The Illinois Supreme Court recently heard oral arguments in Jones v. Pneumo Abex LLC, 2018 IL App (5th) 160239, where Plaintiffs, John and Deborah Jones, sued brake lining company Pneumo Abex (“Abex”) and glass bottle maker Owens-Illinois (“O-I”) for injuries John Jones allegedly suffered due to asbestos exposure during his construction career. Although Jones never worked for Defendants and never used or was exposed to any product of Defendants, Plaintiffs allege that Defendants entered into a civil conspiracy with the asbestos industry at large including Johns-Manville, an insulation and roofing materials manufacturer, to conceal the harmful health effects of asbestos exposure. In their complaint, Plaintiffs relied solely on circumstantial evidence to support their allegations of a conspiratorial agreement, including. (1) an Abex funded study on asbestos dust with Saranac Laboratory (the “Saranac report”) where a mice study revealing tumors was omitted from the published report; (2) a 1953 Sales Agreement between O-I and Owens Corning Fiberglas Corp. (“OCF”) for the sale of Kaylo insulation; (3) “non-toxic” ads that were issued by O-I and later by OCF; (4) O-I’s sharing of two asbestos health articles from 1941, (5) a unilaterally sponsored O-I study of Kaylo insulation involving exposure to lab animals; and (6) overlapping directors and stock ownership of O-I in OCF.

At the trial court level, Defendants successfully moved for summary judgment arguing that Plaintiff’s evidence of conspiratorial conduct was legally insufficient based on the Supreme Court decision in McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102 (1999)(holding that parallel conduct by itself is legally insufficient evidence of conspiracy). Specifically, Defendants averred that Plaintiffs had not met the clear and convincing evidence standard required to prove conspiratorial conduct at the summary judgment stage, especially in light of McClure’s parallel conduct and innocent construction rules. As such, Defendants argued that the summary judgment standard should mirror the directed verdict standard, as all existing evidence was before the court. Defendants supported their arguments by citing a series of Fourth District decisions finding there was insufficient evidence to show Abex had agreed with other companies to suppress or misrepresent the health hazards of asbestos: Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463; Menssen v. Pneumo Abex Corp., 2012 IL App (4th) 100904, and Gillenwater v. Honeywell International, Inc., 2013 IL App (4th) 120929. Plaintiffs subsequently appealed, arguing that, to the contrary, genuine issues of material existed that should have gone to a jury.

On appeal, the Fifth District reversed the trial court’s decision, holding that a judge could reasonably conclude that a conspiracy was in place where: (1) Abex sought to suppress the mice study in its Saranac report; (2) O-I continued selling Kaylo insulation after it was known as a respiratory hazard as early as 1952; and (3) O-I failed to place markings on Kaylo packaging despite knowing of respiratory issues until the late 1960. The Fifth District agreed with Plaintiffs’ argument that material issues of fact existed in the case and the lower court had usurped the jury’s function by granting Defendant’s motion for summary judgment. Defendants appealed the Fifth District’s decision, arguing that the court neglected the McClure holding and its progeny of Fourth District case law declining to find conspiratorial agreements among asbestos manufacturers.

During oral arguments, Abex argued that the omitted mice study in its Saranac report was insignificant because the Saranac report’s leading scientists determined that the results were medically negligible. Additionally, Abex argued that under Fourth District case law, electing not to publish certain information in medical studies cannot be direct evidence of a conspiracy to satisfy the clear and convincing evidentiary burden at the summary judgment stage. Abex argued that under McClure, there was not sufficient evidence presented beyond parallel conduct that indicated a conspiracy existed. O-I similarly argued that the Fifth District failed to follow the holding in McClure and properly apply the clear and convincing evidentiary standard and the parallel conduct and innocent construction rules to the litigation. In their oral arguments, Plaintiffs maintained that there were triable issues of fact that were for a jury to decide as to Abex’s omissions in the Saranac report and O-I’s involvement with OCF regarding historical Kaylo sales.

The Illinois Supreme Court’s awaited decision in this case will hopefully resolve part of the decades-long conspiracy litigation seeking to hold these Defendants liable for products they never made or sold and will decide the applicability of Rodarmel at the summary judgment stage.  The Fourth District’s decision in Rodarmel held that an agreement not to publish the mice study did not qualify as conspiratorial conduct, which left the conspiracy claim supported only by parallel conduct, which is insufficient by itself to support a conspiracy finding. In contrast, here the Fifth District held that the reasoning of Rodarmel only applied after trial, not at the summary judgment stage since it was too early in the case to declare the evidence legally insufficient. From a public policy standpoint, Defendants argued that requiring trial courts to conduct repetitive, wasteful trials, creates the very risk of “expand[ing] the civil conspiracy theory ‘beyond a rational or fair limit” that McClure said must be avoided.  Whether or not the Illinois Supreme Court will affirm the propriety of Rodarmel and its applicability in the context of summary judgment proceedings thus resolving this long standing conspiracy litigation is yet to be seen.

For more information, please contact Danielle Luisi. This article was published as part of the Toxic Tort Monitor. You can read the full edition here.