                           ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




                  Menssen v. Pneumo Abex Corp., 2012 IL App (4th) 100904




Appellate Court            JAYNE MENSSEN, Plaintiff-Appellee, v. PNEUMO ABEX
Caption                    CORPORATION, PNEUMO ABEX, LLC, METROPOLITAN LIFE
                           INSURANCE COMPANY, OWENS-ILLINOIS, INC., and
                           HONEYW ELL INTERNATIONAL, INC., Defendan t s -
                           Appellants.–JAYNE MENSSEN, Plaintiff-Appellee, v. HONEYWELL
                           INTERNATIONAL, INC., Defendant-Appellant.



District & No.             Fourth District
                           Docket Nos. 4-10-0904, 4-10-0921 cons.


Filed                      August 31, 2012


Held                       In actions alleging that defendants engaged in a conspiracy to
(Note: This syllabus       misrepresent or suppress the hazards of asbestos exposure, defendants’
constitutes no part of     motions for judgment n.o.v. were improperly denied, since, pursuant to
the opinion of the court   Rodarmel, plaintiff’s evidence was not sufficient to prove such a
but has been prepared      conspiracy.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McLean County, No. 09-L-71, the Hon.
Review                     G. Michael Prall, Judge, presiding.



Judgment                   Reversed.
Counsel on                Reagan W. Simpson, of King & Spalding LLP, of Austin, Texas, Amy
Appeal                    Eikel, of King & Spalding, of Houston, Texas, Robert W. Scott, of
                          Swain, Hartshorn & Scott, and Karen L. Kendall and Craig L. Unrath,
                          both of Heyl, Royster, Voelker & Allen, both of Peoria, Craig H.
                          Zimmerman, Colleen E. Baime, and Michael W. Weaver, all of
                          McDermott Will & Emery LLP, of Chicago, Dennis J. Dobbels, of
                          Polsinelli, Shalton, Welte & Suelthaus, P.C., of Edwardsville, and Nicole
                          C. Behnen and Luke J. Mangan, both of Polsinelli, Shalton, Welte &
                          Suelthaus, P.C., of St. Louis, Missouri, for appellants.

                          Lisa Corwin and James Wylder, both of Wylder Corwin Kelly LLP, of
                          Bloomington, for appellee.


Panel                     JUSTICE STEIGMANN delivered the judgment of the court, with
                          opinion.
                          Presiding Justice Turner specially concurred in the judgment, with
                          opinion.
                          Justice Cook dissented, with opinion.




                                            OPINION

¶1           In March 2009, plaintiff, Jayne Menssen, sued defendants, Pneumo Abex, LLC, the
        successor of Pneumo Abex Corporation (Abex), and Honeywell International, Inc.
        (Honeywell), the successor of the Bendix Corporation (Bendix), among others, to recover
        damages for a malignancy caused by exposure to asbestos that occurred while Menssen was
        employed at the Union Asbestos and Rubber Company (UNARCO). Menssen’s suit alleged
        that Abex, Honeywell, and UNARCO entered into a civil conspiracy to (1) falsely assert that
        exposure to asbestos was safe and (2) suppress information about the harmful effects of
        asbestos.
¶2           In February 2010, a jury returned a verdict in favor of Menssen and against Abex and
        Honeywell, awarding Menssen $3.5 million in compensatory damages, as well as punitive
        damages of $4.37 million against Abex and $10 million against Honeywell.
¶3           Abex and Honeywell appeal, alleging numerous deficiencies. Because we view this
        court’s decision in Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463, 957
        N.E.2d 107, as dispositive, we address only the claim raised by Abex and Honeywell that the
        trial court erred by denying their respective motions for a judgment notwithstanding the
        verdict (judgment n.o.v.). Consistent with our decision in Rodarmel, we reverse the court’s
        judgment because the evidence Menssen presented was insufficient to prove Abex or

                                                -2-
       Honeywell conspired with other corporations to misrepresent or suppress the health hazards
       of asbestos exposure.

