens-Illinois); and Pneumo Abex, LLC (Abex), all manufacturers of asbestos-containing products. He sought compensation from them on the theory that they had been in a civil conspiracy with one another to conceal the respiratory dangers of asbestos. (He also sued a manufacturer of asbestos-containing gaskets, John Crane, Inc. (Crane), and won a verdict against that company. Crane, however, is not a party to this appeal. A separate appeal by Crane has been settled and dismissed.) Charles Gillenwater's alternate theory–alternate to the theory that the three defendants conspired together–was that Owens-Illinois entered into the same conspiracy with a nonparty, Owens-Corning Fiberglas Corporation (Owens-Corning), the manufacturer of Kaylo, an asbestos-containing insulation to which he also was exposed during his career as a pipefitter.
¶ 2 The other plaintiff in this case, Donita Gillenwater, is Charles Gillenwater's wife. She alleged a loss of consortium as a result of her husband's contracting mesothelioma.
¶ 3 The trial court entered summary judgment in defendants' favor on Donita Gillenwater's claims of loss of consortium. The case then went to trial on the remaining claims, and the jury returned a verdict in Charles Gillenwater's favor and against the three defendants. The jury awarded him compensatory damages in the amount of $9.6 million and also awarded him punitive damages in the amounts of $20 million against Honeywell, $40 million against Owens-Illinois, and $20 million against Abex.
¶ 4 Honeywell, Owens-Illinois, Abex, and Crane filed motions for judgment notwithstanding the verdict, and the trial court granted the motions by Honeywell, Owens-Illinois, and Abex but denied the motion by Crane. The court entered judgment in Charles Gillenwater's favor and against Crane in the amount of $8, 425, 000.
¶ 5 Charles Gillenwater appeals from the trial court's decision to grant the motions by Honeywell, Owens-Illinois, and Abex for judgment notwithstanding the verdict. Donita Gillenwater appeals from the summary judgment in favor of Honeywell, Owens-Illinois, and Abex on her claims of loss of consortium.
¶ 6 Looking at all the evidence in the light most favorable to Charles Gillenwater and drawing all reasonable inferences in his favor, we conclude that the evidence so overwhelmingly favors defendants that no verdict against them could ever stand. As for Donita Gillenwater's claims of loss of consortium, defendants were entitled to summary judgment because they owed her no duty, given that she was not yet married to Charles Gillenwater at the time he was exposed to asbestos-containing products. Therefore, we affirm the trial court's judgment.
¶ 7 I. BACKGROUND
¶ 8 A. Evidence of Charles Gillenwater's Exposure to Kaylo
¶ 9 Charles Gillenwater, who was 58 at the time of the trial, became a pipefitter in 1972 and continued in that profession until his retirement in 2007 or 2008. His apprenticeship lasted from 1972 to 1977, and during that period he and another apprentice pipefitter, Bill Tay, worked on many jobs together: Bridgestone/Firestone, for instance, and Moulton, Manchester, and Hewett Halls at Illinois State University. There were hundreds of feet of pipe in these places.
¶ 10 Tay testified that, typically, as he and Gillenwater installed new pipes to carry steam or hot water, they used gaskets manufactured by Crane. These gaskets contained asbestos. Also, insulators employed by a contractor named Sprinkmann would be right behind Tay and Gillenwater, covering the pipes with a chalky white insulation that gave off clouds of dust when the insulators sawed it into pieces. In his testimony, Gillenwater likewise recalled the chalky, dusty white insulation, the fragments of which everyone, including the pipefitters, helped pick up during cleanup. According to Tay, the insulation "normally" was "an Owens-Corning brand, " and Sprinkmann brought this insulation to the various jobsites where he and Gillenwater worked.
¶ 11 Sprinkmann was a thermal insulation contractor, and Ellis Carlton testified he worked for Sprinkmann from 1958 to 1994. By the early 1960s, Carlton was promoted to a position in which he was responsible for ordering all the materials for Sprinkmann.
¶ 12 According to Carlton, the two types of pipe covering that Sprinkmann used the most in the 1970s were Kaylo, sold by Owens-Corning, and Thermobestos, sold by Johns-Manville Corporation (Johns-Manville). Both were a "white chalky fibrous" insulation, "very dusty, " that would "discolor your clothes" if "you brushed up against it." He testified that in the 1960s and early 1970s both Kaylo and Thermobestos contained asbestos, although Sprinkmann also carried insulation for cold-water pipes that was asbestos-free. It was not until 1976 or 1977 that Sprinkmann eliminated all asbestos-containing products from its warehouse.
¶ 13 Carlton testified that whenever representatives of Johns-Manville and Owens-Corning contacted him for the purpose of selling insulation to Sprinkmann, they never mentioned to him that the insulation was hazardous.
