$80 million decision: Fourth District agrees with McLean Co.'s rejection of asbestos conspiracy theory

By Steve Korris | Sep 26, 2013


SPRINGFIELD – McLean County Circuit Judge Scott Drazewski correctly erased a jury’s $80 million award of punitive damages in an asbestos conspiracy case, Fourth District appellate judges ruled on Sept. 18.

Jurors had awarded Charles Gillenwater $40 million from Owens-Illinois and $20 million each from Honeywell International and Pneumo Abex as successors to brake makers Bendix and American Brake and Block.

Justice Thomas Appleton wrote that Gillenwater showed parallel conduct between Owens-Corning and Owens-Illinois, but he didn’t prove they conspired.

“One company did not have to tell another to continue making money,” Appleton wrote. “One company did not have to tell another on which side its bread was buttered.

“As a matter of law and also as a matter of language, it is impossible to find clear and convincing evidence of a conspiracy if a nonconspiratorial explanation would be a reasonable alternative.”

He wrote that it would be speculation to posit a conspiracy on parallel conduct that is in each company’s interests, adding that “tort liability cannot rest on speculation.”

“Honeywell and Abex appear to be nothing but bystanders, committing wrongs that had nothing to do with Gillenwater,” he wrote.

Appleton found no evidence that they interacted with Owens-Corning in any way.

Jurors separately awarded $8.4 million against gasket maker John Crane, leading to appeal and settlement.

Gillenwater claimed he suffered mesothelioma because he breathed dust from Kaylo brand insulation while working as a pipefitter in the 1970s.

Owens-Illinois began commercial production of Kaylo in 1948.

In 1952, a doctor who studied the effects of Kaylo dust recommended taking every precaution to protect workers against inhaling the dust.

In 1953, Owens-Corning agreed to market Kaylo and distribute it for Owens-Illinois.

In 1958, Owens-Illinois sold its Kaylo division to Owens-Corning.

Owens-Corning began to affix warning labels in 1966, but Appleton wrote that the labels said nothing about asbestosis or cancer.

In 1972, Owens-Corning sold $9.4 million of Kaylo.

“Consumers surely would not have been so avid to buy the chalky, fibrous insulation if they knew it scarred the lungs of whomever breathed the dust, in addition to causing mesothelioma, and that troublesome dust control measures would be necessary whenever the insulation was sawed into usable pieces – if the insulation could be safely used at all,” Appleton wrote.

He defined Owens-Corning as a wrongdoer but added that he looked for clear and convincing evidence that any defendant encouraged Owens-Corning to do wrong.

“To be precise, it is not a wrong, it is not a tort, merely to conceal the hazards of asbestos exposure,” he wrote.

Appleton wrote that a manufacturer has a duty to warn of the dangers of its own products but no duty to warn of the dangers of asbestos in the abstract.

He wrote that the agreement between Owens-Corning and Owens-Illinois implied an understanding that the potential danger would be concealed or not disclosed.

“Otherwise, the distributorship agreement would have been pointless; as a practical matter, Kaylo would have been unmarketable if its risk were disclosed,” Appleton wrote.

“How long, though, does such a conspiracy last?”

He wrote that the agreement ended when Owens-Illinois sold its Kaylo division, in 1958, and Gillenwater was first exposed to Kaylo in 1972.

“To say the conspiracy continues as long as the conspirators conceal the conspiracy could extend the life of the conspiracy indefinitely,” he wrote.

“The record gives no basis for supposing that, after 1958, Owens-Illinois cared whether Owens-Corning sold any more Kaylo.”

He wrote that the continued silence of Owens-Illinois did not prevent it from withdrawing from the conspiracy by selling the Kaylo division.

A manufacturer is responsible only for products it manufactured, and that Owens-Illinois did not manufacture the Kaylo that gave Gillenwater mesothelioma, he wrote.

“It would be unfair to impose liability on a manufacturer for a defect in a product unless the manufacturer had the opportunity to avoid liability by stopping the assembly line that produced that particular product,” he wrote.

“Upon selling the Kaylo division to Owens-Corning, Owens-Illinois lost its power to stop the assembly line.

“To make Owens-Illinois liable for the Kaylo that Owens-Corning continued to churn out would make Owens-Illinois an insurer of Owens-Corning.”

Appleton wrote that Gillenwater adduced no evidence tending to exclude the possibility that Owens-Corning and defendants acted independently in their parallel conduct.

He wrote that the parallel conduct has an innocent explanation.

“And in this context, innocent does not mean innocent of all wrongdoing whatsoever but innocent of a particular kind of wrongdoing: a conspiracy,” he wrote.

“In the jury trial, plaintiffs portrayed Owens-Corning and defendants as caring only about making money, even at the expense of people’s lives.

“But, given that portrayal, why would one need to posit a conspiratorial agreement to explain these companies’ continuing to do the wrongful things whereby they each were making a lot of money?

Justices James Knecht and John Turner concurred.

The Justices also held that Drazewski correctly granted summary judgment prior to trial against a claim that wife Donita lost consortium.

They found no evidence that Charles was exposed to asbestos after marrying her.

“It is a fundamental principle of tort law that the defendant incurs liability to the plaintiff only by breaching a duty that the defendant owes the plaintiff at the time of the wrongful act or omission,” Appleton wrote.

James Wylder of Bloomington represented Gillenwater.

Fourth District judges rejected Wylder's conspiracy theory in 2011, and his effort to adjust the theory for Gillenwater's trial made no difference in the outcome on appeal.

Robert Riley of Chicago represented Owens-Illinois; Craig Zimmerman of Chicago represented Honeywell and Reagan Simpson of Austin, Texas, represented Pneumo Abex.


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