Docket Nos. 86118, 86192 cons.–Agenda 17–May 1999.

DELORES McCLURE, Indiv. and as Special Adm’r of the Estate

of Robert McClure, Deceased, et al., Appellees, v. OWENS CORNING FIBERGLAS CORPORATION et al., Appellants.

	Opinion filed October 21, 1999.

	JUSTICE McMORROW delivered the opinion of the court:

	This case involves three actions by three different plaintiffs,

Lois Bicknell (Bicknell), Vernadine Thacker (Thacker), and

Delores McClure (McClure), against defendant Owens Corning

Fiberglas Corporation (Owens Corning). McClure also named

Owens-Illinois, Inc. (Owens-Illinois), as a defendant in her suit. All

three plaintiffs’ complaints were based on injuries allegedly

resulting from their husbands’ exposure to asbestos while

employed by the Union Asbestos and Rubber Company (Unarco)

at its Bloomington, Illinois, plant. Neither Unarco nor Johns-

Manville Corporation (Johns-Manville), a supplier of asbestos used

in the Bloomington plant, is named as a defendant in plaintiffs’

complaints. In addition, plaintiffs alleged no exposure to Owens

Corning or Owens-Illinois products and no employment

relationship between defendants and their husbands. Nevertheless,

plaintiffs claimed that defendants were responsible for the injuries

alleged in their complaints because defendants engaged in a civil

conspiracy with Unarco, Johns-Manville, and other companies to

suppress information concerning the harmful health effects of

asbestos exposure and to falsely represent that it was safe for

people to work in close proximity to asbestos-containing materials.

	At plaintiffs’ request, these three cases were consolidated for

trial before the circuit court of McLean County. After trial, the jury

returned verdicts in favor of Bicknell and Thacker against Owens

Corning. The jury also found in favor of McClure against both

Owens Corning and Owens-Illinois. The appellate court affirmed

the judgments entered on these verdicts. 298 Ill. App. 3d 591.

Owens-Illinois then filed a petition for leave to appeal the judgment

in the McClure case, and Owens Corning filed a petition for leave

to appeal the judgments in all three cases. This court granted

defendants’ petitions (177 Ill. 2d R. 315) and allowed plaintiffs’

motion to consolidate defendants’ appeals. In addition, we have permitted amicus curiae briefs to be filed by the Illinois Association of Defense Trial Counsel, the Product Liability

Advisory Council, Inc., and the Illinois Manufacturers’

Association. 155 Ill. 2d R. 345. We reverse on the basis that the

evidence was insufficient to show that either defendant engaged in

the alleged civil conspiracy with Unarco or Johns-Manville.

BACKGROUND

	In her complaint against Owens Corning and Owens-Illinois,1 Delores McClure, individually and as special administrator of the

estate of Robert McClure, alleged that her husband, Robert

McClure, worked in Unarco’s Bloomington plant during the period

1959-61. She asserted that, while her husband worked at the

Bloomington plant, he was exposed to asbestos, including asbestos

that Johns-Manville supplied to Unarco. According to McClure, as

a result of this exposure, her husband contracted asbestosis and

lung cancer, which caused his death.

	McClure asserted that defendants, Unarco, and Johns-Manville

knew of the health hazards associated with asbestos exposure and

had a duty to warn their employees of these hazards and to provide

a safe workplace. She further alleged that defendants conspired

with Unarco, Johns-Manville, and other companies to “positively

assert in a manner not warranted by the information possessed by

the conspirators, that *** it was safe for people to work with and

in close proximity to asbestos and asbestos containing materials”

and to “suppress information about the harmful effects of asbestos

*** causing asbestos workers to be and to remain ignorant of that

information.” In furtherance of this alleged conspiracy, the

conspirators, inter alia, sold asbestos without warning of its adverse health effects, refused to warn their own employees and

Robert McClure about these hazards, and altered and suppressed

published reports concerning these hazards. According to

McClure, these acts were proximate causes of Robert McClure’s injuries and death.

	Lois Bicknell’s complaint against Owens Corning (Owens-

Illinois was a defendant only in McClure’s complaint)2 contained essentially the same conspiracy allegations stated by McClure.

Bicknell alleged that, like Robert McClure, her husband, Hugh

Bicknell, worked in Unarco’s Bloomington plant, although his

period of employment was 1954 to 1955. According to Bicknell,

as a result of her husband’s exposure to asbestos while working in

the plant, he developed pulmonary fibrosis and lung cancer, which

resulted in his death. Also like McClure, Bicknell alleged that her

husband’s injuries and death were proximately caused by the acts

taken in furtherance of the alleged conspiracy.

	Vernadine Thacker’s complaint against Owens Corning3 also contained the same allegations of conspiracy as McClure’s

complaint. Unlike McClure’s and Bicknell’s complaints, however,

Thacker’s complaint was based on her own exposure to asbestos.

Thacker alleged that her husband, Charles Thacker, was employed

at Unarco’s Bloomington plant between 1952 and 1965. Thacker

asserted that she was exposed to asbestos fibers carried home from

the plant on her husband’s person and clothing. According to

Thacker, as a result of her exposure to these fibers, she developed

pulmonary fibrosis and lung cancer. Thacker claimed that the acts

taken in furtherance of the alleged conspiracy were a proximate

cause of her injuries.

	Prior to trial, the circuit court granted plaintiffs’ motions to

consolidate these three cases. It denied Owens-Illinois’ motion

requesting that it be tried separately from Owens Corning, although when evidence was admitted against only one of these

parties during trial, the circuit court gave the jury a limiting

instruction.

	The trial was divided into two phases. All issues except for

punitive damages were determined at the first phase. Defendants

argue that the verdicts against them at the first phase must be

overturned because there was insufficient evidence to support

plaintiffs’ conspiracy claims and because certain trial errors require

reversal. We agree with defendants that the verdicts finding them

liable for conspiracy cannot stand because the evidence does not

permit a conclusion that they agreed with Unarco or Johns-

Manville to conceal the health hazards of asbestos from employees.

The following is a description of the evidence relevant to our

disposition.

I. Medical and Scientific Literature

	As circumstantial evidence of defendants’ alleged knowledge of the health hazards of asbestos, plaintiffs presented evidence of

the information about these hazards contained in medical and

scientific publications during the relevant time periods. Prior to

1930, there were approximately 12 case reports linking asbestos

and disease in Britain, the United States, and Europe. In 1930, the

first epidemiological study relating asbestos exposure to disease

was published. This study, which was published in Britain and the

United States, showed that approximately 25% of the asbestos

industry workers studied had lung scarring and that the scarring

was more severe in individuals who worked in dustier areas and

had been exposed to asbestos for longer amounts of time. To

prevent such lung damage, the author recommended dust control,

respiratory protection, periodic health examinations of the workers,

and education of workers concerning the risks of asbestos.

	In 1938, a bulletin issued by the United States Public Health

Service reported the results of a study on asbestos textile

manufacturing employees. The study connected asbestosis, which

is irreversible lung scarring caused by asbestos fibers, to exposure

to asbestos dust in concentrations greater than five million particles

per cubic foot. The bulletin contained a recommendation that dust levels be kept below this threshold in order to prevent asbestosis.

	In the 1940s and 1950s, the five million particles per cubic

foot threshold limit value for asbestos was adopted by the

American Conference of Governmental and Industrial Hygienists

and by many states, including Ohio and New Jersey. In the 1950s,

however, the five million particles per cubic foot asbestos dust limit

was criticized in the medical and scientific literature because it was

designed only to prevent asbestosis and did not account for the

cancer risk associated with asbestos exposure. Nevertheless, the

threshold limit value for asbestos remained the same until 1969,

when it was lowered.