¶4                                      I. BACKGROUND
¶5         From 1967 to 1969, UNARCO, a manufacturer and distributor of asbestos and asbestos
       products, employed Menssen. In her March 2009 complaint, Menssen claimed that (1) during
       her employment at UNARCO, she inhaled asbestos fibers and (2) she was exposed to
       asbestos products manufactured by, among others, Abex and Honeywell. Menssen alleged
       that this exposure later caused her to suffer from pleural mesothelioma–a malignancy of the
       membrane that surrounds the chest and lungs. Although her March 2009 complaint did not
       identify UNARCO as a defendant, Menssen alleged that UNARCO conspired with Abex and
       Honeywell to (1) falsely assert that exposure to asbestos was safe and (2) suppress
       information about the harmful effects of asbestos. Menssen alleged further that this
       conspiracy and the subsequent conduct in furtherance thereof proximately caused her illness.
¶6         Although Menssen was never employed by Abex or Honeywell, she introduced evidence
       to show that the actions Abex and Honeywell, as well as their predecessors, took with regard
       to their respective asbestos operations were parallel to–that is, consistent with–the conduct
       taken by the other alleged coconspirators. The theory underlying Menssen’s civil-conspiracy
       claim was that Abex and Honeywell conspired with other corporations in the asbestos
       industry to misrepresent and suppress the health hazards of asbestos exposure. In particular,
       Menssen posited that despite knowing the dangers of asbestos exposure, Abex and
       Honeywell (1) sold products containing asbestos without health-hazard-warning labels and
       (2) failed to adequately protect their employees from exposure to asbestos. With regard to
       Abex, Menssen also claimed that it conspired with eight other corporations in the asbestos
       industry to unlawfully conceal information about the carcinogenic effect of asbestos from a
       scientific study.
¶7         At a trial that began in January 2010, Menssen presented evidence consistent with her
       claims, the majority of which was factually indistinguishable in any appreciable measure
       from the evidence presented in Rodarmel–a case this court decided involving the same
       claims against Abex and Honeywell, which we later discuss at length. Following the
       presentation of that evidence, the jury (1) returned a verdict in Menssen’s favor and against
       Abex and Honeywell and (2) awarded Menssen $3.5 million in compensatory damages, as
       well as punitive damages of $4.37 million against Abex and $10 million against Honeywell.
¶8         In April 2010, Abex and Honeywell filed separate posttrial motions for judgment n.o.v.,
       which the trial court later denied.
¶9         This appeal followed.

¶ 10                                  II. ANALYSIS
¶ 11                            A. Civil Conspiracy Defined
¶ 12      A civil conspiracy is a “combination of two or more persons for the purpose of
       accomplishing by concerted action either an unlawful purpose or a lawful purpose by


                                                -3-
       unlawful means.” (Internal quotation marks omitted.) McClure v. Owens Corning Fiberglas
       Corp., 188 Ill. 2d 102, 133, 720 N.E.2d 242, 258 (1999). For recovery under a civil
       conspiracy claim, the plaintiff must prove an agreement and a tortious act committed in
       furtherance of the agreement. Id. The agreement must be knowingly and intentionally made.
       McClure, 188 Ill. 2d at 133-34, 720 N.E.2d at 258. A “defendant who innocently performs
       an act which happens to fortuitously further the tortious purpose of another is not liable under
       the theory of civil conspiracy.” (Internal quotation marks omitted.) McClure, 188 Ill. 2d at
       134, 720 N.E.2d at 258.
¶ 13       Because a civil conspiracy is almost never susceptible to direct proof, the conspiracy is
       usually established through circumstantial evidence and inferences drawn from the evidence.
       Id. Although evidence of parallel conduct by the alleged conspirators may serve as
       circumstantial evidence of a civil conspiracy, parallel-conduct evidence is insufficient, by
       itself, to establish the existence of an agreement to commit the civil conspiracy. McClure,
       188 Ill. 2d at 135, 720 N.E.2d at 259.

¶ 14                                  B. Standard of Review
¶ 15        We review de novo a trial court’s denial of a motion for a judgment n.o.v. McClure, 188
       Ill. 2d at 132, 720 N.E.2d at 257. “[V]erdicts ought to be directed and judgments n.o.v.
       entered only in those cases in which all of the evidence, when viewed in its aspect most
       favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict
       based on that evidence could ever stand.” (Internal quotation marks omitted.) Rodarmel,
       2011 IL App (4th) 100463, ¶ 86, 957 N.E.2d 107.
¶ 16        However, a ruling on a judgment n.o.v. also implicates the clear and convincing
       evidentiary standard. Rodarmel, 2011 IL App (4th) 100463, ¶ 87, 957 N.E.2d 107. “[T]he
       evidence must be clear and convincing if a conspiracy is to be proved solely by
       circumstantial evidence.” Rodarmel, 2011 IL App (4th) 100463, ¶ 88, 957 N.E.2d 107. This
       standard applies to judgments n.o.v. as well as directed verdicts. Rodarmel, 2011 IL App
       (4th) 100463, ¶ 87, 957 N.E.2d 107.

¶ 17               C. The Evidence Presented in Rodarmel and the Jury’s Verdict
¶ 18        Although Abex and Honeywell raise in their appeal numerous alleged deficiencies in the
       trial court proceedings, we address only the claim that the court erred by denying the separate
       motions Abex and Honeywell filed for judgment n.o.v. As previously noted, because we
       view our decision in Rodarmel as dispositive, we first discuss the evidence presented in that
       case.

¶ 19    1. The Parallel Conduct Evidence Presented To Show a Civil Conspiracy Existed
¶ 20       In Rodarmel, 2011 IL App (4th) 100463, ¶ 4, 957 N.E.2d 107, the plaintiffs sued the
       defendants, Abex and Honeywell, alleging that the defendants conspired with other
       corporations to (1) falsely assert that asbestos exposure was safe and (2) withhold
       information about the harmful effects of asbestos. The majority of the evidence the plaintiffs


