Van Winkle v. Owens-Corning Fiberglas Corp.
Annotate this Case
NOS. 4-96-0382, 4-96-0383 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
LINDA VAN WINKLE, Individually and ) Appeal from
as Special Administrator of the ) Circuit Court of
Estate of DONALD VAN WINKLE, deceased, ) McLean County
Plaintiff-Appellee and ) No. 95L76
Cross-Appellant, )
v. (4-96-0382) )
OWENS-CORNING FIBERGLAS CORPORATION, )
Defendant-Appellant and )
Cross-Appellee, )
and )
ILLINOIS CENTRAL RAILROAD COMPANY, )
Defendant. )
----------------------------------------)
MARK HICKS as Special Administrator ) No. 94L308
of the Estate of THELMA HICKS, )
deceased, and COLEMAN HICKS, JR., )
Plaintiffs-Appellees and )
Cross-Appellants, )
v. (4-96-0383) )
OWENS-CORNING FIBERGLAS CORPORATION, )
Defendant-Appellant and )
Cross-Appellee, )
and ) Honorable
ILLINOIS CENTRAL RAILROAD COMPANY, ) W. Charles Witte,
Defendant. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In March 1995, plaintiff Linda Van Winkle, individually
and as special administrator of the estate of Donald Van Winkle
(Van Winkle), sued defendant, Owens-Corning Fiberglas Corporation
(OCF), alleging OCF conspired with one or more other manufacturers
of asbestos products (John-Mansville Corporation (J-M), Union
Asbestos and Rubber Company (Unarco), and Raybestos-Manhattan, Inc.
(Raybestos)) to suppress and not warn of the health hazards of
asbestos exposure, thereby causing harm to Van Winkle. In October 1995, plaintiffs Mark Hicks (Mark), as special administrator of the
estate of Thelma Hicks (Hicks), and Coleman Hicks, Jr. (Coleman),
filed an amended complaint against OCF alleging a similar conspira-
cy which caused Hicks' death. The trial court consolidated the
cases for trial, and in November 1995, a jury returned a verdict
for plaintiffs and against OCF. The jury awarded compensatory
damages of $1.1 million to the Hickses and $2.7 million to the Van
Winkles. The jury also awarded $500,000 in punitive damages to the
Van Winkles.
OCF appeals, arguing that the trial court erred by (1)
failing to respond adequately to a question the jury raised during
deliberations; (2) taking judicial notice of certain facts; (3)
excluding certain testimony; (4) refusing to allow certain exhibits
to go to the jury; (5) refusing to give defendant's special
interrogatories; and (6) giving plaintiffs' nonpattern instructions
to the jury. OCF also argues (1) OCF cannot be held liable unless
it joined the conspiracy before the occurrence of acts that caused
Van Winkle's and Hicks' injuries because late-joining conspirators
are not liable for prior acts of coconspirators; and (2) the evi-
dence was insufficient to show a conspiracy.
Because we agree with OCF's first argument--namely, that
the trial court erred in its response to the jury's question--we
reverse and remand for a new trial.
I. BACKGROUND
Van Winkle worked from June 1959 until November 1959 at
a Bloomington, Illinois, asbestos plant then owned by Unarco. It
is undisputed that (1) during 1959, asbestos fibers were released
into the air at the plant; (2) some of those fibers came from prod-
ucts manufactured by J-M; and (3) Van Winkle developed mesothelioma
as a result of his exposure to asbestos at the Unarco plant.
Coleman worked at the Unarco plant from January 1953 until
September 1961. Hicks was exposed to asbestos fibers that Coleman
brought home from the Unarco plant on his clothing and person; as
a result of her exposure, Hicks developed mesothelioma, which
caused her death in August 1995.
A. Events (Not Involving OCF) Occurring Prior to
Decedents' Last Exposure
Much of the evidence presented at trial related to events
that took place prior to Van Winkle's and Hicks' last exposures to
asbestos, in November 1959 and September 1961, respectively. Some
of that evidence related to events in which OCF was not involved,
as follows. Dr. Barry Castleman, plaintiff's expert, testified
that (1) during the 1930s and 1940s, J-M and Raybestos attempted to
suppress asbestos research conducted by Saranac Laboratory
(Saranac); and (2) during the 1930s, J-M and Raybestos tried to
prevent Asbestos magazine from publishing information regarding
asbestosis. In 1936, Saranac, J-M, Raybestos, Unarco, and other
companies (not including OCF, which did not exist until 1938)
reached an agreement that the companies would retain control over
asbestos research they funded, including publication decisions. In
1950, the Quebec Asbestos Mining Association (of which OCF was not
a member) withdrew its funding for asbestos cancer studies. In the
mid-1950s, the Asbestos Textile Institute (of which OCF was not a
member) refused to fund cancer studies.
B. Events (Involving OCF) Occurring Prior to
Decedents' Last Exposure
Some preexposure evidence related to events involving OCF
but not Raybestos, J-M, or Unarco. OCF internal memoranda dated
February 1939 and July 1966 indicated an OCF policy of referring
all inquiries regarding health matters to its legal department.
Dr. Jon Konzen, a former medical director of OCF,
testified that by January 1942, OCF executives knew that airborne
asbestos can cause asbestosis. In a January 1942 internal memoran-
dum detailing OCF's strategy for 1942, an OCF employee proposed
collecting articles identifying asbestos as a cause of asbestosis
as a "weapon-in-reserve," for possible use in negotiations with the
Asbestos Workers' Union.
In 1953, OCF began distributing Kaylo, an asbestos-
containing product manufactured by Owens-Illinois. In October
1956, OCF and Owens-Illinois produced a brochure advertising Kaylo
that described Kaylo as "nontoxic." In September 1959, OCF pro-
duced a similar brochure under its own name also describing Kaylo
as "nontoxic." Konzen testified that OCF superiors knew the state-
ment regarding Kaylo's toxicity was false.
C. Events (Involving OCF) Occurring After Decedents'
Last Exposure
In 1964, J-M's medical director informed F.H. Edwards, an
OCF employee, that J-M planned to place warnings on its shipping
containers as of October 1964 but not on the products themselves.
In August 1964, Edwards sent an internal memo to OCF's chief legal
counsel, asking whether OCF should "follow the J-M lead" to protect
itself from increasingly stringent health laws and third-party ac-
tions. OCF began labeling its own shipping containers in 1966. In
a November 1965 internal memo, Edwards suggested OCF should find a
way to prevent Dr. Selikoff (a physician who was attempting to
publicize the health effects of asbestos) from affecting OCF's
sales. Edwards also noted his "surprise and suspicions" about
certain recent statements made by J-M's medical director.
In the late 1960s, an OCF employee and a J-M employee
drafted a pamphlet for the National Manufacturers Association (NMA)
(an organization to which OCF and Konzen belonged) regarding recom-
mended health safety practices for handling asbestos-containing
products. The pamphlet described asbestos as "potentially
injurious." However, the pamphlet mentioned nothing about the
dangers of breathing asbestos dust or that overexposure could occur
without immediate symptoms. According to Castleman, minutes of a
meeting of a November 1988 cement manufacturers' association (of
which OCF was not a member) showed the pamphlet was published "with
avoidance of liability in mind" and was not "intended *** to inform
the workers *** about the hazards." Castleman also testified that
the 1966 pamphlet is "probably the strongest evidence" OCF
participated in the alleged conspiracy.