	Beginning in the 1930s, case reports linking asbestos to lung

cancer were published in the medical and scientific literature. In

1955, an epidemiological study involving asbestos and lung cancer

was published in the British Journal of Industrial Medicine. This

study found that asbestos manufacturing workers with asbestosis

had 10 times the rate of lung cancer as the general population. In

1960, an epidemiological study linking asbestos exposure to

mesothelioma, a cancer of the membrane surrounding the lungs,

was published in the British Journal of Industrial Medicine.

	In the 1960s, Dr. Irving Selikoff began a large scale

epidemiological study of asbestos and disease. Selikoff became one of the leading authorities on asbestos and disease. Throughout the

1960s , 1970s, and 1980s, Selikoff published the results of an

ongoing health survey of members of the International Association

of Heat and Frost Insulators and Asbestos Workers Union. In a

1964 article published in the Journal of the American Medical

Association, Selikoff stated that, although many researchers had

questioned the link between lung cancer and asbestosis, the results

of his study proved that there was a connection. He found that

asbestos exposure put insulation workers at greater risk for

diseases such as asbestosis, lung cancer, and mesothelioma. These

diseases were most apparent in workers with more than 20 years

since the date of their first exposure.

II. Efforts by Asbestos Product Manufacturers Other Than

Owens Corning and Owens-Illinois to Suppress Information

Concerning the Health Hazards of Asbestos

	As other circumstantial evidence of defendants’ involvement

in the alleged conspiracy, plaintiffs presented evidence intended to

demonstrate that defendants’ actions paralleled those of the other

alleged conspirators. Plaintiffs’ theory at trial was that parallel

conduct by the alleged conspirators demonstrated an agreement

among them to suppress and misrepresent the health hazards of

asbestos. The majority of the evidence at trial related to similarities

and differences in the activities of the alleged conspirators.

	For example, plaintiffs presented evidence that, at the same

time that information about the health hazards associated with

asbestos exposure was appearing in medical and scientific

publications, asbestos product manufacturers other than defendants

were causing published reports of such information to be

suppressed or altered. There was no evidence that defendants

participated in these particular activities. Instead, evidence of the

actions of these other companies was part of plaintiffs’ evidence of

alleged parallel conduct.

A. The Lanza Study

	There was evidence that attorneys for Johns-Manville and

Raybestos-Manhattan, another asbestos product manufacturer,

edited an article published in 1935 by Dr. Anthony Lanza, a

physician employed by Metropolitan Life Insurance Company.

Prior to publishing this article, which discussed the results of a

study of workers at plants where asbestos-containing products

were manufactured, Lanza permitted these attorneys to review the

article and incorporated the changes they suggested. These were

changes that were favorable to the asbestos-containing products

industry or consistent with its legal positions. According to

plaintiffs’ expert, Dr. Barry Castleman, the substance of these

changes was inconsistent with information contained in medical

and governmental literature at the time.

B. Asbestos Magazine

	Plaintiffs also presented evidence that, around the same time,

Raybestos-Manhattan and Johns-Manville prevented the

publication of information concerning the health hazards of

asbestos in Asbestos magazine, a monthly trade publication. In

September 1935, the editor of Asbestos magazine wrote Sumner

Simpson, the president of Raybestos-Manhattan, to ask whether

Simpson had any objections to the magazine publishing information

about asbestosis and efforts to control it. The editor observed:

“Always you have requested that for certain obvious reasons we

publish nothing, and, naturally your wishes have been respected.”

Simpson consulted with Vandiver Brown, an attorney for Johns-

Manville, about the editor’s request, and the two men agreed that

it would be better if nothing were said about asbestosis.

C. Results of the Saranac Laboratory Research

	Similarly, plaintiffs presented evidence that, due to the actions

of certain asbestos product manufacturers other than defendants,

information concerning the health hazards of asbestos exposure

was omitted from a 1951 article discussing the results of a study

conducted by the Saranac Laboratory. In 1936, a group of asbestos

product manufacturers agreed to sponsor research on the health

effects of asbestos dust. Members of this group included Johns-

Manville and Unarco but not defendants. In their agreement with

Saranac, the sponsoring companies required that the results of the

research remain their property, that they maintain control over the

disclosure of the results, and that any manuscript discussing the

results be submitted to them for approval prior to publication.

	Consistent with this agreement, Saranac submitted a

manuscript to the sponsoring companies. At a meeting, these

companies agreed that certain changes should be made to the

manuscript, and Saranac incorporated these changes. For example,

at the request of the sponsoring companies, references to cancer

and tumors were removed from the manuscript before publication.

The published article nevertheless stated that it is a “complete

survey” of the research and did not acknowledge the input of the

sponsoring companies.

III. Unarco’s and Johns-Manville’s Plant Operations

	Additional evidence relating to plaintiffs’ parallel-conduct

theory included testimony that Unarco and Johns-Manville failed

to warn their employees of the health hazards of asbestos exposure

and failed to protect their employees from these hazards.

Employees who worked in Unarco’s Bloomington plant during the

fifties and sixties testified that Unarco never told them or other

employees that breathing asbestos dust posed any health risks.

These employees also described conditions in the Bloomington

plant before Owens Corning purchased it from Unarco in 1970.

According to these employees, the plant used raw asbestos

supplied by Johns-Manville to make insulation and other products.

Dust from the plant operations was released into the air of the

plant. The dust in the air was visible and covered surfaces in the

plant. Ron Thacker, plaintiff Vernadine Thacker’s son, testified

that he worked with his father in the plant and, when they left the

plant, there was dust on their clothing and hair.

	These employees further testified that Bloomington plant

employees were not required to wear respirators. One employee

stated that he had a respirator, but employees did not use them

frequently because they had difficulty obtaining filters for the

respirators, and the filters needed to be changed every day. There

was some dust-collection equipment in the plant, but it did not

collect all of the dust because there was always dust in the air.

Unarco had no ventilation equipment and no industrial hygienist.

Unarco also did not require employees to get annual chest X rays.

According to the industrial hygiene survey Owens Corning

conducted during the summer after it purchased the Unarco plant, atmospheric conditions in the Bloomington plant were “unbelievably bad,” and exposures to asbestos were “excessive.”

	A Johns-Manville employee testified that, during the period

1946 to 1961, Johns-Manville did not give its employees warnings

about the health hazards of asbestos. Johns-Manville did require

employees to undergo periodic physical examinations, which

included a chest X ray. These X rays were read, however, by

Johns-Manville’s own doctors and treated as the property of the

company. It was Johns-Manville’s policy not to inform an

employee that his X ray showed asbestosis or another lung disease unless the disease became disabling. This policy did not change

until the early 1970s.

	IV. Evidence of Owens-Illinois’ Activities

	In an attempt to connect Owens-Illinois and Owens Corning

to Unarco and Johns-Manville, plaintiffs presented evidence

intended to show that defendants’ actions with respect to their own

production and distribution of asbestos-containing products were

similar to Unarco’s and Johns-Manville’s. The evidence relating to

defendants focused on their manufacture of “Kaylo,” a high-

temperature hydrous calcium silicate insulation.

	In 1948, Owens-Illinois began commercial production and

distribution of Kaylo. Kaylo included 15% to 22% asbestos. In

1953, Owens-Illinois and Owens Corning entered into an

agreement under which Owens-Illinois continued to manufacture

Kaylo, but Owens Corning assumed the responsibility for

distribution. In 1958, Owens-Illinois sold the Kaylo division to

Owens Corning. Owens Corning also purchased plants where

Owens-Illinois had manufactured Kaylo, including its plant in

Berlin, New Jersey. Although Owens Corning manufactured other

asbestos-containing products, Kaylo was the only asbestos-

containing product manufactured by Owens-Illinois. Beginning in

the late sixties, Owens Corning performed research to find a

substitute for the asbestos in Kaylo. A substitute was found in

1972, after which Owens Corning also did not manufacture

asbestos-containing Kaylo.

