Johnson v. Owens-Corning Fiberglas Corp.

599 N.E.2d 129, 233 Ill. App. 3d 425, 174 Ill. Dec. 583, 1992 Ill. App. LEXIS 1347
CourtAppellate Court of Illinois
DecidedAugust 27, 1992
Docket4-92-0175
StatusPublished
Cited by22 cases

This text of 599 N.E.2d 129 (Johnson v. Owens-Corning Fiberglas Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Owens-Corning Fiberglas Corp., 599 N.E.2d 129, 233 Ill. App. 3d 425, 174 Ill. Dec. 583, 1992 Ill. App. LEXIS 1347 (Ill. Ct. App. 1992).

Opinion

JUSTICE COOK

delivered the opinion of the court:

Owens-Corning Fiberglas Corporation (OCF or defendant) appeals the default judgment entered against it for noncompliance with a Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) notice, compelling it to produce its medical director and a member of its board of directors as witnesses at trial; the judgment entered against it; and the order denying its motion for post-trial relief. Defendant argues (1) the trial court lacked authority under Rule 237(b) to sanction it for failing to produce witnesses who are not individually subject to Illinois process; (2) the sanctions entered against it exceeded the permissible scope of Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)); and (3) the trial court erred in giving a negative inference instruction. We affirm.

On September 19, 1989, plaintiff, in her individual capacity and as special administrator of the estate of William Johnson, deceased, filed a 12-count complaint in the circuit court of McLean County against defendant OCF, and other defendants not parties to this appeal, seeking damages for injuries sustained due to the death of decedent. All defendants, except OCF, were dismissed as parties or default judgments were entered against them before trial. Counts V through XII of the complaint were directed at OCF. These counts alleged various theories of recovery including civil conspiracy (counts V and VI), murder (counts VII and X), intentional or fraudulent misrepresentation (counts VIII and XI), and battery (counts IX and XII). All counts, except count IX, were dismissed before trial.

Decedent was employed from 1951 to 1977 at the Bloomington, Illinois, plant of Unarco Industries, Inc., which OCF purchased in April 1970. Decedent died on November 27, 1987. The death certifícate indicated the cause of death was “chronic respiratory insufficiency,” “restrictive lung disease,” and “pulmonary asbestosis.” Decedent also suffered from “chronic renal failure,” a condition cited as contributing to his death but not related to the cause of death. An autopsy performed on decedent after the death certificate was signed disclosed decedent also had lung cancer.

The remaining count against defendant alleged that it committed a battery against decedent by intentionally causing his death by exposing him to asbestos. Plaintiff claimed decedent was exposed to asbestos while he worked at the plant and, as a result of his exposure, contracted asbestosis and lung cancer. She further averred that defendant knew exposure to asbestos caused asbestosis and malignancies, and it knew decedent would be exposed to asbestos and would die as a result. She also stated defendant’s purpose was to operate the plant using asbestos and asbestos products, and in doing so, defendant intended to cause great bodily harm to decedent. She contended defendant’s intentional conduct was the proximate cause of decedent’s death.

On October 15, 1991, plaintiff filed a request, pursuant to Rule 237(b) (134 Ill. 2d R. 237(b)), that defendant produce Dr. Jon Konzen, medical director of defendant; W.W. Boeschenstein, former chairman and chief executive officer of defendant and a current member of its board of directors; and various documents at trial. In response, Konzen and Boeschenstein filed a special and limited appearance and a motion for a protective order, contesting the court’s authority to assert personal jurisdiction over them and compel them to travel to Illinois to testify. Defendant concurrently filed a motion to quash plaintiff’s Rule 237(b) request insofar as it related to the production of Konzen and Boeschenstein at trial. It argued that plaintiff could not demonstrate good cause sufficient to justify the compelled appearance of these individuals, and the court lacked authority under the Illinois long-arm statute to compel them to appear. Defendant further argued that Rule 237(b) was unconstitutional on its face and as applied to Konzen and Boeschenstein because it violated due process in that it sought to compel the attendance of nonparty witnesses not subject to the jurisdiction of Illinois.

In response, plaintiff filed a motion to strike the special and limited appearance and motion for a protective order. The court subsequently struck the special and limited appearance and ordered defendant to produce the witnesses. The court agreed that it did not have the authority to compel them to come to Illinois to testify but that any “coercion” upon them to appear was the “economic coercion of [defendant]” and the desire to have their testimony heard in court. It further agreed due process applied to Rule 237(b), but determined no violation of due process occurred because the request was directed at defendant, over which the court had jurisdiction. The court also denied defendant’s motion to quash.

In light of these rulings, defendant sought leave to file an interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), which the circuit court denied. The defendant then moved to stay the proceedings pending the filing of a petition for leave to file a complaint for writ of mandamus for a supervisory order in the Illinois Supreme Court. The circuit court also denied this motion. On November 4, 1991, defendant filed with the Illinois Supreme Court a motion for leave to file a complaint for an order of mandamus or prohibition, or in the alternative, for a supervisory order and an emergency motion for stay of proceedings pending disposition of defendant’s motion. The supreme court denied defendant’s emergency motion on November 5, 1991. (Konzen v. Caisley (Nov. 5, 1991), No. 72780 (Clerk’s order).) The supreme court denied defendant’s other motion on December 11, 1991. Owens-Corning Fiberglas Corp. v. Caisley (Dec. 11, 1991), No. 72788 (Clerk’s order).

At the pretrial hearing on November 7, 1991, defendant moved the circuit court to stay the trial pending a hearing upon its petitions in the supreme court. The court denied the motion. Defense counsel then advised the court that Konzen and Boeschenstein would not be appearing. Plaintiff moved to strike defendant’s pleading and for entry of default judgment as a sanction for noncompliance with the Rule 237(b) notice, leaving only the issue of damages for the jury to determine. In support plaintiff stated that if Konzen were there he would testify, inter alia, that (1) he became medical director of defendant in 1968; (2) he was asked to evaluate the Bloomington plant before defendant purchased it regarding asbestos; (3) he made an investigation of the plant after it was purchased and from the inspection determined that the amount of airborne asbestos in the plant was unacceptable; (4) he hired an industrial engineer to study the plant, and the study stated that “ ‘[t]his plant [was] grossly deficient. The industrial hygiene is totally inadequate. The airborne asbestos levels are excessive and certain to cause disease’ ”; (5) he made numerous trips to the plant until 1972, when asbestos was no longer used as an ingredient in the plant’s processes; (6) he knew asbestos levels in the plant* would cause disease and that the workers did not know that the level of asbestos to which they were exposed would cause disease; (7) he evaluated the health of decedent, and the evaluation showed decedent had asbestosis; (8) he knew no one told decedent that defendant knew he had asbestosis; and (9) the asbestos to which defendant exposed decedent caused decedent’s lung cancer.

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Bluebook (online)
599 N.E.2d 129, 233 Ill. App. 3d 425, 174 Ill. Dec. 583, 1992 Ill. App. LEXIS 1347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-owens-corning-fiberglas-corp-illappct-1992.