Fourth District reverses asbestos verdict; Justices also overrule conspiracy precedents

Steve Korris Jul. 20, 2011, 5:55am



SPRINGFIELD – Asbestos witness Barry Castleman's testimony involving eight cancerous mice can no longer support the heavy load of asbestos litigation in McLean County, Fourth District appellate judges decided on July 15.

They reversed Circuit Judge Scott Drazewski, who entered judgment ordering Honeywell and Pneumo-Abex to pay Juanita Rodarmel $683,333.

They overruled two Fourth District precedents that had sustained a series of unique conspiracy trials where jurors held the living liable for deeds of the dead.

Verdicts have swelled year after year, peaking at $90 million earlier this year.

At each trial, Castleman testified for clients of James Wylder that companies conspired to hide a report from 1943, finding tumors in 8 of 11 laboratory mice.

The appellate court found the companies suppressed the report because researcher LeRoy Gardner told them it lacked controls and meant nothing.

"It cannot be unlawful to hide information that is devoid of significance," Justice Thomas Appleton wrote.

"We are not qualified to opine that, in the absence of controls, tumors in eight or nine out of 11 mice – tumors that might not have been malignant (no one seems to know for sure ) – were scientific evidence of a causal relationship between asbestos and cancer in humans," he wrote.

"And the jury was no more qualified than we are in that respect," he wrote.

Appleton wrote that it was unclear what qualifications Castleman had in the field of pathology or in cancer experiments with mice.

"He apparently was not a medical doctor or a veterinarian," Appleton wrote.

"So that leaves no one – that is, no one with relevant expertise – opining that the eight or nine tumorous mice, in an uncontrolled experiment, were scientific evidence of a causal relationship between asbestos and cancer in humans," he wrote.

Justices John McCullough and John Turner concurred.

They overruled a decision from 2000, that suppression of the report counted as evidence of agreement between asbestos producer Johns-Manville and Abex predecessor American Brake and Block.

They overruled a decision from 2008, Dukes v. Pneumo-Abex, allowing four pieces of evidence in support of the conspiracy theory.

Appleton mocked the decision for allowing evidence that Johns-Manville helped Honeywell's predecessor, brake maker Bendix, in writing a position paper.

"If this paper is evidence of a conspiracy, so is the New England Journal of Medicine," he wrote.

He trashed the Dukes decision for holding that membership of companies in trade associations counted as evidence of conspiracy.

"Joining a trade organization was just as consistent with innocence as with guilt," he wrote.

He rejected the finding in Dukes that Bendix's purchases of Johns-Manville asbestos counted as evidence of agreement to hide its dangers.

He wrote that "manufacturers had to buy raw asbestos from someone, and that someone was probably Johns-Manville."

Finally, he overruled Dukes for allowing evidence that a Bendix director also served as a director of Johns-Manville and American Brake and Block.

"Implying a conspiratorial agreement from a shared director would be speculation, and liability based on such speculation is contrary to tort principles in Illinois and to the clear and convincing standard of proof applicable in civil conspiracy cases," he wrote.

Rodarmel's jury awarded $2 million in compensation, $400,000 in punitive damages against Honeywell, and $100,000 in punitive damages against Abex.

Drazewski cut compensatory damages to $183,333, after subtracting amounts other companies had paid to settle Rodarmel's claims.

The Fourth District, having sent a message to Bloomington, sent a message to nearby Illinois Supreme Court Justices.

They held that Drazewski's jury improperly found a duty on the part of employers, in the 1950s, to warn workers against carrying asbestos dust home on their clothes.

Appleton wrote 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."

That part of the decision might lack legal force because a similar "take home exposure" case awaits a decision at the Supreme Court.

In that case, Simpkins v. CSX Transportation, Fifth District appellate judges in Mount Vernon ruled that employers had a duty to warn workers.

In yet another take home exposure case, Second District judges found no duty.

The Fourth District had already rejected take home claims, in a June 22 decision from another McLean County conspiracy trial.

In that case, jurors assessed $2,632,612 in damages against Honeywell and Abex for the wrongful death of Jean Holmes, who died at age 93.

Drazewski reduced the verdict to $1,546,362, and entered judgment.

At the Fourth District, Turner and Appleton reversed judgment.

"Defendants argue they are entitled to judgment notwithstanding the verdict because no relationship existed between them and decedent and thus no duty was owed to her," Turner wrote.

"We agree. Even if we were to find a relationship existed between the parties as the Fifth District found in Simpkins, we would find no duty existed because of the lack of foreseeability in this case."

Justice James Knecht dissented, finding the injury foreseeable and the risk high.

"This is not a step toward unlimited liability," he wrote.

"This was the worker's wife who greeted him at the door, cooked his meals, and washed the very clothes that brought poison into their home," he wrote.

Knecht didn't hear the Rodarmel appeal.

Turner heard both, and preferred his narrow ruling against take home claims to Appleton's broad assault on Wylder's conspiracy theory.

"Although I concur in the result reached by the majority, I find this court's opinion in Holmes dispositive of the outcome," he wrote.

"Thus, I would reverse the trial court's judgment based upon the absence of duty, and I find unnecessary the majority's analysis on whether the evidence was sufficient to find Honeywell and Abex guilty of the tort of civil conspiracy," he wrote.

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