A. Knowledge and Communication of Health Hazards

	With respect to Owens-Illinois’ knowledge of the health

hazards associated with exposure to Kaylo, there was evidence

that, in 1943, Owens-Illinois hired Saranac Laboratory to

determine whether Kaylo presented an air hazard when mixed,

sawed, or applied. In its initial correspondence with Owens-Illinois,

Saranac expressed the desire to publish any results of this research,

but stated that “nothing [would] be published without [Owens-

Illinois’] authorization.”

	In 1946, Saranac reported to Owens-Illinois that, with respect to the Kaylo experiments, “no serious results [had] developed ***.

The dust alone [was] not causing anything suggestive of either

silicosis or asbestosis.” According to the preliminary report

Saranac provided in 1947, Kaylo dust was biologically inactive, did

not cause silicosis or asbestosis, and would probably be harmless

if inhaled in moderate amounts by humans over a long period of

time. Just one year later, however, in November 1948, Saranac

informed Owens-Illinois that further research had revealed that

Kaylo dust did in fact cause asbestosis. Saranac reported: “Kaylo

*** is capable of producing asbestosis and should be handled as a

hazardous industrial dust.”

	Saranac submitted the final report on the Kaylo research to

Owens-Illinois in February 1952. According to this final report,

Kaylo was capable of causing a “peribronchiolar fibrosis typical of

asbestosis,” as a result of which, “every precaution should be taken

to protect workers against inhaling the dust.” Saranac indicated

that it hoped to publish the results of the Kaylo research but that

it would omit references to Kaylo and Owens-Illinois from any

publication to protect the interests of the company. In addition,

Saranac told Owens-Illinois that it would submit a manuscript to

Owens-Illinois prior to publication and would welcome comments

by Owens-Illinois.

	Subsequent correspondence, however, indicates that, because

of management changes at Saranac, Owens-Illinois was never

given the opportunity to review the article discussing the results of

the Saranac research before this article was published. The article

contained no references to Kaylo or Owens-Illinois.

	In an effort to show that Owens-Illinois failed to share the

information it had about the health hazards of Kaylo with its

employees or consumers, plaintiffs presented evidence that Owens-

Illinois failed to place warning labels on Kaylo during the time it

manufactured this product. Plaintiffs also showed that, in 1952,

Owens-Illinois issued an advertising brochure in which it

represented that Kaylo was nontoxic. There was conflicting evidence at trial as to the meaning of “toxic” and the applicability

of this term to asbestos.

	In addition, plaintiffs presented the testimony of Jerry Helser,

who had worked for Owens Corning since 1961. Helser testified that, during the first few years of his employment at Owens

Corning, he worked with individuals who had previously worked

for Owens-Illinois at its Berlin plant and other locations. According

to Helser, none of these former Owens-Illinois employees told him

that the asbestos used in Kaylo caused lung scarring and cancer or

gave him any indication that Owens-Illinois had informed them of

these risks.

	Contrary to Helser’s testimony, a former Owens-Illinois

employee, Richard Grimmie, testified that Owens-Illinois

employees at the Berlin plant did receive warnings about the health

hazards associated with exposure to the asbestos in Kaylo dust.

Grimmie testified that he began working for Owens-Illinois in

1945. Grimmie stated that, before beginning work at the Berlin

plant, he received a physical examination. At the time of this

examination, he was told about asbestos and asbestosis and was

informed that respirators were required in certain areas of the plant

because of the silica and asbestos content of Kaylo.

	Grimmie testified that he informed job applicants about the

hazards of asbestos when he worked as personnel manager for

Owens-Illinois. He testified that he told applicants that respirators

were required in certain areas of the plant and that the plant

manufactured a product containing silica, which causes silicosis,

and asbestos, which causes asbestosis.

B.  Plant Conditions

	In addition to evidence of Owens-Illinois’ communications

concerning the health hazards of exposure to Kaylo dust, there was

evidence relating to the conditions of the plants where Kaylo was

manufactured. Grimmie testified that the Berlin plant employed a

very large, powerful, and well-maintained dust collector with inlets

near certain dusty plant operations, such as the saws used to shape

the finished Kaylo product. In addition to the dust collector,

Owens-Illinois had mechanical sweepers to vacuum dust from the

floors and, before the end of each shift, workers were given time

to clean their work areas.

	According to Grimmie, Owens-Illinois also had a respirator

program, under which employees were required to wear respirators in areas where dust could not be controlled. The plant nurse

administered the program. Respirators with clean filters were given

to workers by their supervisors at the beginning of each shift. At

the end of the shift, the respirators were returned to the nurse, who

would clean the filters. Workers often refused to wear their

respirators and were disciplined for these refusals. Grimmie

testified that Owens-Illinois also employed an industrial hygienist,

Willis Hazard, who would frequently take dust samples throughout

the plants.

	Grimmie further testified that Owens-Illinois required every

Owens-Illinois employee at the Berlin plant to have a

preemployment X ray and annual X rays thereafter. Grimmie was

aware of no asbestos-related disease showing on any employee’s

X ray during the time Owens-Illinois owned the Berlin plant.

Grimmie was also unaware of any asbestos-related workers’

compensation claim made during this time.

	In addition to Grimmie’s testimony, there was evidence of an

industrial hygiene survey taken at the Berlin plant a few days

before and a few days after ownership of the Berlin plant was

transferred from Owens-Illinois to Owens Corning in 1958.

Consistent with Grimmie’s testimony, the report noted that

employees working at certain operations were wearing respirators

and that exhaust systems were available at certain locations.

Nevertheless, the report stated that several air samples exceeded or

closely approached acceptable limits for asbestos dust. One sample

taken near a saw showed 91.8 million particles per cubic foot of

air. The report also suggested improvements to the plant’s exhaust

systems and respirator program.

V. Evidence of Owens Corning’s Activities

	Extensive evidence of Owens Corning’s activities with respect

to its own products and own employees was presented. Again, this

evidence was intended to support plaintiffs’ theory that similarities

in the activities of Owens Corning and the other alleged

conspirators demonstrated the alleged conspiracy.

A. Knowledge and Communication of Health Hazards

	To show that, like the other alleged conspirators, Owens

Corning was aware of the health hazards of asbestos and failed to

communicate information about these hazards to its employees,

plaintiffs relied on a 1942 internal memorandum. This

memorandum indicated that Owens Corning planned to gather

medical and scientific literature concerning asbestosis and use this

information as a “weapon-in-reserve” during negotiations with the

Asbestos Workers Union. The memorandum proposed that the

information on asbestosis be disclosed to union locals only if the

union leadership rejected the company’s offer. Other evidence

showed that, in 1956, Owens Corning received information from

Saranac Laboratory that asbestos had been “fairly well incriminated

as a carcinogen.”

	Plaintiffs presented other evidence intended to show that

Owens Corning made efforts to conceal the information it had

about the health risks related to asbestos. For example, according

to a sales brochure published by Owens Corning in 1956, Kaylo

was “[n]on-irritating to the skin and non-toxic.” In 1966, Owens

Corning placed a label on Kaylo cartons concerning its asbestos

content, but the label did not identify specific health hazards. The

label provided: “This product contains asbestos fiber. If dust is

created when this product is handled, avoid breathing the dust. If

adequate ventilation control is not possible, wear respirator

approved by U.S. Bureau of Mines.” In 1970, Owens Corning

changed the label on cartons of Kaylo. The new label read:

“Caution–Product contains asbestos fiber. Inhalation of dust in

excessive quantities over long periods of time may be harmful.

Avoid breathing dust. If adequate ventilation is not possible wear

respirators approved by the U.S. Bureau of Mines for

pneumoconiosis producing dust.”