In April 1968, Konzen received an internal memorandum
from OCF employee John Vyverberg, regarding a "position paper on
fibrous glass," which attached a J-M report describing asbestos
health dangers and asked Konzen's view about whether it would be
"wise from a liability protection point of view [for OCF] to indi-
cate that there might be 'potential hazards.'" That memo also
indicated OCF's approach to date had been to indicate that "'all
medical research to date indicates no hazard to health.'" In March
1970, Konzen advised Vyverberg not to attend an asbestos disease
conference because it would be a "giant propaganda exercise" and
would give "tacit approval to Selikoff."
A July 1968 internal memorandum informed OCF "top
management" that Vyverberg had indicated "much care and consid-
eration" went into developing the constitution and bylaws of the
Insulation Industry Hygiene Council (the memo called it Selikoff's
"brainchild"). The memo noted that the strategy was an attempt to
"limit the influence of Dr. Selikoff" and avoid "clinical study of
insulation workers" within the council.
In April 1970, OCF purchased the Bloomington Unarco
plant. Within two weeks after its purchase, Konzen reviewed the
potential health hazards within the plant. By July 1970, Konzen
had received preliminary survey results. In an internal memo-
randum, Konzen stated: "This study demonstrates immediate need for
inplant environmental control of asbestos so our employees do not
continue to be severely exposed to airborne asbestos fiber." As a
result of the industrial hygiene survey, Konzen suggested to OCF
superiors that labeling should be done on asbestos products. In
response, he received an internal memorandum from OCF employee J.P.
Kern, which stated, "Are you saying that we have to do this now?
I naturally would like to delay this requirement as long as
possible." (Emphasis in original.) Unarco knew of the dangers of
asbestos but did not warn plant workers during its ownership of the
plant. After purchasing the plant from Unarco, OCF did not inform
plant workers of any asbestos hazards. This failure to inform
continued during the entire time OCF used asbestos at the plant.
In 1972, an OCF plant manager requested information on
asbestos to transmit to Japan. OCF responded by telling the
manager that he was "probing into a very sensitive area." The
internal memo also questioned how much information OCF wanted to
release on the subject and forwarded the manager's request to OCF's
legal department and Konzen.
In 1978, the Secretary of the United States Department of
Health and Human Services publicly announced the risks associated
with asbestos exposure. Konzen and other OCF employees then con-
tacted eight other asbestos manufacturers (including J-M) to see
how those companies had responded or planned to respond to the an-
nouncement. Konzen testified that OCF possessed the necessary
medical knowledge to act in response to the announcement without
contacting other companies. Konzen also stated that asbestos
companies formed a tight-knit community, and it was common for
their medical directors to talk with each other.
II. OCF'S USE OF FOOTNOTES
Before addressing the merits, we address OCF's use of
footnotes. Supreme Court Rule 341(a) provides that "[f]ootnotes,
if any, shall be used sparingly." 155 Ill. 2d R. 341(a). In
addition, Rule 344(b) discourages the use of footnotes in briefs.
155 Ill. 2d R. 344(b). OCF's brief contains 12 footnotes; its
reply brief contains 18. All are single spaced, and many contain
substantive argument that should be presented in the body of the
brief. This simply cannot be characterized as using footnotes
"sparingly." We also note that OCF's reply brief is 27 pages long
and probably would have violated the page limitation of Rule 341(a)
had the 18 footnotes been integrated into the body of the brief.
See 155 Ill. 2d R. 341(a) (page limitation for reply briefs, if not
printed, is 27 pages). Using footnotes to circumvent the page
limitation violates "the spirit, and probably *** the letter, of
the law." In re Estate of Marks, 231 Ill. App. 3d 313, 320, 595 N.E.2d 717, 721 (1992).
Adherence to the page limitations and guidelines for
footnote usage is not an inconsequential matter. Lagen v. Balcor
Co., 274 Ill. App. 3d 11, 14-15, 653 N.E.2d 968, 971 (1995). We
agree with the Lagen court that "Rule 341 represents the Illinois
Supreme Court's considered opinion of the format that best
facilitates the clear and orderly presentation of arguments."
Lagen, 274 Ill. App. 3d at 15, 653 N.E.2d at 971. In the future,
this court may simply disregard footnotes when parties use them in
violation of Rule 341(a). Of course, the best way for a party to
ensure that we do not disregard some portion of its brief is to
refrain from using any footnotes at all. Aside from limitations
imposed by supreme court rules, omitting footnotes constitutes
better--and more persuasive--writing. See S. Wilgenbusch, Preparing
Your Brief: Whether 'Tis Better to Footnote--Or Not, 7 App. L.
Rev. 39 (1996).
III. THE TRIAL COURT'S RESPONSE TO THE JURY'S NOTE
OCF first argues that the trial court erred by failing to
adequately respond to a question of law the jury raised during
deliberations. We agree.
During deliberations, the jury sent out a written note
which read as follows:
"Does a conspiracy have to be between
[OCF] and another company, or can a conspiracy
be within the same company ([OCF]) with the
company officers conspiring among themselves?
We are confused about the meaning of 'one
or more parties' in a conspiracy. Can this
mean [OCF] alone, or does it have to be [OCF]
and another company?" (Emphasis in original.)
The court asked OCF's counsel for a suggested response, and counsel
stated, in relevant part, as follows: "Well, I would suggest to
the [c]ourt that both questions would be easy to answer. The
answer is obviously, yes, it has to be between OCF and another
company as plead[ed]. You cannot conspire with yourself."
Plaintiffs' counsel objected to this suggestion and suggested
instead that the court respond that the instructions provided
contain the applicable law. After discussion with counsel, the
court responded with a note, stating "[t]he instructions which the
[c]ourt has provided contain the law applicable to these cases.
Please refer to your instructions."
In People v. Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994), the supreme court addressed a trial court's
response to a jury question and wrote the following:
"A trial court may exercise its discre-
tion and properly decline to answer a jury's
inquiries where the instructions are readily
understandable and sufficiently explain the
relevant law, where further instructions would
serve no useful purpose or would potentially
mislead the jury, when the jury's inquiry
involves a question of fact, or if the giving
of an answer would cause the court to express
an opinion which would likely direct a verdict
one way or another. [Citation.] However,
jurors are entitled to have their inquiries
answered. Thus, the general rule is that the
trial court has a duty to provide instruction
to the jury where it has posed an explicit
question or requested clarification on a point
of law arising from facts about which there is
doubt or confusion. [Citation.] This is true
even though the jury was properly instructed
originally. [Citation.] When a jury makes
explicit its difficulties, the court should
resolve them with specificity and accuracy
[citations]. *** The failure to answer or
the giving of a response which provides no
answer to the particular question of law posed
has been held to be prejudicial error."
The supreme court viewed the question the jury submitted
to the court in Childs as constituting "an explicit question which
manifested juror confusion on a substantive legal issue." Childs,
159 Ill. 2d at 229, 636 N.E.2d at 540. In our opinion, the
question asked here constituted the same thing. Although Childs
was a criminal case, we deem that distinction irrelevant and hold
that the supreme court's analysis in Childs applies fully to civil
cases as well.
The jurors here asked an explicit question: "Does a con-
spiracy have to be between [OCF] and another company, or can a con-
spiracy be within the same company ([OCF)] with the company
officers conspiring among themselves?" (Emphasis in original.)
This question is no less explicit than the question asked in
Childs, whether the defendant "could be found guilty of armed
robbery and either voluntary or involuntary manslaughter, or if a
finding of guilt of armed robbery mandated a 'guilty of murder'
verdict." Childs, 159 Ill. 2d at 229, 636 N.E.2d at 540.
