                                      2018 IL App (5th) 160239
            NOTICE
 Decision filed 08/10/18. The
 text of this decision may be              NO. 5-16-0239
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of
                                             IN THE
 the same.
                                   APPELLATE COURT OF ILLINOIS

                                FIFTH DISTRICT
______________________________________________________________________________

JOHN JONES and DEBORAH JONES,                   )     Appeal from the
                                                )     Circuit Court of
      Plaintiffs-Appellants,                    )     Richland County.
                                                )
v.                                              )     No. 13-L-21
                                                )
PNEUMO ABEX LLC and OWENS-ILLINOIS, INC.,       )     Honorable
                                                )     William C. Hudson,
      Defendants-Appellees.                     )     Judge, presiding.
______________________________________________________________________________

         JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
         Presiding Justice Barberis and Justice Welch concurred in the judgment and opinion.

                                           OPINION

¶1       Plaintiffs, John and Deborah Jones, brought an action against defendants, Pneumo Abex

LLC (Abex) and Owens-Illinois, Inc. (Owens-Illinois), among others, to recover for harm that

John allegedly suffered as a result of asbestos exposure that occurred while John was employed

in construction. Plaintiffs’ complaint alleged Abex was responsible for John’s injuries because it

entered into a civil conspiracy with Johns-Manville and other manufacturers of asbestos-

containing products to suppress information about the harmful health effects of asbestos and to

falsely assert asbestos exposure was safe. The complaint further alleged that Owens-Illinois

entered into the same conspiracy with Owens-Corning Fiberglas Corporation (Owens-Corning),

a nonparty in this case. The trial court entered summary judgment in favor of defendants on the

civil conspiracy claims. On appeal, plaintiffs argue that the trial court erred in granting summary

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judgment because genuine issues of material fact exist as to (1) whether defendants entered into

a conspiratorial agreement to suppress or misrepresent information about the health hazards of

asbestos and (2) whether defendants committed acts in furtherance of such an agreement. For the

following reasons, we reverse and remand this cause for further proceedings consistent with this

opinion.

¶2                                    BACKGROUND

¶3     The two defendants in this appeal are (1) Abex, a manufacturer of asbestos-containing

brake linings, and (2) Owens-Illinois, a manufacturer and distributor of Kaylo, an asbestos-

containing insulation, between 1948 and 1958. Plaintiffs’ complaint against defendants is based

on civil conspiracy. Neither defendant employed John, and plaintiffs’ conspiracy claim against

Abex does not allege any asbestos exposure directly attributable to Abex. According to

plaintiffs’ complaint, John contracted lung cancer from his exposure to asbestos-containing

insulation during his career in construction, which began in 1969. The complaint asserted John

worked with Johns-Manville and Owens-Corning insulation during his construction career.

¶4     As to plaintiffs’ claim of conspiracy, the complaint alleged that Abex conspired with

other manufacturers of asbestos-containing products to falsely assert it was safe for people to

work in close proximity to asbestos and to suppress information about the harmful health effects

of asbestos exposure. Plaintiffs claim Abex committed numerous tortious acts in furtherance of

the conspiracy. Specifically, plaintiffs argue that although Abex was aware of the health hazards

of asbestos exposure, it continued making and distributing asbestos-containing products without

adequately protecting employees and customers, and it also manipulated the scientific and legal

landscape to shield the asbestos industry from liability and ensure continued profitability. The

complaint alleged John was injured as a result of this conspiratorial conduct.


                                                 2

¶5     The complaint identified the following overt acts that were allegedly committed by the

companies in furtherance of the conspiracy: (1) selling asbestos products, which were used at

John’s work, without warning customers of the health hazards of asbestos exposure; (2) failing to

warn employees about the health hazards of asbestos exposure; (3) editing and altering reports

and drafts of publications initially prepared by Dr. Anthony Lanza, a physician employed by

another alleged conspirator, Metropolitan Life Insurance, during the 1930s, which concerned the

health hazards of asbestos exposure; (4) entering into a written agreement to suppress the results

of research on the health effects of asbestos exposure; (5) obtaining an agreement in the 1930s

from the editors of ASBESTOS Magazine, the only trade magazine devoted exclusively to

asbestos, that the magazine would not publish articles connecting asbestos exposure to disease

and sustaining such agreement into the 1970s; (6) suppressing the dissemination of a 1943 report

prepared by Dr. LeRoy Gardner, a former director of the Saranac Laboratory for the Study of