	In addition to this evidence, plaintiffs relied on numerous

internal Owens Corning memoranda as evidence that Owens

Corning endeavored to conceal the health risks of asbestos. A 1966

internal memorandum contained a reminder regarding Owens

Corning’s “long-standing” policy that inquiries and complaints

concerning the health hazards of Owens Corning products should

be referred to certain corporate officers or the company’s legal department. A 1967 internal memorandum indicated that an Owens Corning employee had questioned plans to expand Kaylo

manufacturing given that “the Government will probably blow the

whistle relative to the use of asbestos in the not too distant future.”

	In a 1968 internal memorandum, the author recognized the

association between asbestos exposure and asbestosis, lung cancer,

and mesothelioma, but observed that Owens Corning’s position

had been to indicate that “all medical research to date indicates no

hazard to health.” Another internal memorandum from that same

year concerned the company’s participation in the Insulation

Industry Hygiene Council. According to this memorandum, “much

care and consideration went into developing the proposed draft for

the constitution by-laws of this organization *** [in order to] limit

the influence of Dr. Selikoff.” Selikoff was an authority on asbestos

and disease who had worked to publicize and protect workers from

the health hazards of asbestos. Similarly, internal correspondence

from 1970 indicates that Owens Corning was reluctant to

participate in an industrial hygiene course organized by Selikoff.

Owens Corning believed it would be unwise to attend the course

because, inter alia, it would give “tacit approval to Selikoff.”

	The evidence presented at trial indicates that Owens Corning

first began notifying employees of the health hazards associated

with asbestos exposure in the 1970s. Some employees received this

information in the early seventies. For example, internal Owens

Corning memoranda show that, at meetings in 1971, Berlin

employees were informed by their plant manager about the adverse

health effects of asbestos exposure. In addition, an employee in the

Bloomington plant testified that she first learned of these health

risks when Owens Corning sent her and certain other employees to

a meeting at Illinois State University in 1971.

	The evidence showed that Owens Corning did not inform

other employees of these health hazards until 1978. In April of that

year, United States Department of Health, Education, and Welfare

Secretary Joseph Califano issued a “broadly publicized statement

bringing attention to the possible increased risk of death from an

asbestos related disease many years after exposure had

terminated.” Califano suggested that exposed workers should stop

smoking cigarettes and receive a physical examination from a physician. Around the time of the Califano announcement, the

Surgeon General issued a “Physicians Advisory” concerning the

health effects of asbestos.

	Following the Califano announcement, Owens Corning

communicated these health hazards to all Bloomington plant

employees. Before that time, “no formal education programs

regarding asbestos hazards” had occurred at the Bloomington

plant. After the Califano announcement, Owens Corning also

notified former Bloomington plant employees of the diseases that

could be caused by asbestos exposure.

	There was also testimony, however, that not all Owens

Corning employees received information from their employer about

the health risks related to asbestos. According to Jerry Helser,

Owens Corning never informed him of these risks. Helser testified

that Owens Corning never told him that asbestos could cause asbestosis, lung cancer, or mesothelioma. He was never informed

that Kaylo dust was a hazardous industrial dust or that he should

wear a respirator to avoid inhaling Kaylo dust because the dust was

harmful.

B. Plant Conditions

	In addition to this evidence of Owens-Corning’s knowledge of

and failure to communicate the health hazards of asbestos, the

parties presented evidence of conditions at plants where Owens

Corning produced asbestos-containing products. In 1951, the

Saranac Laboratory conducted an industrial hygiene survey at

Owens-Illinois’ Sayreville, New Jersey, plant, at which Kaylo was

manufactured. The report concluded that “considerable attention

had been given in the plant to the control of dust.” Given that some

of the dust samples approached the “maximum allowable limits,”

however, the report recommended certain improvements to the

plant’s dust control measures.

	In 1961, only two of the dust samples taken during an

industrial hygiene survey of the Berlin plant exceeded the threshold

limit value of five million particles per cubic foot. Of these two

samples, one only slightly exceeded the limit and, with respect to

the other, “exposure was intermittent.” The survey report made no recommendations for improvements.

	Helser testified that, when he worked at the Berlin plant in the

sixties, the plant had a ventilation and dust-collection system,

which had intake vents at all the saws and sanders used to shape

the final product. Some dust, however, escaped the system. In

addition to the dust-collection system, the Berlin plant had a

respirator program under which respirators were required in certain

areas of the plant and a program under which employees received

annual physical examinations and X rays. Throughout his career at

Owens Corning, Helser received annual chest X rays.

	One Bloomington plant employee testified that, after the sale

of the Bloomington plant to Owens Corning in 1970, the plant continued to operate. Owens Corning installed dust-collection

equipment in the plant, which helped control the dust, but it took

approximately a year for this equipment to be installed. Owens

Corning asked employees to wear respirators, but did not make

this a requirement. It also held safety meetings with employees.

	According to a 1978 internal Owens Corning memorandum,

the Berlin plant was cleaned after asbestos production stopped

there in 1972, and air samples showed that the concentrations of

asbestos there were extremely low. Insulation containing asbestos

was produced at the Bloomington plant only 11⁄2 years after Owens

Corning purchased the plant. Nevertheless, the memorandum

acknowledged that “there were significant exposures” at both of

these plants and that cases of asbestosis had arisen in workers from

both plants.

VI. Evidence of Contacts Among Defendants and Other

Asbestos Product Manufacturers

	Although the majority of the evidence presented at trial

concerned the separate, but allegedly parallel, activities of

defendants and other asbestos-containing product manufacturers,

plaintiffs did present some evidence of contacts among these

companies. The evidence of contacts among the alleged

conspirators was also circumstantial.

A. Owens Corning’s Contacts With Owens-Illinois

	Plaintiffs presented the following evidence of a relationship

between Owens Corning and Owens-Illinois. Owens Corning was

formed in 1938 by Owens-Illinois and Corning Glass. In addition,

William Boeschenstein, Owens Corning’s chief executive officer,

testified that Owens-Illinois “owned a large part of Owens-

Corning,” although he did not indicate the time period of this

ownership.

	With respect to contacts between these companies, there was

evidence that, in 1941, an Owens Corning attorney returned two

published articles he had borrowed from Owens-Illinois’ industrial

hygienist. These articles concerned the health effects of asbestos

and dust-control methods in asbestos manufacturing plants.

	Evidence of other contacts between these companies included

Owens Corning’s agreement to distribute Kaylo in 1953 and to

later purchase the Kaylo division from Owens-Illinois in 1958. In

addition, the 1956 Owens Corning brochure advertising Kaylo as

nontoxic contained the information that Kaylo was manufactured

by Owens-Illinois and was a trademark of this company. Under the

distribution agreement, Owens Corning was required to use

Owens-Illinois’ trademark and trade name.

B. Labeling

	Plaintiffs’ evidence of contacts between Owens Corning and

Johns-Manville included a 1964 internal Owens Corning

memorandum. This memorandum indicated that Johns-Manville’s

medical director had informed Owens Corning that, in October of

that year, Johns-Manville planned to label shipping cartons of

asbestos-containing products with warnings of the “alleged hazards

of asbestos.” The author of the Owens Corning memorandum

observed:

			“It is obvious that these warning labels will have some

impact in the field and possibly upon Public Health and

other government officials.

			The question before us is whether or not Fiberglas

Kaylo should protect itself against more stringent and

punitive health laws and the possibility of third party actions by following the J-M lead.”

	A 1965 internal Owens Corning memorandum indicated that,

several months after receiving this information from Johns-

Manville, Owens Corning was still deciding whether to place

warning labels on its own asbestos-containing products. The author

of the 1965 memorandum recommended that Owens Corning

“continue to give serious consideration to the labeling of *** Kaylo

products in a manner similar to that currently being used by Johns-

Manville*** [because] the fact that Johns-Manville is labeling their

preformed products is in itself a pressure on the whole industry to

consider labeling.”