The jurors in this case specifically expressed their con-
fusion regarding whether "one or more parties" in a conspiracy
could mean OCF alone. Plaintiffs point out the court had earlier
(and correctly) instructed the jury that--for a conspiracy to
exist--OCF had to agree with another company. Also, the issues in-
struction identified those other companies. However, as the court
in Childs wrote, "[W]hether the instructions were proper *** is not
the determinative inquiry. The issue is whether the instructions
were clearly understandable to the jury." Childs, 159 Ill. 2d at
231, 636 N.E.2d at 540.
Further, the jury's question here involved a substantive
legal issue--namely, the elements of a civil conspiracy. In Adcock
v. Brakegate, Ltd., 164 Ill. 2d 54, 62, 645 N.E.2d 888, 894 (1994),
the supreme court held that a civil conspiracy consists of a combi-
nation of two or more persons or entities for the purpose of
accomplishing by some concerted action either an unlawful purpose
or a lawful purpose by unlawful means. However, a civil conspira-
cy cannot exist between a corporation's own officers or employees.
See Salaymeh v. Interqual, Inc., 155 Ill. App. 3d 1040, 1044, 508 N.E.2d 1155, 1158 (1987); Bonanno v. La Salle & Bureau County R.R.
Co., 87 Ill. App. 3d 988, 995, 409 N.E.2d 481, 486 (1980).
Accordingly, because the jury's question here constituted "an
explicit question which manifested juror confusion on a substantive
legal issue," we hold that the trial court abused its discretion in
its response to the jury's written question--which was, in effect,
no response at all.
Additionally, in our opinion, the jury's question of law
concerned a potentially dispositive issue. Plaintiffs introduced
into evidence several internal memoranda between OCF personnel in
support of their claim that OCF conspired with other asbestos
companies. OCF argued at trial that a conspiracy cannot exist when
companies merely "acted similarly but independently of one another
without agreement" and insufficient evidence existed to show that
OCF had conspired with other asbestos companies. Thus, it was
critical to OCF's defense that the jury understand that a con-
spiracy could not exist among OCF's officers. Given the consid-
erable importance of this issue to OCF's defense, we conclude that
the trial court's error in responding to the jury's question caused
substantial prejudice to OCF and requires reversal.
In so concluding, we note that the better practice would
have been for OCF's counsel to have provided the trial court with
a written draft of the specific response counsel wanted the court
to give the jury, just as counsel provides a written proposed
instruction during the jury instruction conference. Supreme Court
Rule 239(c) requires parties to submit proposed jury instructions
in writing so that the record shows exactly the parties' respective
positions on how the jury should be instructed. 134 Ill. 2d R.
239(c). We should require nothing less when the jury raises a
question during deliberations, requiring the court to decide how to
respond to--that is, to instruct--the jury. Indeed, in the midst
of jury deliberations after a vigorously contested trial, a
question from the jury deserves as much--if not more--thoughtful
consideration as did the original instructions. Accordingly, we
hold that when jurors raise a question during deliberations,
counsel must submit--in writing--the specific response counsel
wants the court to give the jury. Because we are pronouncing a new
rule, we believe it is only equitable that we apply it prospective-
ly. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82,
86, 679 N.E.2d 1224, 1226 (1997) (the issuing court itself may
expressly state that its decision will be applied prospectively
only); see also Torres v. Walsh, 98 Ill. 2d 338, 353, 456 N.E.2d 601, 608 (1983). We also note that, in the present case, OCF's
counsel's failure to submit a written draft of OCF's proposed
specific response to the jury's question does not constitute waiver
because--in addition to the fact that, prior to this point, no case
law or rule existed so requiring--the record shows (1) the court
clearly understood OCF's suggestions; and (2) the jury's questions
were so well stated that an appropriate response to the jury's note
would have been the following:
"The court has received your note in which you
ask two questions: (1) [Jury's first ques-
tion]; and (2) [Jury's second question]. The
answer to your first question is 'the conspir-
acy has to be between OCF and another compa-
ny,' and the answer to your second question is
'"one or more parties" in a conspiracy means
OCF and another company.'"
IV. ISSUES ON REMAND
OCF raises several other issues likely to arise on
remand.
A. Late Entry by Coconspirator
OCF argues that even if sufficient evidence existed that
it ultimately joined the alleged conspiracy, OCF still may not be
held liable unless it joined before the acts which caused plain-
tiffs' injuries. OCF contends that a late-joining conspirator is
not liable for any acts committed by coconspirators before it joins
the conspiracy. In response, plaintiffs cite a statement appearing
in Illinois Law and Practice that "every conspirator is liable for
all of the acts of each of his co-conspirators done in furtherance
of the objects of the conspiracy committed before or after his
entry into the conspiracy." 11 Ill. L. & Prac. Conspiracy 16, at
150 (1981). We do not agree with either contention.
Although we believe it unfair to hold a late-joining
conspirator responsible for all prior acts of its coconspirators
simply because it ultimately joined the ongoing civil conspiracy,
it does not follow that a late-joining conspirator is never respon-
sible for prior acts of its coconspirators. In Page v. Keeves, 362 Ill. 64, 74, 199 N.E. 131, 135 (1935), the supreme court, consider-
ing a conspiracy to defraud an individual of her real estate, wrote
the following:
"Where one assists in the commission of a
wrongful act against another, or with knowl-
edge approves of it after it is done, if done
for his benefit, and he avails himself of the
fruits of such improper conduct, he is liable
in the same manner as if he himself had com-
mitted the same wrongful act." (Emphasis add-
ed.)
Further, we find instructive the decision in Havoco of America,
Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir. 1980), in which
the court wrote, "a co-conspirator who joins a conspiracy, with
knowledge of what has gone on before and with an intent to pursue
the same objectives" (emphasis added) may be held responsible for
the prior acts of its coconspirators.
Consistent with the views expressed in Page and Havoco,
we conclude that a party who, with knowledge and approval of the
prior acts of its coconspirators, joins a preexisting civil con-
spiracy--by satisfying the elements of civil conspiracy as set
forth in Adcock--is liable for those prior tortious acts of its
coconspirators.
This conclusion is not inconsistent with the supreme
court's decision in Adcock, which discussed the elements necessary
to state a cause of action for conspiracy and held, in relevant
part, as follows:
"Once a defendant knowingly agrees with an-
other to commit an unlawful act or a lawful
act in an unlawful manner, that defendant may
be held liable for any tortious act committed
in furtherance of the conspiracy, whether such
tortious act is intentional or negligent in
nature." Adcock, 164 Ill. 2d at 64, 645 N.E.2d at 894-95.
The supreme court in Adcock did not address whether a late-joining
conspirator may be liable for prior acts of its coconspirators.
In light of our conclusion that late-joining conspirators
are liable for prior tortious acts only when it is proved they knew
and approved of those prior acts, we hold that, on remand, to the
extent plaintiffs allege that OCF joined the conspiracy after acts
that caused Van Winkle's and Hicks' injuries, they must present
evidence that OCF knew and approved of the prior acts of the other
asbestos companies when it joined the conspiracy in order to prove
OCF is responsible for those prior acts. On appeal, plaintiffs
contend OCF joined the alleged conspiracy "at least by 1953." If
plaintiffs so allege on remand, they must provide evidence that OCF
knew and approved of the acts of the other asbestos companies
during the 1930s and 1940s in order for OCF to be liable.
We also note that if the trial court, on remand, (1)
finds sufficient evidence that OCF joined the conspiracy, but (2)
does not find sufficient evidence that OCF is responsible for the
acts of its coconspirators prior to OCF's entry into the conspira-
cy, then evidence of those prior acts is still admissible for the
limited purpose of showing the scope and nature of the conspiracy
OCF joined. Under these circumstances, however, the court must
instruct the jury that it may consider the "prior acts" evidence
only to show the scope and nature of the conspiracy and not as
showing that OCF is responsible for those prior acts.