                                                 -4-
       presented to show this civil conspiracy concerned circumstantial evidence to show parallel
       conduct–that is, the actions each defendant took with regard to its respective asbestos
       operations mirrored, or was in concert with, the actions of other alleged coconspirators.
       Rodarmel, 2011 IL App (4th) 100463, ¶ 8, 957 N.E.2d 107.
¶ 21       The plaintiffs’ theory was that by (1) concealing the dangers of asbestos from their
       employees and (2) fraudulently representing that the air inside their factories was safe, the
       defendants acted in conformity with a conspiratorial agreement they had with other
       corporations that were financially invested in promoting asbestos. Rodarmel, 2011 IL App
       (4th) 100463, ¶ 8, 957 N.E.2d 107. In support of that theory, the plaintiffs presented the
       following circumstantial evidence: (1) in 1968, Johns-Manville, the exclusive supplier of
       asbestos to Bendix (Honeywell’s predecessor), informed Bendix that its asbestos shipments
       would henceforth carry the warning “ ‘inhalation of this material over long periods may be
       harmful’ ” (Rodarmel, 2011 IL App (4th) 100463, ¶ 10, 957 N.E.2d 107); (2) shortly after
       placing warning labels on its asbestos shipments, Johns-Manville sent Bendix a position
       paper that identified asbestosis (a scarring of the lungs), lung cancer, and mesothelioma as
       hazards resulting from asbestos exposure (Rodarmel, 2011 IL App (4th) 100463, ¶ 11, 957
       N.E.2d 107); (3) from 1930 through 1934, Albert L. Humphrey, chairman of the
       Westinghouse Air-Brake Company, was on the board of directors of Bendix and the
       American Brake Shoe and Foundry Company (Abex’s predecessor) (Rodarmel, 2011 IL App
       (4th) 100463, ¶ 13, 957 N.E.2d 107); (4) from 1959 through 1963, John D. Biggers,
       chairman of the Libbey-Owens-Ford Glass Company, was on the board of directors of
       Bendix and Johns-Manville (Rodarmel, 2011 IL App (4th) 100463, ¶ 15, 957 N.E.2d 107);
       and (5) Abex, Bendix, Johns-Manville, and other corporations were members of the Friction
       Materials Standard Institute (FMSI), a trade organization created in 1948 to resolve issues
       regarding automobile brakes (Rodarmel, 2011 IL App (4th) 100463, ¶ 14, 957 N.E.2d 107).

¶ 22                   2. The Additional Evidence Presented Against Abex
¶ 23       In addition to the aforementioned evidence presented against Abex and Honeywell, the
       plaintiffs also introduced evidence that the American Brake Shoe and Foundry
       Company–along with eight other corporations in the asbestos industry–pledged to equally
       underwrite the cost of scientific experiments with asbestos dust. Rodarmel, 2011 IL App
       (4th) 100463, ¶ 24, 957 N.E.2d 107. (Honeywell did not sponsor or participate in this study.)
       The cosponsors agreed that Dr. LeRoy U. Gardner, director of the Saranac Laboratory for the
       Study of Tuberculous, would perform the study, noting that the stated purpose of the asbestos
       dusting experiments was to determine the “cause and effects of asbestosis.” Rodarmel, 2011
       IL App (4th) 100463, ¶ 18, 957 N.E.2d 107. The plaintiffs claimed that Abex subsequently
       conspired with its cosponsors to unlawfully conceal the carcinogenic effects of asbestos from
       the published version of Gardner’s study. Rodarmel, 2011 IL App (4th) 100463, ¶ 118, 957
       N.E.2d 107.

¶ 24            3. The Jury’s Verdict and the Defendants’ Posttrial Motions
¶ 25      The jury awarded the plaintiffs $2 million in compensatory damages against the

                                                -5-
       defendants, as well as punitive damages of $100,000 against Abex and $400,000 against
       Honeywell. Rodarmel, 2011 IL App (4th) 100463, ¶ 4, 957 N.E.2d 107.
¶ 26       Abex and Honeywell later filed motions for judgment n.o.v., which the trial court later
       denied. Rodarmel, 2011 IL App (4th) 100463, ¶ 5, 957 N.E.2d 107.