C. 	NIMA Pamphlet

	Plaintiffs also presented evidence that Owens Corning and

Johns-Manville employees were involved in the National Insulation

Manufacturers Association, Inc. (NIMA), a trade organization. In

1968, Owens Corning’s medical director joined this organization

as a representative for his company. There was also evidence that

another Owens Corning employee and a Johns-Manville employee

participated in drafting a pamphlet published by NIMA in 1969 or

1970.

	This pamphlet, entitled “Recommended Health Safety

Practices For Handling and Applying Thermal Insulation Products

Containing Asbestos,” did not identify the specific health hazards

involved with asbestos exposure, such as asbestosis, lung cancer,

or mesothelioma. Instead, the pamphlet stated generally that there

were certain health risks associated with asbestos insulation. For

example, the introduction provided:

			“The modern mass production of hundreds of natural

and synthetic materials, such as asbestos, has brought the

need to protect workers from certain health risks, known

or suspected.

* * *

			Based on the fact that all materials can be handled

safely, the National Insulation Manufacturers Association

recommends the following practices for handling and

applying Thermal Insulation Products containing asbestos and/or other potentially injurious material to protect the

worker.”

The recommendations contained in the pamphlet included taking

precautions to minimize dust, wearing United States Bureau of

Mines respirators, observing good housekeeping practices, and

using water to clean material.

D. Owens Corning’s Purchase of the Bloomington Plant

	Other evidence pertained to contacts between Owens Corning

and Unarco. As evidence of the alleged conspiracy between Owens

Corning and Unarco, plaintiffs rely on the indemnity clause in

Owens Corning’s 1970 agreement to purchase the Bloomington

plant from Unarco. Under this clause, Unarco agreed, inter alia, to indemnify Owens Corning for claims based on asbestosis or other

respiratory ailments resulting from employees’ exposure to Unarco

products prior to Owens Corning’s purchase of the plant. No

indemnification was to be provided for pending litigation.

E. 1978 Konzen Memorandum

	Other contacts between Owens Corning and the alleged

conspirators were evidenced by a 1978 internal memorandum

written by Dr. Jon Konzen, Owens Corning’s medical director. In

this memorandum, Konzen noted that the Califano announcement

had caused Owens Corning to review its handling of former

employees from the Berlin and Bloomington plants. He stated that,

as part of this review, Owens Corning had contacted other

companies who had similar operations, including “Johns-Manville,

CSG, GAF, Armstrong, Keene, Eagle-Picher, Pabco and O-I.”

	Konzen described the information obtained from these

companies with respect to their handling of asbestos-exposed

workers. Johns-Manville employees exposed to asbestos were

given educational material and presentations concerning the health

risks. At retirement, Johns-Manville informally offered employees

the opportunity to return for periodic physical examinations.

Owens-Illinois indicated that it did not plan to take any action with

respect to former Owens-Illinois employees who worked at the

Berlin plant. Other companies did not plan to offer examinations to employees or to educate them concerning the health risks of

asbestos.

	Konzen recommended in the memorandum that retirees and

former employees of Owens Corning be offered periodic physical

examinations. In addition, he suggested that this group of

individuals be notified by letter that they had been exposed to

asbestos, that the exposure might place them at a higher risk of

contracting an asbestos-related disease, that they should stop

smoking, and that they should schedule physical examinations by

their personal physicians.

F. 1979 Meeting

	In addition, plaintiffs presented evidence of defendants’

involvement in two meetings with other asbestos-containing

product manufacturing companies. One of these meetings was held

in 1979 following the Califano announcement. The chief officers of

asbestos-containing product manufacturers were invited to a

meeting at Johns-Manville offices to discuss the “Congressional,

media and regulatory forces being brought to bear [which] raise

serious questions as to the vi[a]bility of the industry.” Owens-

Corning and Unarco attended this meeting, but Owens-Illinois did

not.

G. 1983 Asbestos Claims Conference

	The other meeting was held in 1983 and was entitled the

“Asbestos Claims Conference.” Attendees included both

defendants, Johns-Manville, other former asbestos-containing

product manufacturers, and insurance companies. The agenda from the meeting indicated that among the topics discussed at the

meeting were bankruptcy proceedings, legislation, and strategies

for resolving asbestos litigation. Written material from the meeting

also listed common goals of asbestos product manufacturers as

establishing a “better, more equitable and efficient system to

resolve the asbestos litigation”; developing a consortium to provide

an umbrella of insurance; passing legislation to accomplish the

companies’ goals; and establishing a “representative industry

group” consisting of executives.

H. Castleman’s Opinion

	In addition to this evidence of contacts between defendants

and the other alleged conspirators, plaintiffs presented the opinion

of their expert witness, Dr. Barry Castleman, that defendants were

involved in a conspiracy with Johns-Manville, Unarco, and other

companies to suppress information about the adverse health effects

of asbestos exposure. Castleman testified that he holds a doctorate

in occupational and environmental health policy and has researched

and written extensively on the historical response of corporations

to the asbestos health hazard. Castleman opined that Owens-

Illinois’ and Owens Corning’s failure to educate workers and users

of the health hazards of asbestos was part of an “implicit

understanding among the companies that nobody would blow the

whistle on asbestos and they would avoid the problems of labor

unrest, strikes, other kinds of things.” He explained that there was

no formal agreement but that, based on the failure to disclose the

health risks of asbestos, he was “assuming” that there was an

understanding that “[n]obody would raise the health issue and

everybody would benefit thereby, at least in the short term

financially who were selling asbestos-containing products, like

Kaylo.” According to Castleman, the companies involved in the

alleged conspiracy included Johns-Manville, Raybestos-Manhattan,

Unarco, Owens Corning, and Owens-Illinois.

	Following the presentation of this evidence at trial, the jury

found in favor of Bicknell and Thacker against Owens Corning.

The jury awarded Bicknell $225,000 and awarded Thacker

$220,000 in damages. The jury also returned a verdict in favor of

McClure against both Owens Corning and Owens-Illinois. It

awarded McClure $400,000 in damages and determined that each

defendant was responsible for one half of these damages. At the

second phase of the trial, the jury rejected Thacker’s claim for

punitive damages. The second phase was limited to Thacker’s

claim against Owens Corning for punitive damages. The other two

plaintiffs did not make requests for punitive damages.

	The appellate court affirmed the judgments entered on these

verdicts. The appellate court rejected defendants’ argument that

the evidence was insufficient to prove them liable for civil

conspiracy. The appellate court held: “If evidence of parallel conduct is sufficiently persuasive we see no reason why a jury

could not rely upon it alone to find that a conspiracy existed.” 298

Ill. App. 3d at 598. Further, the appellate court found that, in

addition to parallel conduct, plaintiffs had shown “contacts”

between Owens Corning and other companies in the industry, as

well as “ties” between Owens Corning and Owens-Illinois. 298 Ill.

App. 3d at 598. According to the appellate court, this evidence

was sufficient to support the jury’s verdicts against defendants.

With respect to the trial errors asserted by defendants, the appellate

court held that there was no error or that any error was harmless.

298 Ill. App. 3d at 599-604. Both defendants filed petitions for

leave to appeal the appellate court’s decision. We granted each

petition and consolidated their appeals for review.

ANALYSIS

	In this court, both defendants argue that the circuit court erred

in denying their post-trial motions for judgments notwithstanding

the verdict or, in the alternative, new trials. According to

defendants, the jury verdicts against them must be overturned

because the evidence was insufficient to support the jury’s

determination that they participated in the alleged conspiracy. In

addition, defendants assert numerous trial errors, including (1) the

admission of extensive evidence under the co-conspirator

exception to the hearsay rule, (2) the admission of Castleman’s

opinion that defendants were involved in a conspiracy, (3) the

circuit court’s exclusion of the deposition testimony of Willis

Hazard, (4) the inclusion of facts not in the record and

inflammatory statements in plaintiffs’ closing argument; (5) error

and bias in the instructions the circuit court gave to the jury, and

(6) the circuit court’s refusal of instructions and special

interrogatories submitted by defendants. According to defendants,

these errors, individually and collectively, denied them a fair trial.