Consistent with these views, we also hold that the trial
court erred by giving plaintiffs' tendered instruction, which read,
in relevant part: "[Instruction No. 31A:] *** Each conspirator
is liable for all of the acts of each conspirator done in further-
ance of the objects of the conspiracy committed before, or after,
its entry into the conspiracy." Absent plaintiffs' proving that
OCF knew and approved of its coconspirators' prior acts, this in-
struction did not accurately state the law.
B. Judicial Notice
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance Sheet
No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Nonpublishable material under Supreme Court Rule 23 omitted.
C. The Trial Court's Refusal To Allow Exhibits
To Go to the Jury
OCF next argues the trial court erred when it "changed
its mind about the admissibility" of three medical reports just
prior to closing arguments. In response, plaintiffs argue that the
court never reversed its ruling regarding the admissibility of the
reports, but exercised its discretion by refusing to allow the
exhibits to go to the jury during deliberations. We agree with
plaintiffs.
Section 2-1107 of the Code of Civil Procedure (Code)
provides that documents read or received into evidence "may be
taken by the jury to the jury room for use during the jury's
deliberation." (Emphasis added.) 735 ILCS 5/2-1107(d) (West
1994). The decision whether to send exhibits to the jury room is
within the trial court's sound discretion, and a reviewing court
will not disturb that decision absent an abuse of discretion that
prejudices a party. People v. Hudson, 157 Ill. 2d 401, 439, 626 N.E.2d 161, 177 (1993).
Here, the trial court admitted into evidence three of
OCF's exhibits: (1) a 1937 United States Public Health Service
report; (2) a 1938 United States Public Health Service report; and
(3) a 1955 article by a Saranac researcher. During the final jury
instruction conference, the court declined "to submit those three
documents to the jury." The record clearly shows the court did
not--as OCF contends--belatedly reverse its decision to admit the
exhibits. Instead, the court simply exercised its discretion by
refusing to send the documents to the jury room.
Thus, on remand, the trial court may, in its sound
discretion, decline to submit these exhibits to the jury. However,
the court should make clear to the parties that resolving what
exhibits will go to the jury during deliberations is not the same
as resolving what exhibits will be admitted into evidence. Just
because the court has admitted an exhibit does not necessarily mean
that it will go to the jury. The court should make clear that it
will decide that issue after the court has ruled on the admissibil-
ity of the exhibits in question and prior to closing arguments
(unless the court, in its discretion, makes that determination
earlier in the proceedings).
D. Form of OCF's Special Interrogatories
Nonpublishable material under Supreme Court Rule 23 omitted.
E. Nonpattern Instruction on Damages
OCF next argues that the trial court erred by giving
plaintiffs' tendered nonpattern instruction advising the jury
that all damages awarded to the Van Winkles would have to be
awarded to them in this action or not at all. We agree.
Plaintiffs Donald and Linda Van Winkle tendered the follow-
ing instruction, asserting it was supported by the supreme
court's holding in Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 657 N.E.2d 997 (1995):
"[Instruction No. 43:] If you find for the plaintiffs, Don and
Linda Van Winkle, on the question of liability, the damages which
you award in this case are all of the damages which they or Don
Van Winkle's survivors will be permitted to recover for the
injuries which he has sustained. Even if the plaintiff, Don Van
Winkle, dies from the injuries, the law precludes his survivors
from recovering any further damages."
In Varelis (167 Ill. 2d at 460, 657 N.E.2d at 1002), the supreme
court held that, under the Wrongful Death Act (Ill. Rev. Stat.
1987, ch. 70, pars. 1 through 2.2), an action for personal
injuries brought during a decedent's lifetime will preclude a
subsequent action for wrongful death premised on the same con-
duct. Although the statements tendered as instructions may be
literally true, nowhere in Varelis does the above language
appear. Further, Supreme Court Rule 239(a) provides that pattern
jury instructions should be used whenever they accurately state
the law applicable in a case. 134 Ill. 2d R. 239(a). A trial
court may give nonpattern jury instructions only when the pattern
jury instruction on point does not adequately state the law.
Swartz v. Sears, Roebuck & Co., 264 Ill. App. 3d 254, 266, 636 N.E.2d 642, 650 (1993).
The pattern instructions actually given accurately
stated the law governing damages awardable to Van Winkle if the
jury found OCF liable for his injuries. We conclude that
plaintiffs' nonpattern instruction No. 43 was unnecessary and
could be viewed as advising the jury to compensate Van Winkle for
both his lifetime damages and his wrongful death in the present
action (though this action did not seek compensation for Van
Winkle's wrongful death). Accordingly, we hold that the trial
court erred by giving this nonpattern instruction.
F. The Trial Court's Decision to Strike Mark Hicks'
Punitive Damages Request
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
G. Judgment N.O.V.
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23.
V. CONCLUSION
For the reasons stated, we reverse and remand for a new
trial consistent with the views expressed herein.
Reversed and remanded.
KNECHT, J., concurs.
McCULLOUGH, J., dissents.
JUSTICE McCULLOUGH, dissenting:
When a question comes from a deliberating jury, a trial
judge is faced with a dilemma. Almost any response not agreed to
by the litigants becomes fodder for an appeal. Any selective
reading or highlighting of certain instructions violates a command
contained in the instructions--do not single out an instruction.
Counsel may make tactical decisions in recommending the
choice of language of an instruction or which parts of a pattern
instruction should be given. They do so for the best interests of
their client. The cooperation that occurs is not altruistic, but
it is nonetheless cooperation. The goal is to come up with a
legally correct set of instructions to inform and guide the jury.
Courts of review frequently admonish appellants they cannot com-
plain about an instruction unless an alternative instruction was
offered. Holder v. Caselton, 275 Ill. App. 3d 950, 959, 657 N.E.2d 680, 688 (1995); Kochan v. Owens-Corning Fiberglass Corp., 242 Ill.
App. 3d 781, 800, 610 N.E.2d 683, 695 (1993).
When counsel and the trial judge confer on how to answer
a jury question, they are conducting a mini instruction conference.
In this case, OCF said both questions would be easy to answer yes.
Plaintiffs' counsel objected to this suggestion and suggested the
court respond that the instructions provided contain the applicable
law. Neither suggestion was of much assistance to the trial judge.
If the answer was so easy and obvious, OCF could have
proposed an instruction--i.e., a suggested response--in writing.
Neither at trial nor at oral argument on appeal did OCF's counsel
suggest precisely what the response should have been.
OCF complains on appeal about the court's response to the
jury questions. OCF provided no meaningful assistance to the trial
court in framing an appropriate response, nor did the plaintiffs.
However, it is OCF that contends it was disadvantaged when the
trial court replied with an accurate, often-used and standard
response.
Our supreme court has stated:
"[A] trial court may exercise its discretion
and properly decline to answer a jury's in-
quiries 'where the instructions are readily
understandable and sufficiently explain the
relevant law, where further instructions would
serve no useful purpose or would potentially
mislead the jury, when the jury's inquiry
involves a question of fact, or if the giving
of an answer would cause the court to express
an opinion which would likely direct a verdict
one way or another.' Childs, 159 Ill. 2d at
228[, 636 N.E.2d at 539]." People v. McDon-
ald, 168 Ill. 2d 420, 460, 660 N.E.2d 832,
849-50 (1995).
The instructions previously given by the trial court
correctly instructed the jury. The answer, given by the trial
court, after conference with counsel, was not error.
