Fourth District reverses $17.8 million verdict in asbestos conspiracy case

Bethany Krajelis Sep. 4, 2012, 9:42am



A split panel of the Fourth District Appellate Court has reversed a $17.8 million verdict in a McLean County asbestos conspiracy case, saying the lower court erred in denying the defendants' motions for a judgment notwithstanding the verdict.

The majority of the panel relied on the Fourth District's 2011 ruling in Rodarmel v. Pneumo Abex to come to its conclusion that plaintiff Jayne Menssen did not present sufficient evidence to prove that Honeywell International and Pneumo-Abex conspired with other corporations to suppress the health hazards of asbestos exposure.

Justice Robert Steigmann delivered the panel's Aug. 31 decision. Justice John Turner specially concurred in the opinion and Justice Robert Cook dissented.

In his nearly five-page dissent, Cook asserted that the lower court did not abuse its discretion when it denied the defendants' motions.

Cook wrote that Menssen presented persuasive evidence that Honeywell, the successor to brake maker Bendix, and Abex, the successor to American Brake and Block, conspired with other companies to prevent the publication of information from a study on the health hazards of asbestos.

The split ruling stems from a lawsuit Menssen filed in 2009 against Pneumo Abex, Honeywell and a few other companies.

Her suit sought to recover damages for the pleural mesothelioma that Menssen alleges she suffered as a result of being exposed to asbestos while employed at the Union Asbestos and Rubber Company (UNARCO) in Bloomington.

Menssen worked at UNARCO, a manufacturer and distributor of asbestos and asbestos products, from 1967 to 1969 and claimed that during her time there, she inhaled asbestos fibers manufactured by Abex and Honeywell, among other companies.

Her suit accused Abex, Honeywell and UNARCO of entering into a civil conspiracy by agreeing to suppress information about the effects of asbestos and falsely asserting that exposure to asbestos was safe.

To bolster her conspiracy argument, Menssen presented evidence that Abex allegedly conspired with eight other corporations to conceal information from a study that Dr. LeRoy U. Gardner conducted on the effects of asbestos more than seven decades ago through the use of mice.

Two years after Gardner died, the Saranac Laboratory prepared the final report of Gardner's findings and sent it to Johns-Manville, which supplied asbestos to Abex and was one of the nine corporations that financed the study.

The general counsel of Johns-Manville passed on the draft report to the other financing corporations, the majority of which later met and voted to delete references to cancer and tumors from the final published report.

The Saranac Laboratory in 1951 published the report, which did not include any references to tumors and malignancies in the mice, according to the appellate court opinion.

In February 2010, a McLean County jury returned a verdict in favor of Menssen and against Abex and Honeywell. It awarded Menssen $3.5 million in compensatory damages, $4.37 million in punitive damages against Abex and $10 million against Honeywell for a total verdict of about $17.8 million.

The two companies appealed, alleging numerous deficiencies.

Writing for the majority of the appeals panel, Steigmann said that because it considered the Fourth District's opinion in Rodarmel as dispositive, it only needed to address the companies' claim that the trial court erred in denying their motions for judgment notwithstanding the verdict.

In Rodarmel, according to the majority opinion, the plaintiffs sued Abex and Honeywell, claiming the companies conspired with others to falsely assert that asbestos exposure was safe and to withhold information about the effects of asbestos.

Like Menssen's case, the two companies in Rodarmel filed motions for a judgment notwithstanding the verdict, which the trial court denied.

On appeal, the Fourth District relied on the Illinois Supreme Court's 1999 decision in McClure v. Owens Corning Fiberglas Corp. to reject Rodarmel's claim that the evidence presented, which included details on the study, was proof of the defendants' participation in a civil conspiracy.

In McClure, the state high court determined that in order to recover damages under a civil conspiracy claim, "the plaintiff must prove an agreement and a tortious act committed in furtherance of the agreement," which "must be knowingly and intentionally made," Steigmann wrote.

The state high court in May denied a petition for leave to appeal filed by the plaintiffs in Rodarmel, letting the appellate court ruling stand.

Based on Rodarmel and McClure, Steigmann wrote that the appeals panel reversed the lower court's ruling 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."

Although Menssen presented more information than the plaintiffs in Rodarmel did and her exposure occurred later, Steigmann wrote that neither the additional evidence nor the expanded time frame "clearly and convincingly shows a conspiratorial agreement among corporations in the asbestos industry."

"Simply put," Steigmann wrote, "the additional evidence merely shows the continued efforts Bendix engaged in—on its own accord and initiative—to misrepresent and suppress the dangers of asbestos exposure despite the increasing cascade of medical and scientific literature to the contrary."

When it came to Menssen's arguments over the study published by the Saranac Laboratory, the appeals panel also relied on the Rodarmel ruling in its analysis.

The court in Rodarmel noted that Abex didn't enter into a conspiratorial agreement to conceal information about the study's findings over tumorous mice because concealing information that has no significance can't be unlawful.

The Rodarmel court noted that a doctor who evaluated Gardner's grant request to further study cancer and asbestos said his findings were "not of any tremendous value."

In his dissent, Cook wrote that "it is surprising that this court would conclude that the suppression of the results of the Saranac Laboratory research was no big deal."

"Johns-Manville did not do anything wrong? UNARCO did not do anything wrong? That approach is inconsistent with previous decisions and with our supreme court's decision in McClure," Cook wrote. "There was direct evidence that UNARCO and Johns-Manville prevented information about the health hazards of asbestos from being published."

Although Cook agrees that a plaintiff must show there was an agreement in order to state a claim for civil conspiracy, he cited McClure in his dissent to argue that a defendant company can be held liable as a conspirator if it "understands the general objectives of the conspiratorial scheme, accepts them, and agrees, either explicitly or implicitly[,] to do its part to further those objectives.

"It is not necessary that defendant admit the conspiracy; evidence of an implicit agreement is enough," Cook wrote in his dissent.

Pointing to meetings, conferences and phone calls between Honeywell, Abex and Johns-Manville regarding the study and their desire to keep the draft report confidential, Cook wrote "there was persuasive evidence, both explicit and implicit, of an agreement here."

"Of course the defendants attached excuses to their decisions to suppress, in an attempt to justify those decisions," Cook wrote. "We should not give undue weight to those excuses."

As such, Cook wrote that he believes the lower court did not abuse its discretion when it denied the defendants' motions for a judgment notwithstanding the verdict.

Texas attorney Reagan Simpson, who serves on the legal team representing Abex, said his client was pleased with the recent appellate court ruling. Simpson also argued on Abex's behalf in the Rodarmel case.

Bloomington attorneys James Wylder and Lisa Corwin represented Menssen before the appellate court. Wylder did not immediately return a message today seeking comment as to whether his client planned to appeal to the Illinois Supreme Court.

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