	We begin our review by addressing defendants’ argument that

the insufficiency of the evidence required that the circuit court

enter judgments notwithstanding the verdict in their favor or, in the

alternative, grant them new trials. The standards for granting each

of these two forms of relief differ. “Judgment notwithstanding the

verdict should not be entered unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors

the movant that no contrary verdict based on that evidence could

ever stand.” Holton v. Memorial Hospital, 176 Ill. 2d 95, 109 (1997); Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Judgment notwithstanding the verdict is not appropriate if

“reasonable minds might differ as to inferences or conclusions to

be drawn from the facts presented.” Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995). As this court stated in Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992):

			“A trial court cannot reweigh the evidence and set aside

a verdict merely because the jury could have drawn

different inferences or conclusions, or because the court

feels that other results are more reasonable. [Citations.]

Likewise, the appellate court should not usurp the

function of the jury and substitute its judgment on

questions of fact fairly submitted, tried, and determined

from the evidence which did not greatly preponderate

either way. [Citations.]” Maple, 151 Ill. 2d at 452-53.

We apply a de novo standard to our review of decisions on motions for judgments notwithstanding the verdict. See, e.g., Gaffney v. City of Chicago, 302 Ill. App. 3d 41, 48 (1998).

	By contrast, a circuit court will order a new trial if, after

weighing the evidence, the court determines that the verdict is

contrary to the manifest weight of the evidence. Maple, 151 Ill. 2d at 454. “ ‘A verdict is against the manifest weight of the evidence

where the opposite conclusion is clearly evident or where the

findings of the jury are unreasonable, arbitrary and not based upon

any of the evidence.’ ” Maple, 151 Ill. 2d at 454, quoting Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1089 (1990). A reviewing court will not reverse a circuit court’s decision with

respect to a motion for a new trial unless it finds that the circuit

court abused its discretion. Maple, 151 Ill. 2d at 455.

	In addition to these principles, our review of the circuit court’s

decision is governed by the elements of the cause of action alleged

by plaintiffs in their complaints. Plaintiffs allege no employment

relationship between their husbands and defendants, nor do they

allege that they or their husbands were exposed to defendants’

products. Plaintiffs base their claims against defendants exclusively on a theory of civil conspiracy. According to plaintiffs, defendants

are liable for the injuries alleged in their complaints because

defendants conspired with Unarco and Johns-Manville to suppress

information about the harmful effects of asbestos and to falsely

represent that it was safe to work with asbestos-containing

materials.

	Civil conspiracy is defined as “a combination of two or more

persons for the purpose of accomplishing by concerted action

either an unlawful purpose or a lawful purpose by unlawful

means.” Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23 (1998). In order to state a claim for civil conspiracy, a

plaintiff must allege an agreement and a tortious act committed in

furtherance of that agreement. Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62-64 (1994). The agreement is “a necessary and important”

element of this cause of action. Adcock, 164 Ill. 2d at 62. The civil conspiracy theory has the effect of extending liability for a tortious

act beyond the active tortfeasor to individuals who have not acted

but have only planned, assisted, or encouraged the act. Adcock, 164 Ill. 2d at 62-63.

	Civil conspiracy is an intentional tort and requires proof that

a defendant “knowingly and voluntarily participates in a common

scheme to commit an unlawful act or a lawful act in an unlawful

manner.” Adcock, 164 Ill. 2d at 64. Accidental, inadvertent, or negligent participation in a common scheme does not amount to

conspiracy. Adcock, 164 Ill. 2d at 64. Mere knowledge of the fraudulent or illegal actions of another is also not enough to show

a conspiracy. Tribune Co. v. Thompson, 342 Ill. 503, 530 (1930). Similarly, “[a] defendant who innocently performs an act which

happens to fortuitously further the tortious purpose of another is

not liable under the theory of civil conspiracy.” Adcock, 164 Ill. 2d at 64. However, “[a] defendant who understands the general

objectives of the conspiratorial scheme, accepts them, and agrees,

either explicitly or implicitly to do its part to further those

objectives *** is liable as a conspirator.” Adcock, 164 Ill. 2d at 54.

	A conspiracy is almost never susceptible to direct proof.

Walsh v. Fanslow, 123 Ill. App. 3d 417, 422 (1984). Usually, it must be established “from circumstantial evidence and inferences

drawn from evidence, coupled with common-sense knowledge of the behavior of persons in similar circumstances.” Adcock, 164 Ill. 2d at 66. If a civil conspiracy is shown by circumstantial evidence,

however, that evidence must be clear and convincing. E.g., Majewski v. Gallina, 17 Ill. 2d 92, 99 (1959); Tribune Co., 342 Ill. at 529; Bosak v. McDonough, 192 Ill. App. 3d 799, 804 (1989).

	In this case, defendants argue that the jury verdicts finding

them liable for civil conspiracy must be overturned because the

evidence showed no agreement between either of them and Unarco

or Johns-Manville to conceal or misrepresent information

concerning the health hazards of asbestos. They challenge the

appellate court’s ruling that evidence of similarities between

defendants’ conduct and the conduct of Unarco and Johns-

Manville was sufficient to establish the required agreement for civil

conspiracy. According to defendants, the evidence showed that

they acted unilaterally, and mere parallel conduct is never enough

to establish that there was an agreement for purposes of civil

conspiracy.

	In addition, defendants argue that the appellate court erred in

concluding that there was any evidence other than parallel conduct

that demonstrated an agreement between defendants and the

alleged conspirators. Defendants assert that any contacts they may

have had with each other failed to show their involvement in the

alleged conspiracy with Unarco or Johns-Manville. In addition,

defendants argue, the few contacts Owens Corning had with others

in the industry were for legitimate business reasons and not due to

the alleged conspiracy. Based on the lack of evidence of an

agreement, defendants contend that the jury verdicts cannot stand.

	Our review of the sufficiency of the evidence in this case,

therefore, involves a threshold legal question: whether parallel

conduct alone can suffice as proof of agreement for civil

conspiracy. Prior to the appellate court decision in this case, no

Illinois court had addressed this question. But see Smith v. Eli Lilly & Co., 173 Ill. App. 3d 1, 28-30 (1988) (holding that parallel activity by drug manufacturers in producing and marketing DES

does not establish civil conspiracy or concerted action), rev’d on other grounds, 137 Ill. 2d 222 (1990). This case, therefore, presents us with an issue of first impression. After reviewing

decisions on point from other jurisdictions, as well as related precedent in Illinois, we hold that parallel conduct may serve as

circumstantial evidence of a civil conspiracy among manufacturers

of the same or similar products but is insufficient proof, by itself,

of the agreement element of this tort.

	Our review of case law from other jurisdictions convinces us

that the overwhelming weight of authority has refused to accept

mere parallel action as proof of conspiracy. In the context of

federal antitrust litigation, it is well-settled that mere consciously

parallel behavior is insufficient to establish a conspiracy under the

Sherman Act (15 U.S.C. §1 (1994)). See, e.g., Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1242 (3d Cir. 1993); Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 50-51 (7th Cir. 1992); Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). According to these courts, conscious parallelism is circumstantial evidence of a

conspiracy, but additional evidence is required before the inference

of an agreement is permitted. Some federal courts have held that

“substantial additional evidence” is required. See Coleman v. Cannon Oil Co., 849 F. Supp. 1458, 1466 (M.D. Ala. 1993). Other courts have required only additional evidence that reasonably

tends to exclude the possibility that the defendants were acting

independently. See, e.g., Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1456 (11th Cir. 1991). Such additional evidence

includes evidence of “(1) actions contrary to the defendants’

economic interests, and (2) a motivation to enter into such an

agreement.” Petruzzi’s IGA, 998 F.2d at 1242. The reason federal courts require evidence in addition to mere parallel conduct before

imposing liability for conspiracy is to avoid inadvertent

condemnation of nonconspiratorial conduct. See Coleman, 849 F. Supp. at 1466. As the Coleman court explained, “The requirement is intended to help assure that there is a reasonable basis to

conclude that persons exchanged assurances of common action or

otherwise adopted a common plan, albeit not necessarily through

meetings, conversations, or exchanged documents.” Coleman, 849 F. Supp. at 1466. The federal court rule with respect to evidence

of parallel conduct has been adopted in one Illinois case involving

a claim under the Illinois Antitrust Act (740 ILCS 10/1 et seq. (West 1994)), which is based on the Sherman Act. See Trowbridge Farm Supply Co. v. W.R. Grace & Co., 82 Ill. App. 3d 1140 (1980) (finding the plaintiff’s evidence of parallel conduct

insufficient to establish a conspiracy to restrain trade).