With respect to the remand issues, I do not believe
reversible error occurred and would affirm the judgment of the
trial court.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
LINDA VAN WINKLE, Individually and ) Appeal from
as Special Administrator of the ) Circuit Court of
Estate of DONALD VAN WINKLE, deceased, ) McLean County
Plaintiff-Appellee and ) No. 95L76
Cross-Appellant, )
v. (4-96-0382) )
OWENS-CORNING FIBERGLAS CORPORATION, )
Defendant-Appellant and )
Cross-Appellee, )
and )
ILLINOIS CENTRAL RAILROAD COMPANY, )
Defendant. )
----------------------------------------)
MARK HICKS as Special Administrator ) No. 94L308
of the Estate of THELMA HICKS, )
deceased, and COLEMAN HICKS, JR., )
Plaintiffs-Appellees and )
Cross-Appellants, )
v. (4-96-0383) )
OWENS-CORNING FIBERGLAS CORPORATION, )
Defendant-Appellant and )
Cross-Appellee, )
and ) Honorable
ILLINOIS CENTRAL RAILROAD COMPANY, ) W. Charles Witte,
Defendant. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In March 1995, plaintiff Linda Van Winkle, individually
and as special administrator of the estate of Donald Van Winkle
(Van Winkle), sued defendant, Owens-Corning Fiberglas Corporation
(OCF), alleging OCF conspired with one or more other manufacturers
of asbestos products (John-Mansville Corporation (J-M), Union
Asbestos and Rubber Company (Unarco), and Raybestos-Manhattan, Inc.
(Raybestos)) to suppress and not warn of the health hazards of
asbestos exposure, thereby causing harm to Van Winkle. In October 1995, plaintiffs Mark Hicks (Mark), as special administrator of the
estate of Thelma Hicks (Hicks), and Coleman Hicks, Jr. (Coleman),
filed an amended complaint against OCF alleging a similar conspira-
cy which caused Hicks' death. The trial court consolidated the
cases for trial, and in November 1995, a jury returned a verdict
for plaintiffs and against OCF. The jury awarded compensatory
damages of $1.1 million to the Hickses and $2.7 million to the Van
Winkles. The jury also awarded $500,000 in punitive damages to the
Van Winkles.
OCF appeals, arguing that the trial court erred by (1)
failing to respond adequately to a question the jury raised during
deliberations; (2) taking judicial notice of certain facts; (3)
excluding certain testimony; (4) refusing to allow certain exhibits
to go to the jury; (5) refusing to give defendant's special
interrogatories; and (6) giving plaintiffs' nonpattern instructions
to the jury. OCF also argues (1) OCF cannot be held liable unless
it joined the conspiracy before the occurrence of acts that caused
Van Winkle's and Hicks' injuries because late-joining conspirators
are not liable for prior acts of coconspirators; and (2) the evi-
dence was insufficient to show a conspiracy.
Because we agree with OCF's first argument--namely, that
the trial court erred in its response to the jury's question--we
reverse and remand for a new trial.
I. BACKGROUND
Van Winkle worked from June 1959 until November 1959 at
a Bloomington, Illinois, asbestos plant then owned by Unarco. It
is undisputed that (1) during 1959, asbestos fibers were released
into the air at the plant; (2) some of those fibers came from prod-
ucts manufactured by J-M; and (3) Van Winkle developed mesothelioma
as a result of his exposure to asbestos at the Unarco plant.
Coleman worked at the Unarco plant from January 1953 until
September 1961. Hicks was exposed to asbestos fibers that Coleman
brought home from the Unarco plant on his clothing and person; as
a result of her exposure, Hicks developed mesothelioma, which
caused her death in August 1995.
A. Events (Not Involving OCF) Occurring Prior to
Decedents' Last Exposure
Much of the evidence presented at trial related to events
that took place prior to Van Winkle's and Hicks' last exposures to
asbestos, in November 1959 and September 1961, respectively. Some
of that evidence related to events in which OCF was not involved,
as follows. Dr. Barry Castleman, plaintiff's expert, testified
that (1) during the 1930s and 1940s, J-M and Raybestos attempted to
suppress asbestos research conducted by Saranac Laboratory
(Saranac); and (2) during the 1930s, J-M and Raybestos tried to
prevent Asbestos magazine from publishing information regarding
asbestosis. In 1936, Saranac, J-M, Raybestos, Unarco, and other
companies (not including OCF, which did not exist until 1938)
reached an agreement that the companies would retain control over
asbestos research they funded, including publication decisions. In
1950, the Quebec Asbestos Mining Association (of which OCF was not
a member) withdrew its funding for asbestos cancer studies. In the
mid-1950s, the Asbestos Textile Institute (of which OCF was not a
member) refused to fund cancer studies.
B. Events (Involving OCF) Occurring Prior to
Decedents' Last Exposure
Some preexposure evidence related to events involving OCF
but not Raybestos, J-M, or Unarco. OCF internal memoranda dated
February 1939 and July 1966 indicated an OCF policy of referring
all inquiries regarding health matters to its legal department.
Dr. Jon Konzen, a former medical director of OCF,
testified that by January 1942, OCF executives knew that airborne
asbestos can cause asbestosis. In a January 1942 internal memoran-
dum detailing OCF's strategy for 1942, an OCF employee proposed
collecting articles identifying asbestos as a cause of asbestosis
as a "weapon-in-reserve," for possible use in negotiations with the
Asbestos Workers' Union.
In 1953, OCF began distributing Kaylo, an asbestos-
containing product manufactured by Owens-Illinois. In October
1956, OCF and Owens-Illinois produced a brochure advertising Kaylo
that described Kaylo as "nontoxic." In September 1959, OCF pro-
duced a similar brochure under its own name also describing Kaylo
as "nontoxic." Konzen testified that OCF superiors knew the state-
ment regarding Kaylo's toxicity was false.
C. Events (Involving OCF) Occurring After Decedents'
Last Exposure
In 1964, J-M's medical director informed F.H. Edwards, an
OCF employee, that J-M planned to place warnings on its shipping
containers as of October 1964 but not on the products themselves.
In August 1964, Edwards sent an internal memo to OCF's chief legal
counsel, asking whether OCF should "follow the J-M lead" to protect
itself from increasingly stringent health laws and third-party ac-
tions. OCF began labeling its own shipping containers in 1966. In
a November 1965 internal memo, Edwards suggested OCF should find a
way to prevent Dr. Selikoff (a physician who was attempting to
publicize the health effects of asbestos) from affecting OCF's
sales. Edwards also noted his "surprise and suspicions" about
certain recent statements made by J-M's medical director.
In the late 1960s, an OCF employee and a J-M employee
drafted a pamphlet for the National Manufacturers Association (NMA)
(an organization to which OCF and Konzen belonged) regarding recom-
mended health safety practices for handling asbestos-containing
products. The pamphlet described asbestos as "potentially
injurious." However, the pamphlet mentioned nothing about the
dangers of breathing asbestos dust or that overexposure could occur
without immediate symptoms. According to Castleman, minutes of a
meeting of a November 1988 cement manufacturers' association (of
which OCF was not a member) showed the pamphlet was published "with
avoidance of liability in mind" and was not "intended *** to inform
the workers *** about the hazards." Castleman also testified that
the 1966 pamphlet is "probably the strongest evidence" OCF
participated in the alleged conspiracy.