¶ 27         D. This Court’s Parallel-Conduct Analysis in Rodarmel and Application
                              of That Analysis to the Facts of This Case
¶ 28       In Rodarmel, the sole question this court addressed–the same question before us in this
       case–was whether the trial court erred by denying the posttrial motions Abex and Honeywell
       filed for a judgment n.o.v. Rodarmel, 2011 IL App (4th) 100463, ¶ 5, 957 N.E.2d 107.
       Because the plaintiffs in Rodarmel did not have direct evidence that established a civil
       conspiracy, we noted that the circumstantial evidence the plaintiffs presented had to satisfy
       the clear and convincing standard of review. Rodarmel, 2011 IL App (4th) 100463, ¶ 100,
       957 N.E.2d 107. Applying that standard, this court analyzed the evidence the plaintiff
       presented against Honeywell by parsing it into the following categories: (1) Bendix’s buyer-
       seller relationship with Johns-Manville, (2) Bendix’s position paper and further
       communications with Johns-Manville concerning asbestos, (3) Bendix’s membership in the
       FMSI trade organization, and (4) Bendix’s shared board of directors. Id.
¶ 29       Relying on the supreme court’s decision in McClure, this court rejected Rodarmel’s
       claim that the evidence presented was clear and convincing proof that established
       Honeywell’s participation in a civil conspiracy. Rodarmel, 2011 IL App (4th) 100463,
       ¶¶ 106-17, 957 N.E.2d 107. In particular, we stated the following: (1) the inference of a
       conspiratorial agreement cannot be convincingly established by a buyer-seller relationship
       (Rodarmel, 2011 IL App (4th) 100463, ¶ 106, 957 N.E.2d 107); (2) Bendix’s purchase of
       asbestos from Johns-Manville was inherent in Rodarmel’s parallel-conduct claim that
       Honeywell failed to adequately protect its employees from exposure to asbestos (Rodarmel,
       2011 IL App (4th) 100463, ¶ 107, 957 N.E.2d 107); (3) the sharing of information
       concerning asbestos among corporations in the asbestos industry does not provide clear and
       convincing evidence of a civil conspiracy (Rodarmel, 2011 IL App (4th) 100463, ¶ 109, 957
       N.E.2d 107); (4) “a conspiratorial agreement could not be inferred from membership in a
       trade organization” (Rodarmel, 2011 IL App (4th) 100463, ¶ 113, 957 N.E.2d 107), and (5)
       inferring a civil conspiracy from a shared board director would be speculation, and liability
       based on such a dubious foundation “ ‘is contrary to tort principles in Illinois’ ” (Rodarmel,
       2011 IL App (4th) 100463, ¶ 117, 957 N.E.2d 107 (quoting McClure, 188 Ill. 2d at 152, 720
       N.E.2d at 267)).
¶ 30       In so concluding, this court declined to follow our decision in Dukes v. Pneumo Abex
       Corp., 386 Ill. App. 3d 425, 900 N.E.2d 1128 (2008). Rodarmel, 2011 IL App (4th) 100463,
       ¶ 118, 957 N.E.2d 107. In Dukes, 386 Ill. App. 3d at 440, 900 N.E.2d at 1140, a different
       panel of this district acknowledged the supreme court’s holding in McClure that more than
       parallel conduct was needed to prove a conspiracy. The Dukes court then proceeded to
       discuss the same four categories of evidence that the plaintiff presented over and above
       parallel conduct, holding that this additional evidence satisfied McClure. Dukes, 386 Ill. App.

                                                -6-
       3d at 445-46, 900 N.E.2d at 1144.
¶ 31        In rejecting the analysis in Dukes, we stated, as follows:
            [W]e conclude that Dukes was incorrect in holding that the four items of additional
            evidence, over and above parallel conduct, justified the denial of Honeywell’s motion for
            a judgment [n.o.v.] in that case. In that respect, we decline to follow Dukes. And because
            plaintiffs point to no additional evidence other than that which we have discussed in
            connection with Dukes, we hold that Honeywell likewise was entitled a judgment [n.o.v.]
            in the present case.” Rodarmel, 2011 IL App (4th) 100463, ¶ 118, 957 N.E.2d 107.
¶ 32        Although the majority of the evidence presented in this case was identical to the evidence
       presented in Rodarmel, Menssen posits that “[t]he record in this appeal is not the same as the
       record the appellate court was presented with in Rodarmel.” We agree and note that Menssen
       offered the following additional evidence against Honeywell, which was not considered in
       Rodarmel: (1) in 1958, the State of New York Department of Labor promulgated “Rule No.
       12” entitled, “Control of Air Contaminants in Factories,” which listed asbestos dust in
       quantities greater than five million particles per cubic foot as a “dangerous air contaminant”
       (Bendix owned a factory located in Troy, New York, at that time.); (2) a 1959 advertisement,
       in which Bendix challenged the “jobber, rebuilder or dealer,” to “do [its] part to protect the
       public by stocking only ‘name brand’ brake lining[s]–such as that made by Bendix or one of
       the other reputable manufacturers” (emphasis in original); (3) documents that showed the
       composition of dust at certain Bendix facilities prior to plaintiff’s exposure; (4) a 1968 article
       published in Bendix Today, which contained (a) information on the quantity of brake linings
       produced at Bendix and (b) photographs documenting the conditions at the Bendix facilities;
       (5) in 1969, Bendix manufactured and sold “asbestos compound;” (6) a March 1972 Bendix
       internal memorandum entitled, “Third Visit by OSHA [(Occupational Health and Safety
       Administration)] to [Friction Materials Division]–Tennessee,” which revealed that Bendix
       anticipated a citation for exceeding the “[five-]fibers-per-milliliter” maximum asbestos air
       quality standard imposed by OSHA; (7) sometime after 1972, Bendix distributed a booklet
       authored by Johns-Manville entitled, “What Every Employee Should Know
       about...ASBESTOS” that informed its employees about the dangers of asbestos; (8) a 1975
       report found in Bendix’s files, noting that no conclusive proof existed regarding a safe
       asbestos exposure level; (9) a 1983 Bendix internal memorandum, which identified questions
       and concerns from its employees regarding why they were not informed about or protected
       against the dangers of asbestos exposure; and (10) documents dated after implementation of
       OSHA that showed Bendix’s policies and procedure to implement the new standards.
¶ 33        In addition to the evidence Menssen presented, this case involves exposure dates from
       1967 to 1969, more than 10 years after the plaintiffs in Rodarmel were exposed. Despite
       Menssen’s urging, however, we do not find the additional evidence or the expanded time
       frame clearly and convincingly shows a conspiratorial agreement among corporations in the
       asbestos industry. Simply put, 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.