Tuberculosis (Saranac Laboratory), in which he was critical of the idea that there was a safe level

of asbestos exposure; (7) defeating further study of the health of workers through their control of

the Asbestos Textile Institute; (8) editing and altering reports and publication drafts initially

prepared by Dr. Arthur Vorwald, a former director at Saranac Laboratory, from 1948 through

1951; (9) suppressing the results of the fibrous dust studies conducted between 1966 and 1974

that concluded asbestos exposure caused lung cancer and mesothelioma; (10) participating in

drafting a pamphlet published by the National Insulation Manufacturers Association (NIMA)

which purportedly failed to disclose the specific health hazards of asbestos exposure;

(11) purchasing asbestos without warning labels from co-conspirators; (12) refusing to warn

employees who used asbestos-containing materials in the manufacture of the companies’

products; and (13) altering the original report of a study performed by the Industrial Hygiene


                                                3

Foundation to delete all references to the association of asbestosis (scarring of the lungs) and

lung cancer. The complaint further alleged that Owens-Illinois engaged in the same conspiracy

with Owens-Corning.

¶6     In June 2015, Abex filed a motion for summary judgment, asking the trial court to follow

Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463, Menssen v. Pneumo Abex Corp.,

2012 IL App (4th) 100904, and Gillenwater v. Honeywell International, Inc., 2013 IL App (4th)

120929, all Fourth District cases that found there was insufficient evidence to show Abex had

agreed with other companies to suppress or misrepresent the health hazards of asbestos. In

August 2015, Owens-Illinois filed a separate motion for summary judgment, also arguing, in

pertinent parts, that there was insufficient evidence to support a finding of conspiracy. Relying

on these Fourth District civil conspiracy cases, the trial court granted summary judgment in favor

of defendants.

¶7     This appeal followed.

¶8                                        ANALYSIS

¶9     “Civil conspiracy is defined as ‘a combination of two or more persons for the purpose of

accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful

means.’ ” McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 133 (1999) (quoting

Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23 (1998)). To state a claim for civil

conspiracy, a plaintiff must allege the existence of an agreement and a tortious act committed in

furtherance of that agreement. Id.

¶ 10   “Civil conspiracy is an intentional tort and requires proof that a defendant ‘knowingly

and voluntarily participates in a common scheme to commit an unlawful act or a lawful act in an

unlawful manner.’ ” Id. (quoting Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 64 (1994)).

                                                4

Accidental, inadvertent, or negligent participation in a common scheme does not result in

conspiracy. Id. at 133-34. Moreover, mere knowledge of the fraudulent or illegal actions of

another does not amount to conspiracy. Id. at 134.

¶ 11   Because a conspiracy is almost never susceptible to direct proof, it is usually established

by circumstantial evidence and inferences drawn from the evidence, coupled with common sense

knowledge of the behavior of persons in similar circumstances. Id. However, if a civil conspiracy

is shown by circumstantial evidence, that evidence must be clear and convincing. Id. Our

supreme court has determined that “parallel conduct may serve as circumstantial evidence of a

civil conspiracy among manufacturers of the same or similar products but is insufficient proof,

by itself, of the agreement element of this tort.” Id. at 135. Evidence of parallel conduct alone is

insufficient to establish a civil conspiracy by clear and convincing evidence. Id. at 146.

¶ 12   This appeal is before us on the trial court’s grant of summary judgment in favor of

defendants. Summary judgment is appropriate only where the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law. General

Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002). A triable issue precluding

summary judgment exists where the material facts are disputed or where the material facts are

undisputed but reasonable persons might draw different inferences from those facts. Morris v.

Union Pacific R.R. Co., 2015 IL App (5th) 140622, ¶ 23.

¶ 13   In determining whether a genuine issue of material fact exists, the court should construe

the pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and

liberally in favor of the nonmoving party, drawing all reasonable inferences in favor of the

nonmovant. Id.; Shuttlesworth v. City of Chicago, 377 Ill. App. 3d 360, 366 (2007). Summary

                                                 5

judgment is a drastic remedy and should only be allowed when a moving party’s right is clear

and free from doubt. Morris, 2015 IL App (5th) 140622, ¶ 22. “The purpose of summary

judgment is not to try a question of fact, but to determine if one exists.” Robidoux v. Oliphant,

201 Ill. 2d 324, 335 (2002). We review a summary judgment ruling de novo. Morris, 2015 IL

App (5th) 140622, ¶ 23.

¶ 14   After careful review, we find the record is replete with genuine issues of material fact

from which a trier of fact could reasonably conclude the existence and acts in furtherance of a

civil conspiracy. Consequently, the trial court erred in granting summary judgment in favor of

defendants and against plaintiffs.