In April 1968, Konzen received an internal memorandum
from OCF employee John Vyverberg, regarding a "position paper on
fibrous glass," which attached a J-M report describing asbestos
health dangers and asked Konzen's view about whether it would be
"wise from a liability protection point of view [for OCF] to indi-
cate that there might be 'potential hazards.'" That memo also
indicated OCF's approach to date had been to indicate that "'all
medical research to date indicates no hazard to health.'" In March
1970, Konzen advised Vyverberg not to attend an asbestos disease
conference because it would be a "giant propaganda exercise" and
would give "tacit approval to Selikoff."
A July 1968 internal memorandum informed OCF "top
management" that Vyverberg had indicated "much care and consid-
eration" went into developing the constitution and bylaws of the
Insulation Industry Hygiene Council (the memo called it Selikoff's
"brainchild"). The memo noted that the strategy was an attempt to
"limit the influence of Dr. Selikoff" and avoid "clinical study of
insulation workers" within the council.
In April 1970, OCF purchased the Bloomington Unarco
plant. Within two weeks after its purchase, Konzen reviewed the
potential health hazards within the plant. By July 1970, Konzen
had received preliminary survey results. In an internal memo-
randum, Konzen stated: "This study demonstrates immediate need for
inplant environmental control of asbestos so our employees do not
continue to be severely exposed to airborne asbestos fiber." As a
result of the industrial hygiene survey, Konzen suggested to OCF
superiors that labeling should be done on asbestos products. In
response, he received an internal memorandum from OCF employee J.P.
Kern, which stated, "Are you saying that we have to do this now?
I naturally would like to delay this requirement as long as
possible." (Emphasis in original.) Unarco knew of the dangers of
asbestos but did not warn plant workers during its ownership of the
plant. After purchasing the plant from Unarco, OCF did not inform
plant workers of any asbestos hazards. This failure to inform
continued during the entire time OCF used asbestos at the plant.
In 1972, an OCF plant manager requested information on
asbestos to transmit to Japan. OCF responded by telling the
manager that he was "probing into a very sensitive area." The
internal memo also questioned how much information OCF wanted to
release on the subject and forwarded the manager's request to OCF's
legal department and Konzen.
In 1978, the Secretary of the United States Department of
Health and Human Services publicly announced the risks associated
with asbestos exposure. Konzen and other OCF employees then con-
tacted eight other asbestos manufacturers (including J-M) to see
how those companies had responded or planned to respond to the an-
nouncement. Konzen testified that OCF possessed the necessary
medical knowledge to act in response to the announcement without
contacting other companies. Konzen also stated that asbestos
companies formed a tight-knit community, and it was common for
their medical directors to talk with each other.
II. OCF'S USE OF FOOTNOTES
Before addressing the merits, we address OCF's use of
footnotes. Supreme Court Rule 341(a) provides that "[f]ootnotes,
if any, shall be used sparingly." 155 Ill. 2d R. 341(a). In
addition, Rule 344(b) discourages the use of footnotes in briefs.
155 Ill. 2d R. 344(b). OCF's brief contains 12 footnotes; its
reply brief contains 18. All are single spaced, and many contain
substantive argument that should be presented in the body of the
brief. This simply cannot be characterized as using footnotes
"sparingly." We also note that OCF's reply brief is 27 pages long
and probably would have violated the page limitation of Rule 341(a)
had the 18 footnotes been integrated into the body of the brief.
See 155 Ill. 2d R. 341(a) (page limitation for reply briefs, if not
printed, is 27 pages). Using footnotes to circumvent the page
limitation violates "the spirit, and probably *** the letter, of
the law." In re Estate of Marks, 231 Ill. App. 3d 313, 320, 595 N.E.2d 717, 721 (1992).
Adherence to the page limitations and guidelines for
footnote usage is not an inconsequential matter. Lagen v. Balcor
Co., 274 Ill. App. 3d 11, 14-15, 653 N.E.2d 968, 971 (1995). We
agree with the Lagen court that "Rule 341 represents the Illinois
Supreme Court's considered opinion of the format that best
facilitates the clear and orderly presentation of arguments."
Lagen, 274 Ill. App. 3d at 15, 653 N.E.2d at 971. In the future,
this court may simply disregard footnotes when parties use them in
violation of Rule 341(a). Of course, the best way for a party to
ensure that we do not disregard some portion of its brief is to
refrain from using any footnotes at all. Aside from limitations
imposed by supreme court rules, omitting footnotes constitutes
better--and more persuasive--writing. See S. Wilgenbusch, Preparing
Your Brief: Whether 'Tis Better to Footnote--Or Not, 7 App. L.
Rev. 39 (1996).
III. THE TRIAL COURT'S RESPONSE TO THE JURY'S NOTE
OCF first argues that the trial court erred by failing to
adequately respond to a question of law the jury raised during
deliberations. We agree.
During deliberations, the jury sent out a written note
which read as follows:
"Does a conspiracy have to be between
[OCF] and another company, or can a conspiracy
be within the same company ([OCF]) with the
company officers conspiring among themselves?
We are confused about the meaning of 'one
or more parties' in a conspiracy. Can this
mean [OCF] alone, or does it have to be [OCF]
and another company?" (Emphasis in original.)
The court asked OCF's counsel for a suggested response, and counsel
stated, in relevant part, as follows: "Well, I would suggest to
the [c]ourt that both questions would be easy to answer. The
answer is obviously, yes, it has to be between OCF and another
company as plead[ed]. You cannot conspire with yourself."
Plaintiffs' counsel objected to this suggestion and suggested
instead that the court respond that the instructions provided
contain the applicable law. After discussion with counsel, the
court responded with a note, stating "[t]he instructions which the
[c]ourt has provided contain the law applicable to these cases.
Please refer to your instructions."
In People v. Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994), the supreme court addressed a trial court's
response to a jury question and wrote the following:
"A trial court may exercise its discre-
tion and properly decline to answer a jury's
inquiries where the instructions are readily
understandable and sufficiently explain the
relevant law, where further instructions would
serve no useful purpose or would potentially
mislead the jury, when the jury's inquiry
involves a question of fact, or if the giving
of an answer would cause the court to express
an opinion which would likely direct a verdict
one way or another. [Citation.] However,
jurors are entitled to have their inquiries
answered. Thus, the general rule is that the
trial court has a duty to provide instruction
to the jury where it has posed an explicit
question or requested clarification on a point
of law arising from facts about which there is
doubt or confusion. [Citation.] This is true
even though the jury was properly instructed
originally. [Citation.] When a jury makes
explicit its difficulties, the court should
resolve them with specificity and accuracy
[citations]. *** The failure to answer or
the giving of a response which provides no
answer to the particular question of law posed
has been held to be prejudicial error."
The supreme court viewed the question the jury submitted
to the court in Childs as constituting "an explicit question which
manifested juror confusion on a substantive legal issue." Childs,
159 Ill. 2d at 229, 636 N.E.2d at 540. In our opinion, the
question asked here constituted the same thing. Although Childs
was a criminal case, we deem that distinction irrelevant and hold
that the supreme court's analysis in Childs applies fully to civil
cases as well.
The jurors here asked an explicit question: "Does a con-
spiracy have to be between [OCF] and another company, or can a con-
spiracy be within the same company ([OCF)] with the company
officers conspiring among themselves?" (Emphasis in original.)
This question is no less explicit than the question asked in
Childs, whether the defendant "could be found guilty of armed
robbery and either voluntary or involuntary manslaughter, or if a
finding of guilt of armed robbery mandated a 'guilty of murder'
verdict." Childs, 159 Ill. 2d at 229, 636 N.E.2d at 540.