                                                  -7-
¶ 34       Because we (1) agree with Rodarmel’s characterization of the evidence presented in that
       case, which includes our rejection of Dukes, and (2) find that the additional evidence offered
       by plaintiff was insufficient to prove Honeywell entered into a conspiratorial agreement with
       other corporations to suppress or misrepresent the dangers of asbestos, we conclude that
       Honeywell was entitled to a judgment n.o.v.

¶ 35        E. The Additional Evidence Menssen Presented Against Abex Regarding
                          the Saranac Laboratory Dusting Experiments
¶ 36       As previously explained, in addition to the evidence of the sharing of a director–evidence
       that we have earlier considered and rejected with regard to Honeywell–Menssen also
       presented evidence that Abex conspired with its cosponsors to unlawfully conceal
       information about the carcinogenic effects of asbestos from the published version of
       Gardner’s study. In particular, Menssen presented the following pertinent evidence.

¶ 37                   1. The Evolution of the Dusting Experiments Conducted
                                     by the Saranac Laboratory
¶ 38       On November 19, 1936, a meeting of brake lining manufacturers was held in New York
       City. At that meeting, nine corporations in the asbestos industry voluntarily pledged to
       equally fund the cost of scientific experiments, which would study the effects of asbestos
       dust exposure. The following day, the sponsors of the study, which included UNARCO,
       Abex, and Johns-Manville, entered into a written agreement to that effect. (Honeywell
       neither sponsored nor participated in the study.) The written agreement identified Gardner
       as the scientist in charge of the experiments.
¶ 39        That same day, Vandiver Brown, general counsel for Johns-Manville, sent Gardner a
       letter on behalf of the cosponsors, authorizing him to “commence the contemplated
       experiments with asbestos dust for the purposes of determining more definitely the causes
       and effects of asbestosis.” In his letter, Brown conveyed the following limitation upon the
       results of the study:
                “It is our further understanding that the results obtained will be considered the
            property of [the corporate cosponsors], who will determine whether, to what extent, and
            in what manner they shall be made public. In the event it is deemed desirable that the
            results be made public, the manuscript of your study will be returned to us for approval
            prior to publication.”
       On November 23, 1936, Gardner agreed to conduct the study subject to the sponsors’
       conditions. Brown later informed the other sponsors of Gardner’s approval.
¶ 40        In the years that followed, Gardner provided the sponsors annual reports, outlining the
       progress of the scientific experiments. In February 1943, Gardner sent a letter to Brown,
       informing him that he had “at last succeeded in analyzing most of [the] voluminous
       experimental data and assessing the results.” Attached to Gardner’s letter was a report
       entitled, “Outline of Proposed Monograph on Asbestos,” which explained that although “[n]o
       experiments were particularly designed to elucidate this point, *** certain evidence suggests

                                                -8-
       that asbestos may actually favor development of tumors in susceptible species.” Gardner
       noted that 8 out of 11 mice that inhaled long fiber asbestos for 15 to 24 months developed
       malignant tumors. Gardner cautioned, however, as follows:
           “These observations are suggestive but not conclusive evidence of a cancer stimulating
           action by asbestos dust. They are open to several criticisms. The strain of mice was not
           the same in the asbestos experiment as in many of the others cited; apparently the former
           were unusually susceptible. Not enough animals survived in the dust for longer than the
           15 months apparently necessary to produce many tumors. There were no unexposed
           controls of the same strain and age and no similar controls exposed to other dusts. It is
           hoped that this experiment can be repeated under properly controlled conditions to
           determine whether asbestos actually favors cancer of the lung.”
       Although Gardner conveyed that “[t]he question of cancer susceptibility now seems more
       significant than I had previously imagined,” he recommended that any references to the
       incidences of cancerous tumors should be omitted from the final version of the study.
       Gardner then conveyed his intent to later provide a formal comprehensive report on the
       experiments.
¶ 41       In March 1943, Gardner applied for a federal research grant from the National Cancer
       Institute to conduct a properly controlled experiment on asbestos dust and lung cancer. In his
       application, Gardner described the results of his previous study but admitted that the “results
       with asbestos mean[t] nothing” because the experiments (1) were not intended to study the
       carcinogenic effects of asbestos and (2) lacked the proper controls.
¶ 42       In January 1944, the Committee on Cooperation in Cancer Research, which evaluated
       Gardner’s $10,000 grant request, consulted with Dr. James J. Murphy, a committee member
       who–at that time–had the most experience in pulmonary cancer research. Murphy opined as
       follows:
               “This is the first time I have seen this application. I think it is bringing a very big gun
           to bear on a subject that probably will be settled in a very short time with a very slight
           expenditure of money. I think it is quite likely that you can induce cancer of the lung in
           mice in the strains that have genetic tendency for cancer of the lung. It is very easy to do.
           I believe the question can be settled in one comprehensive experiment, with a modest
           outlay of cost. It is a problem you can do here, for instance, at a cost of perhaps $20 to
           $30. I think we are hardly justified in appropriating $10,000 for it in a laboratory that
           isn’t experienced in cancer research or in handling this particular type of material.”
       Thereafter, the committee denied Gardner’s application, noting that the lack of genetic and
       proper clinical controls cast doubt on Gardner’s belief that prolonged asbestos exposure
       causes cancer.
¶ 43       In 1946, Gardner died before completing the final report on the asbestos dust study. In
       September 1948, Saranac Laboratories prepared the final report of Gardner’s scientific
       findings, which it delivered to Brown at Johns-Manville. The report mentioned the tumorous
       mice but noted a contradiction in Gardner’s experimental notes where he referred to the
       tumors as “adenomas,” benign, or nonmalignant tumors. (Adenomas are defined as a benign
       tumor of glandlike structure.)

