An Illinois appellate court recently affirmed the trial court’s decision overturning a significant jury verdict against various defendants accused of conspiring to conceal the dangers of asbestos. See Gillenwater v. Honeywell International Inc., et al., No. 4-12-0929 (Ill. App. Fourth District, 2013).

Plaintiff allegedly contracted mesothelioma as a result of exposure to asbestos in his job as a pipe-fitter. Gillenwater never worked for any of the companies in the appeal, but alleged they had engaged in a civil conspiracy with one another and the distributor to conceal the hazards of asbestos-containing products.  Readers understand that plaintiffs will often allege a conspiracy to draw in deep pocket defendants and to attempt to utilize one defendant’s documents against another defendant.  The case went to trial and the jury returned a verdict for significant compensatory and punitive damages against the three defendants.

The court of appeals found that while there was some evidence that these defendants had some knowledge of the risks of asbestos, there was not sufficient evidence for a jury to conclude that they conspired together to conceal that knowledge.  Indeed, plaintiffs had no evidence that defendants Honeywell and Abex ever interacted with the product seller in any way. Honeywell and
Abex appeared to be nothing but bystanders, allegedly committing alleged wrongs that had nothing to do with plaintiff.

Because a conspiracy requires a conspiratorial agreement between the active wrongdoer and the other conspirators, a logical first step when evaluating a claim of conspiracy is to clearly identify the active wrongdoer, the one whose tortious conduct was the proximate cause of harm to the plaintiff, as distinct from those who harmed the plaintiff more indirectly, merely by allegedly encouraging the active wrongdoer. The court noted that the gist of a conspiracy claim is not the agreement itself, but the tortious acts performed in furtherance of the agreement.  It is important to identify the active wrongdoer, because a conspiracy exists only if the others intentionally assisted or encouraged the tortious conduct of the active wrongdoer.  Here the alleged active wrongdoer was Owens-Corning.

Plaintiff did present some evidence of interaction between defendant Owens Illinois and Owens-Corning because it manufactured the insulation that was ultimately distributed by Owens-Corning. The court reviewed the other alleged interactions on studies and warnings, shared directors, stock ownership, contracts, etc., in detail. But also noted that those companies terminated their relationship more than a decade before Gillenwater was first exposed to the products. The court cited numerous federal cases for the proposition that once a conspiracy has been terminated, that conspiracy claim cannot be extended by suggesting a second, subsidiary conspiracy to keep the original one under wraps.

While a conspiracy can be shown by circumstantial evidence, and mere parallel conduct might serve as circumstantial evidence of an agreement under the civil conspiracy theory, it cannot, in itself, be considered clear and convincing evidence of such an agreement among manufacturers of the same or similar products.  Here, the defendants appeared to be engaging in parallel conduct by which they allegedly concealed the dangers of their own asbestos-containing products in order allegedly to maximize their own profits.

This is not to say it is impossible for companies to have a conspiratorial agreement to continue doing that which is in their economic interest. But here a conspiratorial agreement was unnecessary to explain parallel conduct in continuing to do that which is in their economic interest. They each could be expected to pursue their economic interest on their own individual initiative. For that reason, in the absence of more evidence, it would be pure speculation to posit a conspiracy on the basis of consciously parallel conduct that is in each company’s economic interest; and tort liability cannot rest on speculation, said the court of appeals.