The jurors in this case specifically expressed their con-
fusion regarding whether "one or more parties" in a conspiracy
could mean OCF alone. Plaintiffs point out the court had earlier
(and correctly) instructed the jury that--for a conspiracy to
exist--OCF had to agree with another company. Also, the issues in-
struction identified those other companies. However, as the court
in Childs wrote, "[W]hether the instructions were proper *** is not
the determinative inquiry. The issue is whether the instructions
were clearly understandable to the jury." Childs, 159 Ill. 2d at
231, 636 N.E.2d at 540.
Further, the jury's question here involved a substantive
legal issue--namely, the elements of a civil conspiracy. In Adcock
v. Brakegate, Ltd., 164 Ill. 2d 54, 62, 645 N.E.2d 888, 894 (1994),
the supreme court held that a civil conspiracy consists of a combi-
nation of two or more persons or entities for the purpose of
accomplishing by some concerted action either an unlawful purpose
or a lawful purpose by unlawful means. However, a civil conspira-
cy cannot exist between a corporation's own officers or employees.
See Salaymeh v. Interqual, Inc., 155 Ill. App. 3d 1040, 1044, 508 N.E.2d 1155, 1158 (1987); Bonanno v. La Salle & Bureau County R.R.
Co., 87 Ill. App. 3d 988, 995, 409 N.E.2d 481, 486 (1980).
Accordingly, because the jury's question here constituted "an
explicit question which manifested juror confusion on a substantive
legal issue," we hold that the trial court abused its discretion in
its response to the jury's written question--which was, in effect,
no response at all.
Additionally, in our opinion, the jury's question of law
concerned a potentially dispositive issue. Plaintiffs introduced
into evidence several internal memoranda between OCF personnel in
support of their claim that OCF conspired with other asbestos
companies. OCF argued at trial that a conspiracy cannot exist when
companies merely "acted similarly but independently of one another
without agreement" and insufficient evidence existed to show that
OCF had conspired with other asbestos companies. Thus, it was
critical to OCF's defense that the jury understand that a con-
spiracy could not exist among OCF's officers. Given the consid-
erable importance of this issue to OCF's defense, we conclude that
the trial court's error in responding to the jury's question caused
substantial prejudice to OCF and requires reversal.
In so concluding, we note that the better practice would
have been for OCF's counsel to have provided the trial court with
a written draft of the specific response counsel wanted the court
to give the jury, just as counsel provides a written proposed
instruction during the jury instruction conference. Supreme Court
Rule 239(c) requires parties to submit proposed jury instructions
in writing so that the record shows exactly the parties' respective
positions on how the jury should be instructed. 134 Ill. 2d R.
239(c). We should require nothing less when the jury raises a
question during deliberations, requiring the court to decide how to
respond to--that is, to instruct--the jury. Indeed, in the midst
of jury deliberations after a vigorously contested trial, a
question from the jury deserves as much--if not more--thoughtful
consideration as did the original instructions. Accordingly, we
hold that when jurors raise a question during deliberations,
counsel must submit--in writing--the specific response counsel
wants the court to give the jury. Because we are pronouncing a new
rule, we believe it is only equitable that we apply it prospective-
ly. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82,
86, 679 N.E.2d 1224, 1226 (1997) (the issuing court itself may
expressly state that its decision will be applied prospectively
only); see also Torres v. Walsh, 98 Ill. 2d 338, 353, 456 N.E.2d 601, 608 (1983). We also note that, in the present case, OCF's
counsel's failure to submit a written draft of OCF's proposed
specific response to the jury's question does not constitute waiver
because--in addition to the fact that, prior to this point, no case
law or rule existed so requiring--the record shows (1) the court
clearly understood OCF's suggestions; and (2) the jury's questions
were so well stated that an appropriate response to the jury's note
would have been the following:
"The court has received your note in which you
ask two questions: (1) [Jury's first ques-
tion]; and (2) [Jury's second question]. The
answer to your first question is 'the conspir-
acy has to be between OCF and another compa-
ny,' and the answer to your second question is
'"one or more parties" in a conspiracy means
OCF and another company.'"
IV. ISSUES ON REMAND
OCF raises several other issues likely to arise on
remand.
A. Late Entry by Coconspirator
OCF argues that even if sufficient evidence existed that
it ultimately joined the alleged conspiracy, OCF still may not be
held liable unless it joined before the acts which caused plain-
tiffs' injuries. OCF contends that a late-joining conspirator is
not liable for any acts committed by coconspirators before it joins
the conspiracy. In response, plaintiffs cite a statement appearing
in Illinois Law and Practice that "every conspirator is liable for
all of the acts of each of his co-conspirators done in furtherance
of the objects of the conspiracy committed before or after his
entry into the conspiracy." 11 Ill. L. & Prac. Conspiracy 16, at
150 (1981). We do not agree with either contention.
Although we believe it unfair to hold a late-joining
conspirator responsible for all prior acts of its coconspirators
simply because it ultimately joined the ongoing civil conspiracy,
it does not follow that a late-joining conspirator is never respon-
sible for prior acts of its coconspirators. In Page v. Keeves, 362 Ill. 64, 74, 199 N.E. 131, 135 (1935), the supreme court, consider-
ing a conspiracy to defraud an individual of her real estate, wrote
the following:
"Where one assists in the commission of a
wrongful act against another, or with knowl-
edge approves of it after it is done, if done
for his benefit, and he avails himself of the
fruits of such improper conduct, he is liable
in the same manner as if he himself had com-
mitted the same wrongful act." (Emphasis add-
ed.)
Further, we find instructive the decision in Havoco of America,
Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir. 1980), in which
the court wrote, "a co-conspirator who joins a conspiracy, with
knowledge of what has gone on before and with an intent to pursue
the same objectives" (emphasis added) may be held responsible for
the prior acts of its coconspirators.
Consistent with the views expressed in Page and Havoco,
we conclude that a party who, with knowledge and approval of the
prior acts of its coconspirators, joins a preexisting civil con-
spiracy--by satisfying the elements of civil conspiracy as set
forth in Adcock--is liable for those prior tortious acts of its
coconspirators.
This conclusion is not inconsistent with the supreme
court's decision in Adcock, which discussed the elements necessary
to state a cause of action for conspiracy and held, in relevant
part, as follows:
"Once a defendant knowingly agrees with an-
other to commit an unlawful act or a lawful
act in an unlawful manner, that defendant may
be held liable for any tortious act committed
in furtherance of the conspiracy, whether such
tortious act is intentional or negligent in
nature." Adcock, 164 Ill. 2d at 64, 645 N.E.2d at 894-95.
The supreme court in Adcock did not address whether a late-joining
conspirator may be liable for prior acts of its coconspirators.
In light of our conclusion that late-joining conspirators
are liable for prior tortious acts only when it is proved they knew
and approved of those prior acts, we hold that, on remand, to the
extent plaintiffs allege that OCF joined the conspiracy after acts
that caused Van Winkle's and Hicks' injuries, they must present
evidence that OCF knew and approved of the prior acts of the other
asbestos companies when it joined the conspiracy in order to prove
OCF is responsible for those prior acts. On appeal, plaintiffs
contend OCF joined the alleged conspiracy "at least by 1953." If
plaintiffs so allege on remand, they must provide evidence that OCF
knew and approved of the acts of the other asbestos companies
during the 1930s and 1940s in order for OCF to be liable.
We also note that if the trial court, on remand, (1)
finds sufficient evidence that OCF joined the conspiracy, but (2)
does not find sufficient evidence that OCF is responsible for the
acts of its coconspirators prior to OCF's entry into the conspira-
cy, then evidence of those prior acts is still admissible for the
limited purpose of showing the scope and nature of the conspiracy
OCF joined. Under these circumstances, however, the court must
instruct the jury that it may consider the "prior acts" evidence
only to show the scope and nature of the conspiracy and not as
showing that OCF is responsible for those prior acts.