                                                  -9-
¶ 44        In October 1948, Brown forwarded the final report from the Saranac Laboratory to the
       rest of the sponsoring companies. Brown requested that the report be treated with “the
       upmost confidence” and that it not be made available to anyone outside the sponsoring
       companies. Brown suspected that Saranac Laboratory desired to publish the study results,
       which Brown noted was “desirable from the point of view of the industry,” provided “some
       of the speculative comments [were] omitted.” Brown invited the sponsoring companies to
       a luncheon in Johns-Manville’s boardroom to discuss whether the report should be revised
       before publication. Brown suggested that if a sponsoring corporation could not attend the
       luncheon, it designate a representative from another sponsoring corporation to act on its
       behalf.
¶ 45        On November 3, 1948, Dr. L.E. Hamlin, the former medical director for the American
       Brake Shoe and Foundry Company (now known as Abex), wrote a letter on the contents of
       the final report and the question of whether to make revisions before publication. In his letter,
       Hamlin, inferring Brown’s concerns about the legal ramifications of the final unrevised
       version of the asbestos study, “confessed” that he did not observe “anything in the report in
       its present form which need cause undue concern.” Brown explained as follows:
                “I feel that since most of the basic facts with the exception of the more detailed
            studies mentioned in the report are already known and have been published in other
            studies on asbestos, no unfavorable reaction need be anticipated. I think the idea of
            reviewing the manuscript prior to publication is a good one in order to achieve mutual
            understanding with Saranac, but I feel that this can be accomplished quite satisfactorily
            without my presence.”
       Because Hamlin was unable to attend the luncheon, he requested Brown represent American
       Brake Shoe Company “in connection with the decisions to be made.” Five days later, W.T.
       Kelly, Jr., executive vice president of American Brakebloc Division (a division of American
       Brake Shoe and Foundry Company) forwarded Hamlin’s recommendations to Brown with
       a letter requesting Brown act as its representative at the luncheon.
¶ 46        On November 12, 1948, Brown informed Kelly by letter that the sponsoring companies
       unanimously voted to delete references to cancer and tumors from the final published report
       of the Saranac asbestos study because (1) the experiments were not devised to determine the
       incidence of cancer as a result of asbestos dust exposure, (2) Gardner previously indicated
       that the asbestos experiments should be correctly performed in a separate study, (3) Gardner
       recommended that the question of cancer susceptibility should be deleted from the study, and
       (4) the study unintentionally used a strain of mice susceptible to developing tumors. Brown
       also requested that Kelly return the copy of the unrevised final study he possessed because
       the sponsoring corporations agreed it would be “unwise to have any copies of the draft report
       outstanding if the final report is to be different in any substantial respect.” Dr. Phillip C.
       Pratt, a pathologist retained by Abex who assisted in the preparation of the final report,
       agreed that it would have been inappropriate to include the study in the final report because
       of the lack of a control group.
¶ 47        In January 1951, Saranac Laboratory published its reports of Gardner’s asbestos dust
       experiments in the American Medical Association Archives of Industrial Hygiene and


                                                 -10-
       Occupational Medicine. The published version deleted (1) all references to tumors and
       malignancies in mice, and (2) the section that identified the contradiction between Gardner’s
       outline and his experimental notes.