¶ 14 Likewise, Gillenwater testified that at no time during his apprenticeship was he informed that the insulation Sprinkmann installed on hot-water pipes at the jobsites where he worked contained asbestos. It was not until the 1980s that he even learned of the dangers of asbestos.
¶ 15 According to Tay, "nobody had a clue" that the insulation contained asbestos. And until the late 1980s or early 1990s, he, too, was unaware that asbestos was harmful.
¶ 16 At trial, it was undisputed that Gillenwater's mesothelioma had resulted from his inhalation of airborne fibers of asbestos.
¶ 17 B. Circumstantial Evidence Offered To Prove a Conspiracy
¶ 18 For some three days in the jury trial, plaintiffs presented evidence that, for several decades, from the early 20th century onward, the three defendants (Owens-Illinois, Honeywell, and Abex) knew asbestos was dangerous to breathe and that, despite such knowledge, they continued making asbestos-containing products without adequately protecting their employees from asbestos dust and they continued concealing the dangers of asbestos from their employees and the public. We need not specifically recount all that evidence. Suffice it to say, the record contains evidence that all three defendants had been contemporaneously committing one or more of the same types of wrongdoing: inadequately protecting their employees from asbestos dust, keeping quiet about the dangers of asbestos or affirmatively concealing or downplaying the dangers, and continuing to use asbestos in their products, without any adequate warning, even after the human cost had become evident.
¶ 19 But was there any evidence that the three defendants intentionally "planned, assisted[, ] or encouraged" Owens-Corning's wrongdoing against Charles Gillenwater, i.e., its selling to Sprinkmann, without adequate warning, asbestos-containing Kaylo insulation, the dust of which Gillenwater inhaled at jobsites while it was being installed? Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 62 (1994); see also McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 133 (1999) ("Civil conspiracy is an intentional tort ***.").
¶ 20 It is difficult to see how two of the defendants, Honeywell and Abex, could be found to have intentionally assisted or encouraged Owens-Corning in its own wrongdoing against Gillenwater, considering that, in the statement of facts in their brief, plaintiffs do not mention that Honeywell and Abex ever interacted with Owens-Corning in any way. Honeywell and Abex appear to be nothing but bystanders, committing wrongs that had nothing to do with Gillenwater.
¶ 21 Plaintiffs describe, however, some interaction or ties between Owens-Illinois and Owens-Corning from the 1930s to the 1950s.
¶ 22 1. Persons Serving as Directors on the Boards of Both Owens-Illinois and Owens-Corning
¶ 23 From 1938 to 1948, Owens-Illinois and Owens-Corning had some of the same directors. The number of directors they had in common varied. Some years it was as few as two directors, and other years it was as many as four directors. Some of these common directors were executive officers of one company or the other.
¶ 24 One of the exhibits that plaintiffs cite in their brief, plaintiffs' exhibit No. 710A, states as follows:
"Owens-Illinois and Owens-Corning had common directors between 1938, when Owens-Corning was formed, and 1948. For five of the years that Owens-Illinois and OF [(Owens-Corning Fiberglas)] had common directors, Owens-Illinois had no asbestos business. Beginning in 1943 and until 1948, Owens-Illinois manufactured only small quantities of asbestos products strictly on an experimental basis. Owens-Illinois started commercial production of Kaylo in 1948, the last year of common directors."
¶ 25 In 1948, Owens-Illinois and Owens-Corning had two directors in common: Harold Boeschenstein, who was the president of Owens-Corning, and William E. Levis, who was the chairman of the board at Owens-Illinois. The record does not appear to reveal the total number of directors each company had on its board.
¶ 26 2. "Weapons in Reserve"
¶ 27 In the early 1940s, employees of Owens-Corning complained that fiberglass was irritating their skin, and because of this discomfort, they demanded more pay. As "weapons in reserve" to use in negotiations with its employees, Owens-Corning obtained medical articles from Owens-Illinois showing that the alternative to fiberglass, asbestos, could be deadly for factory workers to breathe. As it turned out, Owens-Corning continued manufacturing fiberglass insulation without ever having to present this talking point to its employees.
¶ 28 3. The Saranac Study of Kaylo and Owens-Illinois's Reaction to the Study
¶ 29 a. Owens-Illinois Hires Saranac Laboratory To Study the Respiratory Effects of Kaylo Dust
¶ 30 On February 12, 1943, U.E. Bowes, the director of research at Owens-Illinois, wrote to an experimental pathologist, L.U. Gardner of Saranac Laboratory at Saranac Lake, New York, asking him to perform a study. Bowes told Gardner that Owens-Illinois currently had "in the pilot plant stage" a new type of thermal insulation, "a hydrous calcium silicate, " that, when removed from a mold and dried, formed "a porous mass [that could] be sawed like lumber." Bowes was referring to Kaylo. He enclosed samples of Kaylo dust from the "pilot plant" and requested Gardner to determine whether the dust was an "air hazard."
