An appeals court has thrown out an asbestos verdict based on an unusual theory that seems to have caught the fancy of judges in the central Illinois city of Bloomington, even if it leaves other lawyers scratching their heads in wonder. Here's the theory: Asbestos companies bear a sort of collective guilt and thus plaintiffs can sue companies they never actually had any contact with.
Jurors in Bloomington have ordered up more than $120 million in damages against companies including Honeywell and Owens-Illinois, even though those companies never sold products to the plaintiffs, or employed them in their factories. Judges allowed jurors to return these blockbuster verdicts based on circumstantial evidence of a conspiracy, such as the fact that two companies shared a director in 1934, or the defendants belonged to a group that shelved as inconclusive an animal study in the 1940s that might have indicated asbestos can cause lung cancer.
The Illinois Supreme Court and lower appellate courts, meanwhile, have struggled mightily to throw out these verdicts without disturbing the state's liberal law regarding civil conspiracy. They've focused on the evidence in each case, finding reasons to overturn jury verdicts while leaving open the possibility that somebody, somewhere will actually be able to prove that a company that never had any contact with the plaintiff can still be ordered to pay damages for nefarious activities behind the scenes.
The dance Illinois courts are doing around these cases is puzzling since tort law in most parts of the country is clear on a few essential elements. First, there must be an injury. Second, the defendant must have some duty to the plaintiff. Third, the defendant must have breached that duty. Finally, the plaintiff must show that the breach more likely than not caused the injury.
In the latest decision handed down Friday, the Fourth Appellate Division chucked out a $2.5 million jury verdict against Honeywell and Pneumo Abex on behalf of a woman who says she contracted mesothelioma, a rare chest cancer tied to asbestos exposure, from fibers that came home on the clothes of her first husband. The husband had worked at Union Rubber & Asbestos Co. in Bloomington from 1953 to 1956. But UNARCO went bust long ago, so lawyers sued Pneumo Abex and Honeywell, which in their corporate pasts both made asbestos brake shoes.
Why these two companies? The decision doesn't explain, other than both were involved in the asbestos business and belonged to the same trade group. Lawyers haven't been able to come up with any smoking-gun memos or testimony directly linking these companies to a conspiracy, let alone the plaintiffs. But under Illinois law, jurors can find companies guilty of civil conspiracy even when the outcome is something more like negligence than an intentional tort; by allowing bad tings to happen, they can be guilty. More conservative states require the conspirators to actually agree to do something.
Instead of simply declaring the asbestos conspiracy theory doesn't work, the Illinois Supreme court tightened the rules. It held that lawyers must prove more than that companies belonged to a trade group or engaged in so-called "parallel conduct," mirror-image actions that make it look like they agreed to something. The state's high court said there must be evidence of an actual agreement -- and it didn't see one in the one case it examined.
In Friday's decision, the appeals court threw out the case on the second element, finding that nobody knew in the 1950s that workers could carry home deadly asbestos fibers on their clothes. That meant there was no duty, and all the other evidence of conspiracy became moot. The court also reversed itself on an earlier ruling, in which it sent back for retrial a $5 million verdict against Honeywell but upheld most of the underlying conspiracy theory. Now, the judges said, they realize that the standard of evidence in that case should have been "clear and convincing," instead of the less stringent "more likely than not" that prevails in most civil cases. Circumstantial evidence won't cut it.
Next up before the appeals court will be a $90 million verdict a jury ordered against Honeywell and Owens-Illinois and Pneumo Abex in March. As in the other cases, the culprit was the long-bankrupt UNARCO factory. Jurors ordered the other companies to pay a retired pipefitter $60 million in punitive damages, however, sending a clear message to companies that never had any meaningful contact with the man that they nevertheless bore the guilt for his mesothelioma.