¶ 48                               2. The Application of Rodarmel
¶ 49       We note that the plaintiffs in Rodarmel also presented evidence to support their
       claim–the same claim Menssen makes in this case–that Abex conspired with its cosponsors
       to unlawfully conceal the carcinogenic effects of asbestos from the published version of
       Gardner’s study. We note further that a comparison of the evidence presented in Rodarmel
       regarding those experiments does not deviate in any meaningful respect from the evidence
       presented in this case on the same issue.
¶ 50       In rejecting the argument that the asbestos study showed Abex entered into a
       conspiratorial agreement, this court stated the following:
               “In *** suppressing the cancer references, the sponsors could have done the right
           thing for the wrong reason. Even if the tumors in the mice scientifically proved nothing,
           publicizing them could have been prejudicial to Johns-Manville’s business, or Johns-
           Manville could have had that fear. So, yes, it is an eminently reasonable inference that
           Johns-Manville, Abex, and other companies were concerned more about their own skin
           than about scientific integrity. The question, though, is not whether Abex’s motives were
           pure. Instead, the question is whether Abex agreed ‘to commit an unlawful act or a lawful
           act in an unlawful manner.’ [Citation.] As far as we can see, it was not against the law,
           and it was not tortious, for the financing corporations to conceal the occurrence of tumors
           in a small group of mice if (1) the tumors were not scientific evidence of a relationship
           between asbestos and cancer and (2) it was unclear that any of the tumors were in fact
           cancerous. Granted, from the vantage of hindsight, we now know it is a scientific fact
           that asbestos causes cancer in humans. But it does not necessarily follow that asbestos
           caused the tumors (benign or malignant) in the eight or nine mice at Saranac Laboratory,
           some of which were genetically prone to develop tumors under any conditions. Unless
           Abex had notice that the tumorous mice were scientific evidence that asbestos caused
           cancer, Abex did not enter into a conspiratorial agreement by agreeing to conceal
           information about the tumorous mice–because concealing the information was not an
           unlawful or tortious act. It cannot be unlawful to hide information that is devoid of
           significance: information that, as Murphy put it, was ‘not of any tremendous value.’ ”
           Rodarmel, 2011 IL App (4th) 100463, ¶ 124, 957 N.E.2d 107.
¶ 51       We adhere to our analysis in Rodarmel and conclude that, without more, Menssen failed
       to provide evidence that Abex agreed with other companies to suppress or misrepresent the
       health hazards of asbestos.
¶ 52       Accordingly, as we determined with regard to Honeywell, we conclude that Abex was
       entitled to a judgment n.o.v. because the additional evidence offered by plaintiff was
       insufficient to prove Abex entered into a conspiratorial agreement with other corporations
       to suppress or misrepresent the dangers of asbestos.


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¶ 53                                   III. CONCLUSION
¶ 54       For the reasons stated, we reverse the trial court’s judgment.

¶ 55       Reversed.

¶ 56       PRESIDING JUSTICE TURNER, specially concurring.
¶ 57       While I concur in this opinion, I write separately to note I specially concurred in
       Rodarmel because I found unnecessary the majority’s analysis on whether the evidence was
       sufficient to find Honeywell and Abex guilty of the tort of civil conspiracy. Nonetheless, a
       majority of the Fourth District Appellate Court justices has adopted Rodarmel’s sufficiency-
       of-the-evidence analysis as Fourth District precedent. Thus, under the doctrine of stare
       decisis, I concur in reversing the trial court’s judgment denying defendants’ motions for
       judgment n.o.v.

¶ 58       JUSTICE COOK, dissenting.
¶ 59       It is surprising that this court would conclude that the suppression of the results of the
       Saranac Laboratory research was no big deal. “Abex’s agreement to conceal information
       about the tumorous mice was not an agreement to perform an unlawful act and hence was
       not a conspiratorial agreement. It cannot be unlawful to suppress information that apparently
       is devoid of any significance.” Rodarmel, 2011 IL App (4th) 100463, ¶ 128, 957 N.E.2d 107.
       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. There was direct evidence that UNARCO and Johns-Manville prevented
       information about the health hazards of asbestos from being published. McClure, 188 Ill. 2d
       at 143, 720 N.E.2d at 263. “[T]hese companies required Saranac Laboratory to omit
       references to cancer and tumors from the 1951 article it published concerning the results of
       asbestos research sponsored by Unarco, Johns-Manville, and other asbestos product
       manufacturers.” McClure, 188 Ill. 2d at 143, 720 N.E.2d at 263. Abex was one of those
       “other asbestos product manufacturers.”
¶ 60       The plaintiff in Rodarmel was a wife who contracted mesothelioma from breathing
       asbestos fibers that her husband carried home on his person and clothing. There is a split in
       the appellate court on whether defendants owe a plaintiff a duty in household or “take-home”
       asbestos exposure cases. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 34 n.3,
       965 N.E.2d 1092 (Freeman, J., dissenting, joined by Burke, J.). Simpkins remanded to give
       plaintiff the opportunity to plead sufficient facts to establish a duty of care. The present case
       is not a household or “take-home” asbestos case. Plaintiff here was employed by UNARCO
       from 1967 to 1969, and later contracted mesothelioma.
¶ 61       To state a claim for civil conspiracy, a plaintiff must allege an agreement and a tortious
       act committed in furtherance of that agreement. Parallel conduct, such as failing to warn and
       protect employees and consumers despite knowing that asbestos-containing products could
       cause disease, “may serve as circumstantial evidence of a civil conspiracy among