¶ 15   As to Abex, for example, plaintiffs presented evidence that Abex allegedly entered into

an agreement with Johns-Manville to suppress or misrepresent information regarding the health

hazards of asbestos. Specifically, plaintiffs introduced evidence that Abex signed a 1936

agreement to underwrite experiments with asbestos dust to be performed by Dr. Gardner. Further

evidence shows that after Abex received a copy of the 1948 report of Dr. Gardner’s dusting

experiments, which was published two years after Dr. Gardner’s death, Abex returned the report

at the request of Johns-Manville’s general counsel, Vandiver Brown, who wanted all references

to cancers and tumors deleted from the report. Brown felt it would be unwise to have any copies

of the draft report outstanding if the final report was to be different in any substantial respect.

Plaintiffs also produced evidence that shows Abex asked Brown to act on its behalf at a

conference in which the sponsoring companies of Dr. Gardner’s experiments agreed to delete

any reference to cancer and tumors from the final published report.

¶ 16   Similarly, plaintiffs presented evidence that Owens-Illinois allegedly entered into an

agreement with Owens-Corning to suppress information about the hazards of asbestos. Owens­

                                                6

Corning was formed by Owens-Illinois and Corning Glass in 1938. Plaintiffs presented evidence

that Owens-Illinois began manufacturing and selling a thermal insulation product named Kaylo

in 1943, and Owens-Illinois continued to sell Kaylo after it received warning that it was

potentially a respiratory hazard. One such warning was from Dr. Vorwald, who wrote to Owens-

Illinois in 1952 that studies showed “Kaylo dust is capable of producing a peribronchiolar

fibrosis typical of asbestosis.”

¶ 17     Plaintiffs’ evidence indicates Owens-Illinois and Owens-Corning entered into a

distributorship agreement in 1953. Under the agreement, Owens-Illinois continued to

manufacture Kaylo and Owens-Corning distributed it. This agreement lasted until 1958 when

Owens-Illinois sold its Kaylo division to Owens-Corning. Plaintiffs presented evidence that

during this agreement, the two companies did not place any warning on Kaylo packaging.

Rather, plaintiffs’ evidence shows the companies advertised Kaylo as “non-toxic” despite

knowing the advertisement was false. Plaintiffs’ evidence further indicates the two companies

remained close after Owens-Illinois sold its Kaylo division to Owens-Corning in 1958. Owens-

Illinois continued to provide warning-free packaging for Kaylo until the late 1960s, and Owens-

Illinois maintained a major investment in Owens-Corning into the 1970s. Plaintiffs produced

evidence that Owens-Illinois owned over 750,000 shares of Owens-Corning stock as late as

1978. Plaintiffs’ evidence also indicates that the profits and earnings of Owens-Corning were a

recurrent topic of conversation at Owens-Illinois directors meetings from the 1940s through the

1970s.

¶ 18     The foregoing examples are only a few of the numerous genuine issues of material fact in

the record from which a trier of fact could find the elements of civil conspiracy by clear and

convincing evidence. When construing the record liberally in favor of plaintiffs, it is possible for


                                                 7

a fair-minded trier of fact to find in favor of plaintiffs. We acknowledge that defendants dispute

plaintiffs’ evidence. At the very least, however, reasonable persons could draw different

inferences from the facts of record. At this stage in the litigation, it was error for the trial court to

weigh the evidence and grant summary judgment.

¶ 19    The trial court in this case relied on two dispositions rendered by our colleagues in the

Fourth District in arriving at its decision to grant summary judgment in favor of defendants. The

court cited Rodarmel, 2011 IL App (4th) 100463, in support of its decision to grant summary

judgment in favor of Abex, concluding “this matter is indistinguishable from Rodarmel on the

material issues.” The court also cited Gillenwater, 2013 IL App (4th) 120929, in support of its

decision to grant summary judgment in favor of Owens-Illinois, concluding “this matter is

indistinguishable from Gillenwater on the material issues.” There is a fatal flaw in the court’s

reliance on these two authorities: the action of the trial court at issue in both cases was judgment

notwithstanding the verdict (n.o.v.), not summary judgment.

¶ 20    In Rodarmel, the Fourth District considered whether the agreement between Abex and

other asbestos-manufacturing companies to suppress the cancer references in the Saranac

publication was a conspiratorial agreement. The court found no evidence that Abex agreed with

other companies to suppress or misrepresent the health hazards of asbestos. Rodarmel, 2011 IL

App (4th) 100463, ¶ 132. Therefore, the court held that Abex was entitled to a judgment n.o.v.