	Similarly, in cases involving the tort of conspiracy, courts in other jurisdictions have held that proof of mere parallel conduct is

insufficient. See, e.g., In re Asbestos School Litigation, 46 F.3d 1284, 1292 (3d Cir. 1994); Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 280, 505 A.2d 973, 982 (1985); Collins v. Eli Lilly Co., 116 Wis. 2d 166, 188, 342 N.W.2d 37, 47-48 (1984). For example, in Collins v. Eli Lilly Co., the Wisconsin Supreme Court held that the plaintiff’s proof of parallel conduct was insufficient to

establish the defendants’ liability under a civil conspiracy theory.

The plaintiff had sued the defendants, who were manufacturers of

the drug diethylstilbestrol (DES), for injuries she allegedly suffered

as a result of her mother’s ingestion of this drug while pregnant.

According to the plaintiff, the defendant drug companies engaged

in a conspiracy to obtain FDA approval in 1941 and 1947, to

market DES as a treatment for pregnancy problems, and to

misrepresent that it was safe to use the drug for this purpose.

Collins, 116 Wis. 2d at 187, 342 N.W.2d at 47.

	The Collins court rejected the plaintiff’s conspiracy claim. According to the court:

		“[T]he drug companies apparently engaged in parallel

behavior in both 1941 and 1947, but parallel behavior

alone cannot prove agreement. There is no indication in

the record that the defendants either explicitly or tacitly

collaborated to gain FDA approval so that they could in

turn collaborate to misrepresent the safety and efficacy of

DES for use in preventing miscarriages.” Collins, 116 Wis. 2d at 188, 342 N.W.2d at 47-48.

The Collins court, therefore, held that the summary judgment entered in favor of the defendants was appropriate.

	Proof of parallel conduct was held insufficient in another DES

case involving a civil conspiracy claim. In Burnside v. Abbott Laboratories, the Pennsylvania Supreme Court held that the plaintiffs’ proof of parallel conduct was insufficient to hold the

defendant drug manufacturers liable for civil conspiracy. The plaintiffs alleged that each of the defendants marketed DES in a

generic form as a miscarriage preventative; that they knew or

should have known that it was potentially carcinogenic; that they

failed to test the drug for carcinogenic or teratogenic effects; and

that they marketed it without warnings. Burnside, 351 Pa. Super. at 280, 505 A.2d at 981-82.

	The Burnside court held that these allegations of parallel conduct were insufficient to withstand the defendants’ motion for

summary judgment. The court explained:

			“[P]laintiffs in the instant case have failed to allege the

manner in which a conspiratorial scheme was devised and

carried out. The complaint contains no averments of

meetings, conferences, telephone calls, joint filings,

cooperation, consolidation, or joint licensing. The

plaintiffs have alleged no more than a contemporaneous

and negligent failure to act. This was insufficient to state

either a conspiratorial agreement or the requisite intent to

cause injury.” Burnside, 351 Pa. Super. at 280, 505 A.2d at 982.

For these reasons, the court found that the trial court had properly

granted summary judgment in favor of the defendants on this claim.

	Similarly, In re Asbestos School Litigation, the United States Court of Appeals for the Third Circuit held that a former

manufacturer of asbestos-containing products could not be held

liable under a civil conspiracy theory based on conscious parallel

activity with other asbestos manufacturers. The evidence of parallel

conduct presented in that case was as follows: (1) the defendant

began to sell Kilnoise, an asbestos-containing product, in 1964

without warnings; (2) in 1965, the defendant learned of the

connection Dr. Selikoff had made between asbestos and cancer; (3)

thereafter the defendant continued to sell Kilnoise; (4) the

defendant and other asbestos-containing product manufacturers

sold their products without warning despite knowledge of the

dangers of these products; and (5) the defendant and other

asbestos-containing product manufacturers were aware that each

was selling these products without warnings. In re Asbestos School Litigation, 46 F.3d at 1291. Although the court found that these actions indicated that the defendant and the other manufacturers engaged in parallel courses of conduct, it held that “conscious

parallelism is not sufficient to establish *** a civil conspiracy.” In re Asbestos School Litigation, 46 F.3d at 1292.

	In cases involving claims of concerted action, a tort very

similar to civil conspiracy,4 evidence of parallel conduct has also been deemed insufficient by courts in other jurisdictions. See, e.g., Payton v. Abbott Labs, 512 F. Supp. 1031, 1037 (D. Mass. 1981); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1016 (D.S.C. 1981); Ford Motor Co. v. Wood, 119 Md. App. 1, 36, 703 A.2d 1315, 1332 (1998); Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 296, 591 N.E.2d 222, 224-25, 582 N.Y.S.2d 373, 375-76

(1992); Martin v. Abbott Laboratories, 102 Wash. 2d 581, 599, 689 P.2d 368, 379 (1984). In one of these cases, Rastelli, the Court of Appeals of New York held that the manufacturer of a

multipiece tire rim could not be held liable under a concert of

action theory for injuries caused by a rim manufactured by another

company. The plaintiff had alleged that the defendant and other

manufacturers had lobbied OSHA to make employers rather than

manufacturers responsible for safe truck maintenance; had chosen

not to issue warnings; had prevented a ban of the multipiece rims;

and had refused to voluntarily recall the rim that injured the

plaintiff’s decedent. Rastelli, 79 N.Y.2d at 296, 591 N.E.2d at 224, 582 N.Y.S.2d at 375.

	According to the Rastelli court, these allegations were insufficient to support the plaintiff’s claim of concerted action. The

court stated that the plaintiff had showed parallel activity by the

manufacturers, but parallel activity by companies developing and

marketing the same product is insufficient, in itself, to show an

agreement under a concerted action theory. Rastelli, 79 N.Y.2d at 296, 591 N.E.2d at 224-25, 582 N.Y.S.2d at 375-76. The Rastelli court noted that it had refused to accept mere parallel activity as

proof of concerted action because, to do so, would “expand the

concept of concerted action beyond a rational or fair limit.” The Rastelli court explained that “because application of concerted action renders each manufacturer jointly liable for all damages

stemming from any defective product of an entire industry, parallel

activity by manufacturers is not sufficient justification for making

one manufacturer responsible for the liability caused by the product

of another manufacturer.” Rastelli, 79 N.Y.2d at 295-96, 591 N.E.2d at 224, 582 N.Y.S.2d at 375.

