June 30, 2011
Illinois Appellate Court reverses asbestos verdict based on alleged conspiracy
On June 22, 2011, in a 2-1 decision, the Illinois Appellate Court for the Fourth District reversed a judgment against Honeywell and Abex, jointly and severally, in the amount of $1,543,361.66 in a household, secondary exposure case. Holmes v Pneumo Abex L.L.C., No. 4-10-0462 (June 22, 2011).
The background from the opinion:
In May 2006, plaintiff filed a complaint against defendants and others for the wrongful death of his mother, Jean Holmes. The complaint alleged decedent’s husband, Donald Holmes, worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment, Holmes was exposed to asbestos and brought the fibers home on his clothes and person, which exposed decedent to the asbestos. Decedent was diagnosed with mesothelioma, and she died in April 2006.
Plaintiff alleged defendants, along with Unarco, Johns-Manville Corporation (Johns-Manville), Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.) (Raybestos), Owens Corning, Owens-Illinois, and Metropolitan Life Insurance Company (MetLife), conspired to suppress information about the harmful effects of asbestos and refused to warn employees about the hazards of asbestos. Plaintiff claimed defendants’ agreements and acts done in furtherance thereof proximately caused decedent’s injury and death. Honeywell is the successor by merger to the Bendix Corporation (Bendix), which manufactured automotive brakes and brake linings. At the relevant times, brake linings, including those made by Bendix, were made with chrysotile asbestos. Bendix’s largest supplier of raw chrysotile was Johns-Manville. Abex is the successor to a variety of entities, the original being American Brake Shoe & Foundry Company. Abex made automotive brake products and brake linings with chrysotile asbestos.
In February 2009, plaintiff’s case proceeded to a jury trial. As the parties are familiar with the facts in this case, we will set forth only those facts necessary for the proper disposition of this appeal. The parties do not dispute that decedent developed peritoneal mesothelioma, which caused her death at age 93. Peritoneal mesothelioma has been associated with exposure to asbestos. It was also undisputed that decedent’s only exposure to asbestos fibers was on the work clothes of her husband, who worked at the Unarco manufacturing plant in Bloomington from 1962 to 1963. The asbestos was supplied to Unarco by Johns-Manville and Raybestos. It was undisputed that decedent and her husband were never exposed to any Bendix or Abex products.
Plaintiff presented evidence that showed multiple companies, including Johns-Manville, Raybestos, and Abex entered into a written agreement in 1936 with the Saranac Laboratory (Saranac agreement) to sponsor research on industrial dusts. The evidence showed an agreement among some of the companies to reduce or de-emphasize references to asbestosis in a 1935 asbestos industry study prepared by Dr. Anthony Lanza of MetLife; to have references to lung cancer in animals and asbestosis or cancer in humans deleted from a 1948 asbestos study prepared by Dr. Leroy Gardner and Dr. Arthur Vorwald of Saranac Laboratory and to keep the study and its underlying data from being disseminated to the public; and to prevent publication from 1935 to 1969 of any articles about the dangers of asbestos in Asbestos magazine.
Evidence showed Unarco, Johns-Manville, Raybestos, and Abex did not change their business practices concerning asbestos or attempt to warn their employees. Plaintiff also presented evidence as to the activities of Owens Corning and Owens-Illinois. Owens-Illinois received a 1948 report from Dr. Vorwald that concluded its asbestos-containing Kaylo pipe and block insulation was a potentially hazardous material and capable of producing asbestosis. In various journals, Owens-Illinois and Owens Corning sold Kaylo insulation stating it was “nonirritating” and “nontoxic.”
Plaintiff’s expert, Dr. Barry Castleman, a consultant specializing in toxic substances control, testified he had no information that Bendix was aware of communications that were taking place between Raybestos, Johns-Manville, and MetLife as to the study by Dr. Lanza. He was not aware of Bendix being involved in any effort to prevent Asbestos magazine from publishing articles about asbestos. Dr. Castleman had no knowledge that Bendix ever knew or approved of the Saranac agreement or that it had known about Dr. Gardner’s critical study. He also had no knowledge of any communication between Bendix and Owens-Illinois or Owens Corning.
Dr. Castleman testified Bendix was a member of the Friction Materials Standards Institute (FMSI), a trade organization made up of brake-lining manufacturers. Joel Charm testified Bendix and American Brake Shoe & Foundry Company had a single member of their respective board of directors in common from 1930 to 1934. Bendix and Johns-Manville also had a single member in common on their board of directors from 1959 to 1963.
William Dyson, an industrial hygienist, testified for defendants. He stated he prepared a bibliography of household exposure articles and listed a 1960 article by Dr. J.C. Wagner that spoke to mesothelioma as a result of take-home exposure to a family member.
Following closing arguments, the jury found for plaintiff and against both defendants. The jury assessed $2,632,611.66 in damages. The trial court later entered an amended judgment against defendants, jointly and severally, in the amount of $1,546,361.66. In May 2009, Honeywell and Abex filed posttrial motions, which the court denied. This appeal followed.
The Fourth District found that no relationship existed between the defendants and the decedent and thus, defendants owed no duty to decedent. The Fourth District analogized its decision in Holmes with the Second District’s decision in Nelson v. Aurora Equipment Co., 391 Ill.App.3d 1036, 1037, 909 N.E.2d 931, 933 (2d Dist.2009). The Holmes and Nelson opinions, however, are counter to the Fifth District’s opinion in Simpkins v CSX Corp., 401 Ill.App.3d 1109, 1119, 929 N.E.2d 1257, 1266 (5th Dist. 2010) which found a duty to individuals such as Mrs. Holmes. Simpkins is on appeal to the Illinois Supreme Court.
Further, the Holmes court stated that even if they were to find a relationship between the parties, there would be no duty because the danger of household exposure was not reasonably foreseeable until after decedent's husband worked at the UNARCO plant. Plaintiff’s own expert, Dr. Castleman testified that the first epidemiological study applicable to “take-home” exposures was at the earliest the Newhouse and Thompson publication in October 1964.
In dissent, Justice Knecht indicated his agreement with the Fifth District’s opinion in Simpkins. The Justice stated, "One does not require an epidemiological study to recognize disease and death from asbestos exposure dating back to the nineteenth century."
James Wylder of Wylder Corwin and Kelly represents the Holmes family and the case was tried in McLean County, located in the Fourth Appellate District.