ILLINOIS — The plaintiffs, John and Debra Jones, filed suit against Pneumo Abex LLC (Abex), Owens-Illinois, Inc. (O-I) and others, alleging John suffered from lung cancer as a result of exposure to asbestos while employed in construction. The plaintiffs alleged that Abex entered into a civil conspiracy with Johns-Manville to suppress information about the harmful health effects of asbestos. They asserted the same claim against O-I with regard to an alleged conspiracy with Owens-Corning Fiberglas Corporation (O-C). The trial court granted summary judgment for the defendants on those claims. The plaintiffs’ conspiracy claim against Abex did not allege any asbestos exposure directly attributable to Abex. The plaintiffs did allege that he was exposed to Johns-Manville and O-C insulation during his construction career, which began in 1969.
On appeal, the plaintiffs argued that a genuine issue of material fact existed as to: 1) whether the defendants entered into a conspiratorial agreement to suppress or misrepresent information about the health hazards of asbestos; and 2) whether the defendants committed acts in furtherance of such an agreement. The appellate court found that the record was replete with genuine issues of material fact from which the factfinder could reasonably conclude the existence of a civil conspiracy. Specifically with regard to Abex, there was evidence that it entered into an agreement with Johns-Manville to suppress or misrepresent information regarding the health hazards of asbestos. In particular, the court focused on Abex’s 1948 return, at Johns-Manville’s request, of a report by Dr. Gardner regarding experiments with asbestos dust.
Similarly, the plaintiffs presented evidence that O-I began selling Kaylo insulation in 1943 and continued to do so after it received warning that it was potentially a respiratory hazard. Additional evidence indicated that O-I and O-C entered into a distributorship agreement in 1953, under which O-I continued to manufacture Kaylo and O-C distributed it. This agreement lasted until 1958 when O-I sold its Kaylo division to O-C. Evidence was presented that during those five years, no warnings were placed on Kaylo packaging and the companies advertised Kaylo as “non –toxic.”
Based on this evidence, and numerous other examples of genuine issues of material fact, the court reversed the entry of summary judgment on the civil conspiracy claims.