“because of a lack of clear and convincing evidence on the agreement element of a civil

conspiracy.” Id.

¶ 21    In Gillenwater, the Fourth District found there was clear and convincing evidence that

Owens-Illinois and Owens-Corning engaged in a conspiracy to conceal that Kaylo dust was

potentially a respiratory hazard from 1953 to 1958, during the period of the distributorship

                                                   8

between the two companies. Gillenwater, 2013 IL App (4th) 120929, ¶ 96. However, the court

concluded the conspiracy ended with Owens-Illinois’s sale of its Kaylo division to Owens-

Corning at the end of the distributorship agreement in 1958. Id. ¶¶ 107-08. Because the

conspiracy between the two companies ended in 1958, 14 years prior to the plaintiff’s alleged

injury by Kaylo in 1972, the court affirmed the trial court’s grant of judgment n.o.v. to Owens-

Illinois. Id. ¶¶ 107, 118.

¶ 22    In this case, the action is at the summary judgment stage, not the judgment n.o.v. stage as

in the Fourth District cases. Plaintiffs were not required to prove a conspiracy by clear and

convincing evidence in order to survive a motion for summary judgment. Rather, plaintiffs were

merely required to present sufficient facts, when viewed in the light most favorable to plaintiffs,

from which a trier of fact could find the existence of a conspiracy by clear and convincing

evidence. At this stage of the litigation, there are genuine factual issues from which a trier of fact

may conclude by a clear and convincing standard the elements of civil conspiracy. These

questions should have been considered by the trier of fact.

¶ 23    In sum, there are no definitive answers to the disputed questions of fact presented by

plaintiffs at this point in the litigation, thereby precluding summary judgment. Again, the

purpose of summary judgment is to determine whether a genuine issue of material fact exists, not

to try a question of fact. To ignore this standard of analysis and mechanically follow cases

applying a different, judgment n.o.v., standard rather than the rationale and black letter law of

summary judgment stands the concept of summary judgment on its head and results in our

appellate court, in effect, trying the case. For these reasons, the trial court erred in granting

summary judgment in favor of defendants.




                                                  9

¶ 24                                    CONCLUSION

¶ 25   For the foregoing reasons, we reverse the trial court’s order granting summary judgment

in favor of defendants and remand this cause for further proceedings.



¶ 26   Reversed and remanded.




                                               10 

                                 2018 IL App (5th) 160239 

                                      NO. 5-16-0239

                                         IN THE

                           APPELLATE COURT OF ILLINOIS

                                    FIFTH DISTRICT



JOHN JONES and DEBORAH JONES,                   )     Appeal from the
                                                )     Circuit Court of
      Plaintiffs-Appellants,                    )     Richland County.
                                                )
v. 	                                            )     No. 13-L-21
                                                )
PNEUMO ABEX LLC and OWENS-ILLINOIS, INC.,       )     Honorable
                                                )     William C. Hudson,
      Defendants-Appellees.                     )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         August 10, 2018
______________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, J.

                  Honorable John B. Barberis, P.J., and
                  Honorable Thomas M. Welch, J.
                  Concur
______________________________________________________________________________

Attorneys         James R. Wylder, Charles L. Corwin, Stephen F. Wood, Wylder, Corwin,
for               Kelly, LLP, 207 E. Washington, Suite 102, Bloomington, IL 61701
Appellants
______________________________________________________________________________

Attorneys         Robert H. Riley, Matthew V. Chimienti, Matthew J. Fischer, Alissa B.
for               Kelso, Riley, Safer, Holmes & Cancila, LLP, Three First National
Appellees         Plaza, 70 W. Madison Street, Suite 2900, Chicago, IL 60602 (attorneys for
                  Owens-Illinois, Inc.); Raymond H. Modesitt, Wilkinson, Goeller,
                  Modesitt, Wilkinson & Drummy, 333 Ohio Street, Terre Haute, IN 47807;
                  Robert W. Scott, Jr., Swain, Hartshorn & Scott, 411 Hamilton Blvd., Suite
                  1812, Peoria, IL 61602-1104; Reagan W. Simpson, Yetter, Coleman, LLP,
                  909 Fannin, Suite 3600, Houston, TX 77010; Craig L. Unrath, Heyl,
                  Royster, Voelker & Allen, 300 Hamilton Blvd., P.O. Box 6199, Peoria, IL
                  61601-6199 (attorneys for Pneumo Abex LLC)
______________________________________________________________________________