                                                 -12-
       manufacturers of the same or similar products but is insufficient proof, by itself, of the
       agreement element of this tort.” McClure, 188 Ill. 2d at 135, 720 N.E.2d at 259. Accidental,
       inadvertent, or negligent participation in a common scheme does not amount to conspiracy.
       Mere knowledge of the fraudulent or illegal actions of another is also not enough to show a
       conspiracy. “However, ‘[a] defendant who understands the general objectives of the
       conspiratorial scheme, accepts them, and agrees, either explicitly or implicitly[,] to do its part
       to further those objectives *** is liable as a conspirator.’ ” McClure, 188 Ill. 2d at 134, 720
       N.E.2d at 258 (quoting Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 64, 645 N.E.2d 888, 894
       (1994)). It is not necessary that defendant admit the conspiracy; evidence of an implicit
       agreement is enough. McClure quoted another case, suggesting what evidence would be
       sufficient: “ ‘The complaint contains no averments of meetings, conferences, telephone calls,
       joint filings, cooperation, consolidation, or joint licensing. The plaintiffs have alleged no
       more than a contemporaneous and negligent failure to act.’ ” McClure, 188 Ill. 2d at 138, 720
       N.E.2d at 260 (quoting Burnside v. Abbott Laboratories, 505 A.2d 973, 982 (Pa. Super. Ct.
       1985)).
¶ 62        We have meetings, conferences, telephone calls, and cooperation in this case. Abex
       (American Brake Shoe Company) signed the Saranac Agreement. (Owens Corning, the
       defendant in McClure, was not a signatory to the Saranac Agreement.) Abex received a copy
       of the 1948 Saranac report from Vandiver Brown, Johns-Manville’s general counsel. Brown
       requested the nine financing companies meet in the Johns-Manville boardroom November
       11, 1948, “or designate some representative of another company to act for you in connection
       with decisions that will have to be made.” Abex’s medical director, Dr. Lloyd E. Hamlin,
       requested that Brown act for Abex. “I am sure our interest in the matter could be adequately
       protected by Mr. Brown.” After the meeting, Brown asked that Abex return its copy of the
       Saranac report. “Everyone felt it would be most unwise to have any copies of the draft report
       outstanding if the final report is to be different in any substantial respect.” Dr. Hamlin
       wanted to keep the report, promising to keep it confidential, but Brown asked W.T. Kelly,
       Jr., executive vice-president of Abex, to “prevail upon him to return it.” Kelly agreed to do
       so. “There clearly was evidence here, other than evidence of parallel conduct, which was
       sufficient to establish the existence of an agreement between Abex and Johns-Manville to
       suppress or misrepresent information regarding the health hazards of asbestos.” Burgess v.
       Abex Corp., 311 Ill. App. 3d 900, 903, 725 N.E.2d 792, 795 (2000). Of course the defendants
       attached excuses to their decisions to suppress, in an attempt to justify those decisions. We
       should not give undue weight to those excuses.
¶ 63        Honeywell (Bendix) was not a signatory to the Saranac Laboratory agreement. However,
       from 1930 to 1934, one of its directors, Albert L. Humphrey, was also on the board of Abex.
       From 1959 to 1963, another of its directors, John D. Biggers, was also on the board of Johns-
       Manville. Bendix, Abex, and Johns-Manville were members of the Friction Materials
       Standard Institute, which in 1971 established the Asbestos Information Association to ensure
       “asbestos users [are] current on proposed regulations.” “[M]embership in industrywide trade
       organizations and participation in scientific conferences are common in most industries and
       do not support an inference of agreement.” McClure, 188 Ill. 2d at 147, 720 N.E.2d at 265
       (citing Payton v. Abbott Labs, 512 F. Supp. 1031, 1038 (D. Mass. 1981)). The organizations

                                                 -13-
       here were not simply industrywide trade organizations; they were narrowly structured to deal
       with a specific problem. Rodarmel says that sharing a director with an alleged coconspirator
       is no different than membership in an industrywide trade organization. Rodarmel, 2011 IL
       App (4th) 100463, ¶ 117, 957 N.E.2d 107. I disagree. A shared director allows continuous,
       one-on-one contact between the two companies, giving them specific advance knowledge of
       concerns and allowing them to participate in decisions. Rodarmel says the record “contain[s]
       no evidence of the extent to which the shared director actually controlled the decision
       making.” Rodarmel, 2011 IL App (4th) 100463, ¶ 117, 957 N.E.2d 107. Again, it is not
       necessary that defendant actually admit the conspiracy; implicit evidence is sufficient. There
       were certainly “meetings, conferences, telephone calls *** [and] cooperation” between
       Honeywell, Abex, and Johns-Manville. Their conduct was not simply “contemporaneous.”
       McClure stated that meetings after the Califano announcement did not allow a reasonable
       inference of agreement, but the Califano announcement was in April 1978, and plaintiff’s
       exposure to asbestos here occurred from 1967 to 1969.
¶ 64       “ ‘Judgment notwithstanding the verdict should not be entered unless the evidence, when
       viewed in the light most favorable to the opponent, so overwhelmingly favors the movant
       that no contrary verdict based on that evidence could ever stand.’ ” McClure, 188 Ill. 2d at
       132, 720 N.E.2d at 257 (quoting Holton v. Memorial Hospital, 176 Ill. 2d 95, 109, 679
       N.E.2d 1202, 1208 (1997)). There was persuasive evidence, both explicit and implicit, of an
       agreement here. A circuit court may order a new trial if, after weighing the evidence, the
       court determines that the verdict is contrary to the manifest weight of the evidence–where
       the opposite conclusion is clearly evident or where the findings of the jury are unreasonable,
       arbitrary, and not based on any of the evidence. McClure, 188 Ill. 2d at 132, 720 N.E.2d at
       257. The circuit court did not abuse its discretion when it denied the motion for a new trial
       in this case.




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