¶ 31 Bowes wrote: "[The respiratory safety of Kaylo dust] should be considered from the standpoint of employees working in the plant where the material is made or where it may be sawed to desired dimensions, and also considered from the standpoint of applicators or erectors at the point of use."
¶ 32 b. Gardner's Early Expression of Concern to Bowes
¶ 33 On March 12, 1943, Gardner wrote to Bowes, thanking him for "further information on the composition of [his] synthetic insulating material."
¶ 34 Then Gardner remarked:
"I am disappointed to hear that what we thought to be synthetic asbestos proved to be chrysotile [asbestos] which had been added as a reinforcing agent.
The fact that you are starting with a mixture of quartz and asbestos would certainly suggest that you have all the ingredients for a first class hazard. However, the particle size of the former will, of course be determined.
The asbestos may or may not be in such form as to be inhalable."
¶ 35 Gardner then provided an estimate of how much the necessary tests and animal experiments would cost.
¶ 36 c. Gardner's Successor, Vorwald, Informs Bowes That Prolonged Exposure to Kaylo Dust Causes Asbestosis in Guinea Pigs
¶ 37 On November 16, 1948, Gardner's successor at Saranac Laboratory, Arthur J. Vorwald, wrote to Bowes to give him an update on the Kaylo dust experiments. Enclosed with his letter was an interim report.
¶ 38 The experiments had been proceeding for some 36 months, and in his letter Vorwald summarized the results. As stated in a previous interim report that the laboratory had sent to Owens-Illinois, animals exposed to Kaylo dust for 30 months showed no adverse effects. It now emerged, though, that after being exposed to Kaylo dust for more than 30 months, the animals showed signs of asbestosis. Vorwald wrote:
"[T]he experimental study of the effects of inhaled Kaylo dust on normal uninfected animals is now finished and conclusions expressed on that subject are final rather than tentative.
In the report issued one year ago, which describes the findings in animals that inhaled Kaylo dust for periods up to 30 months, the following tentative conclusion was made:
'In consequence of the experimental studies with guinea pigs to determine the biological activity of Kaylo, it may be tentatively concluded that Kaylo alone fails to produce significant pulmonary damage when inhaled into the lung.'
During the 30 to 36 months [sic] period, however, definite indication of tissue reaction appeared in the lungs of animals inhaling Kaylo dust and therefore, I regret to say, our tentative conclusion quoted above must be altered. In all animals sacrificed after more than 30 months of exposure to Kaylo dust unmistakable evidence of asbestosis has developed, showing that Kaylo on inhalation is capable of producing asbestosis and must be regarded as a potentially-hazardous material."
¶ 39 In the concluding paragraph of his letter, Vorwald wrote:
"I realize that our findings regarding Kaylo are less favorable than anticipated. However, since Kaylo is capable of producing asbestosis, it is better to discover it now in animals than later in industrial workers. Thus the company, being forewarned, will be in a better position to institute adequate control measures for safeguarding exposed employees and protecting its own interests."
¶ 40 d. Vorwald's Cover Letter to the Final Report
¶ 41 As we said, the November 1948 report was an interim report. On February 7, 1952, Vorwald sent W.G. Hazard of the Industrial Relations Division of Owens-Illinois the final report.
¶ 42 Vorwald wrote in his cover letter to the final report:
"The results of the investigations with animals show that Kaylo dust is capable of producing a peribronchiolar fibrosis typical of asbestosis. The dust also has a slightly unfavorable influence upon a tuberculosis infection. Although extrapolation from animal to human experience is difficult, nevertheless the results of the study indicate that every precaution should be taken to protect workers against inhaling the dust. Therefore, control measures should be directed to reducing the amount of atmospheric dust, especially at those points of operation where dust is generated."
¶ 43 e. The Final Report
¶ 44 The final report from Saranac Laboratory, dated January 30, 1952, and enclosed with Vorwald's letter of February 7, 1952, was entitled "Investigation Concerning the Capacity of Kaylo Dust To Injure the Lung."
¶ 45 In its introduction, the report stated:
"Before Kaylo was used commercially on a large scale, it was important to determine whether or not any dust liberated from this product during manufacture, handling or fabrication would be likely to constitute a respiratory hazard to exposed individuals. Therefore, a comprehensive investigation was undertaken in which the effect of inhaled Kaylo dust on animals was studied. The investigation was started in February 1945 and was carried on for more than five years."
¶ 46 In another section, the report described this lengthy "inhalation experiment." About 450 animals–guinea pigs, rats, and hamsters–were confined in "a cubical dust room, 8 feet in dimension." For eight hours a day, five days a week, and for four hours on Saturdays, a Kaylo dust cloud was maintained in this cubical room by rotating a paddle in a hopper. "The room was operated for more than five years, from February 1945 to June 1950, " and "some [animals] lived in the dust room for as long as 3 years." At regular intervals during the experiment, some ...