Consistent with these views, we also hold that the trial
court erred by giving plaintiffs' tendered instruction, which read,
in relevant part: "[Instruction No. 31A:] *** Each conspirator
is liable for all of the acts of each conspirator done in further-
ance of the objects of the conspiracy committed before, or after,
its entry into the conspiracy." Absent plaintiffs' proving that
OCF knew and approved of its coconspirators' prior acts, this in-
struction did not accurately state the law.
B. Judicial Notice
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance Sheet
No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Nonpublishable material under Supreme Court Rule 23 omitted.
C. The Trial Court's Refusal To Allow Exhibits
To Go to the Jury
OCF next argues the trial court erred when it "changed
its mind about the admissibility" of three medical reports just
prior to closing arguments. In response, plaintiffs argue that the
court never reversed its ruling regarding the admissibility of the
reports, but exercised its discretion by refusing to allow the
exhibits to go to the jury during deliberations. We agree with
plaintiffs.
Section 2-1107 of the Code of Civil Procedure (Code)
provides that documents read or received into evidence "may be
taken by the jury to the jury room for use during the jury's
deliberation." (Emphasis added.) 735 ILCS 5/2-1107(d) (West
1994). The decision whether to send exhibits to the jury room is
within the trial court's sound discretion, and a reviewing court
will not disturb that decision absent an abuse of discretion that
prejudices a party. People v. Hudson, 157 Ill. 2d 401, 439, 626 N.E.2d 161, 177 (1993).
Here, the trial court admitted into evidence three of
OCF's exhibits: (1) a 1937 United States Public Health Service
report; (2) a 1938 United States Public Health Service report; and
(3) a 1955 article by a Saranac researcher. During the final jury
instruction conference, the court declined "to submit those three
documents to the jury." The record clearly shows the court did
not--as OCF contends--belatedly reverse its decision to admit the
exhibits. Instead, the court simply exercised its discretion by
refusing to send the documents to the jury room.
Thus, on remand, the trial court may, in its sound
discretion, decline to submit these exhibits to the jury. However,
the court should make clear to the parties that resolving what
exhibits will go to the jury during deliberations is not the same
as resolving what exhibits will be admitted into evidence. Just
because the court has admitted an exhibit does not necessarily mean
that it will go to the jury. The court should make clear that it
will decide that issue after the court has ruled on the admissibil-
ity of the exhibits in question and prior to closing arguments
(unless the court, in its discretion, makes that determination
earlier in the proceedings).
D. Form of OCF's Special Interrogatories
Nonpublishable material under Supreme Court Rule 23 omitted.
E. Nonpattern Instruction on Damages
OCF next argues that the trial court erred by giving
plaintiffs' tendered nonpattern instruction advising the jury
that all damages awarded to the Van Winkles would have to be
awarded to them in this action or not at all. We agree.
Plaintiffs Donald and Linda Van Winkle tendered the follow-
ing instruction, asserting it was supported by the supreme
court's holding in Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 657 N.E.2d 997 (1995):
"[Instruction No. 43:] If you find for the plaintiffs, Don and
Linda Van Winkle, on the question of liability, the damages which
you award in this case are all of the damages which they or Don
Van Winkle's survivors will be permitted to recover for the
injuries which he has sustained. Even if the plaintiff, Don Van
Winkle, dies from the injuries, the law precludes his survivors
from recovering any further damages."
In Varelis (167 Ill. 2d at 460, 657 N.E.2d at 1002), the supreme
court held that, under the Wrongful Death Act (Ill. Rev. Stat.
1987, ch. 70, pars. 1 through 2.2), an action for personal
injuries brought during a decedent's lifetime will preclude a
subsequent action for wrongful death premised on the same con-
duct. Although the statements tendered as instructions may be
literally true, nowhere in Varelis does the above language
appear. Further, Supreme Court Rule 239(a) provides that pattern
jury instructions should be used whenever they accurately state
the law applicable in a case. 134 Ill. 2d R. 239(a). A trial
court may give nonpattern jury instructions only when the pattern
jury instruction on point does not adequately state the law.
Swartz v. Sears, Roebuck & Co., 264 Ill. App. 3d 254, 266, 636 N.E.2d 642, 650 (1993).
The pattern instructions actually given accurately
stated the law governing damages awardable to Van Winkle if the
jury found OCF liable for his injuries. We conclude that
plaintiffs' nonpattern instruction No. 43 was unnecessary and
could be viewed as advising the jury to compensate Van Winkle for
both his lifetime damages and his wrongful death in the present
action (though this action did not seek compensation for Van
Winkle's wrongful death). Accordingly, we hold that the trial
court erred by giving this nonpattern instruction.
F. The Trial Court's Decision to Strike Mark Hicks'
Punitive Damages Request
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
G. Judgment N.O.V.
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23.
V. CONCLUSION
For the reasons stated, we reverse and remand for a new
trial consistent with the views expressed herein.
Reversed and remanded.
KNECHT, J., concurs.
McCULLOUGH, J., dissents.
JUSTICE McCULLOUGH, dissenting:
When a question comes from a deliberating jury, a trial
judge is faced with a dilemma. Almost any response not agreed to
by the litigants becomes fodder for an appeal. Any selective
reading or highlighting of certain instructions violates a command
contained in the instructions--do not single out an instruction.
Counsel may make tactical decisions in recommending the
choice of language of an instruction or which parts of a pattern
instruction should be given. They do so for the best interests of
their client. The cooperation that occurs is not altruistic, but
it is nonetheless cooperation. The goal is to come up with a
legally correct set of instructions to inform and guide the jury.
Courts of review frequently admonish appellants they cannot com-
plain about an instruction unless an alternative instruction was
offered. Holder v. Caselton, 275 Ill. App. 3d 950, 959, 657 N.E.2d 680, 688 (1995); Kochan v. Owens-Corning Fiberglass Corp., 242 Ill.
App. 3d 781, 800, 610 N.E.2d 683, 695 (1993).
When counsel and the trial judge confer on how to answer
a jury question, they are conducting a mini instruction conference.
In this case, OCF said both questions would be easy to answer yes.
Plaintiffs' counsel objected to this suggestion and suggested the
court respond that the instructions provided contain the applicable
law. Neither suggestion was of much assistance to the trial judge.
If the answer was so easy and obvious, OCF could have
proposed an instruction--i.e., a suggested response--in writing.
Neither at trial nor at oral argument on appeal did OCF's counsel
suggest precisely what the response should have been.
OCF complains on appeal about the court's response to the
jury questions. OCF provided no meaningful assistance to the trial
court in framing an appropriate response, nor did the plaintiffs.
However, it is OCF that contends it was disadvantaged when the
trial court replied with an accurate, often-used and standard
response.
Our supreme court has stated:
"[A] trial court may exercise its discretion
and properly decline to answer a jury's in-
quiries 'where the instructions are readily
understandable and sufficiently explain the
relevant law, where further instructions would
serve no useful purpose or would potentially
mislead the jury, when the jury's inquiry
involves a question of fact, or if the giving
of an answer would cause the court to express
an opinion which would likely direct a verdict
one way or another.' Childs, 159 Ill. 2d at
228[, 636 N.E.2d at 539]." People v. McDon-
ald, 168 Ill. 2d 420, 460, 660 N.E.2d 832,
849-50 (1995).
The instructions previously given by the trial court
correctly instructed the jury. The answer, given by the trial
court, after conference with counsel, was not error.
With respect to the remand issues, I do not believe
reversible error occurred and would affirm the judgment of the
trial court.
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