	Like these other courts, we find that requiring more than proof

of mere parallel conduct in civil conspiracy cases involving

manufacturers of the same or similar products is necessary to make

certain that there is a reasonable basis for inferring an agreement

and to minimize the risk that liability will be imposed based on

nonconspiratorial conduct. Our conclusion that parallel conduct

alone is insufficient to establish civil conspiracy in such cases finds

support in the clear and convincing standard of proof that applies

to the elements of that tort when the evidence is circumstantial, as

it is in the case before us. See, e.g., Bosak, 192 Ill. App. 3d at 804 (noting the standard of proof for civil conspiracy). Under this clear

and convincing standard, “if the facts and circumstances relied

upon are as consistent with innocence as with guilt it is the duty of

the court to find that the conspiracy has not been proved.” Tribune Co., 342 Ill. at 529; see also Regan v. Garfield Ridge Trust & Savings Bank, 220 Ill. App. 3d 1078, 1091-92 (1991); ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc., 90 Ill. App. 3d 817, 830 (1980). As defendants and the amici argue, there are many potential innocent explanations for parallel conduct by

competitors. These include encountering the same business

problems, the same consumer demands, and the same competitive

pressures. As defendants observe, “[b]asic economic principles

dictate that competitive companies will often act in a highly similar

manner.” See also, e.g., Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 606, 607 P.2d 924, 933, 163 Cal. Rptr. 132, 141 (1980) (it is

a common practice in the industry for manufacturers to use the

experience and methods of others making the same or similar

products). Parallel conduct alone by manufacturers of the same or

similar products is, therefore, as consistent with innocence as with

guilt and cannot be considered, in itself, clear and convincing

evidence of a conspiracy.

	 Not only does our rejection of mere parallel conduct as proof

of civil conspiracy comport with the clear and convincing standard

of proof Illinois courts have applied to this tort, it is consistent with

this court’s previous descriptions of the scope of a manufacturer’s

liability. In rejecting the market share theory of product liability in Smith v. Eli Lilly & Co., 137 Ill. 2d 222 (1990), this court reasoned that imposing liability under this theory violated the

principles that manufacturers are not “insurers of their industry”

and that “ ‘a logical limit must be placed on the scope of a

manufacturer’s liability.’ ” Smith, 137 Ill. 2d at 266-67, quoting Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 37 (1980) (requiring plaintiffs to prove that a defendant knew of or should have known

of the danger in order to establish strict product liability for failure

to warn).

	Requiring proof of more than parallel action to establish civil

conspiracy liability is necessary to protect manufacturers from

becoming insurers of their industry. This case illustrates the

potential for industrywide liability under the civil conspiracy

theory. Plaintiffs were allegedly injured as a result of the actions

and products of defendants’ competitors. Defendants have been

found liable for the injuries plaintiffs allege in their complaints even

though it is undisputed that neither plaintiffs nor their husbands

were employed by defendants, worked at the Unarco plant after

Owens Corning purchased it, or used defendants’ products. To

permit conspiracy liability based on proof of parallel action alone,

when competitors engage in similar conduct for many

nonconspiratorial reasons, would expand the civil conspiracy

theory “beyond a rational or fair limit” (Rastelli, 79 N.Y.2d at 295, 591 N.E.2d at 224, 582 N.Y.S.2d at 375). Requiring evidence in

addition to parallel conduct ensures that a manufacturer’s

responsibility for the actions of a competitor is based on more than

speculation and conjecture. Accordingly, we hold that, while mere

parallel conduct may 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.

	Having decided that parallel action alone will not support

liability under the civil conspiracy theory in cases such as the one before us, our review of the evidence becomes a two-step process.

First, we must examine whether there is evidence to support a

finding by the jury that defendants and the alleged conspirators

engaged in parallel conduct. Next, we must determine whether any

evidence, other than evidence of parallel conduct, was presented at

trial and whether this evidence, considered with any evidence of

parallel conduct, was sufficient to establish the existence of an

agreement between defendants and Unarco or Johns-Manville to

suppress or misrepresent information regarding the health hazards

of asbestos.

	Plaintiffs presented no direct evidence of an agreement.

Instead, they relied entirely on circumstantial evidence to prove the

alleged agreement. The majority of this evidence related to

plaintiffs’ theory that parallel conduct by these companies

demonstrated such an agreement. The evidence showed that, in the

1930s, 1940s, and 1950s, there were numerous reports in the

medical and scientific literature linking asbestos exposure to

asbestosis and cancer. Despite this information, defendants,

Unarco, and Johns-Manville produced and sold asbestos-containing

products during this time period. Before 1964, none of these

companies placed warnings on their asbestos-containing products.

Johns-Manville was the first to place a warning label on its

products in 1964. In 1966, Owens Corning also added warning

labels to its asbestos-containing products. These warnings did not,

however, identify the specific diseases caused by asbestos

exposure.

	There was evidence that Unarco and Johns-Manville prevented

information about the health hazards of asbestos from being

published. At their request, Asbestos magazine refrained from

publishing articles on this topic. In addition, these companies

required Saranac Laboratory to omit references to cancer and

tumors from the 1951 article it published concerning the results of

asbestos research sponsored by Unarco, Johns-Manville, and other

asbestos product manufacturers.

	While Owens-Illinois did not interfere with Saranac’s

publication of the results of the asbestos research Owens-Illinois

sponsored, there was evidence that, like Unarco and Johns-

Manville, Owens-Illinois caused inaccurate information about the health hazards of its asbestos-containing product to be published.

Despite knowledge that Kaylo dust caused asbestosis, in 1952

Owens-Illinois published a brochure stating that Kaylo was “non-

toxic.”

	Other evidence indicated that, like Unarco and Johns-Manville,

Owens Corning failed to share information about the health

hazards of asbestos with the public. In the 1950s, Owens Corning

also published a brochure representing Kaylo as “non-toxic.”

Internal company memoranda showed that (1) Owens Corning

chose to use information on the health hazards of asbestos as a

“weapon-in-reserve” during union negotiations rather than freely

disclose this information; (2) the company had a policy that

required complaints about health hazards of its products to be

referred to certain corporate officers or its legal department; (3)

the company was concerned that the government would “blow the

whistle” on asbestos; (4) despite knowledge of the health hazards

of asbestos, the company maintained a position that the medical

research indicated no such hazards; and (5) the company tried to

limit the influence of Dr. Selikoff, who had publicized and

attempted to protect workers from the hazards of asbestos

exposure.

	There was also evidence that defendants, Unarco, and Johns-

Manville failed to warn their employees of, and adequately protect

them from, the health hazards of asbestos. Former Unarco

employees who worked in the Bloomington plant testified that

Unarco failed to warn them of these hazards, did not have a

respirator program, had almost no dust-collection equipment,

permitted plant conditions that were “unbelievably bad,” employed

no industrial hygienist, and had no annual X -ray program for

employees. Likewise, a former Johns-Manville employee testified

that this company also did not tell employees of the adverse health

effects of asbestos exposure and, although periodic X rays were

required, Johns-Manville did not tell employees of disease that

appeared on the X rays unless the disease became disabling.

	Owens Corning employees testified that, like Unarco and

Johns-Manville, Owens Corning failed to warn its employees of the

health hazards of asbestos. Some employees testified that Owens

Corning did not warn them of these hazards until the 1970s. Another employee, Jerry Helser, testified that he was never warned

of the hazards.

	There was conflicting testimony with respect to Owens-

Illinois’ efforts to warn its employees of the dangers of asbestos.

Helser testified that former Owens-Illinois employees with whom

he had contact did not communicate any such warnings to him. By

contrast, Richard Grimmie testified that Owens-Illinois did warn its

employees that asbestos exposure could cause asbestosis.

	While there was evidence that the conditions and dust-control

measures in Owens Corning’s and Owens-Illinois’ plants were

better than those in Unarco’s Bloomington plant, there was also

evidence that, like Unarco, these companies did not adequately

control the dust in their plants. Some dust samples taken in these

plants exceeded the threshold limit value for asbestos. After

purchasing the Bloomington plant, Owens Corning did not install

dust collection equipment immediately and did not require

employees to wear respirators. In addition, by 1972, many

employees from the Berlin plant had been diagnosed with

asbestosis.

	Defendants dispute that the evidence showed that their

conduct paralleled that of Unarco or Johns-Manville. For example,

they assert, there was evidence that the warnings they gave their

employees, the conditions in their plants, and their industrial

hygiene programs were better than those of Unarco and Johns-

Manville. In reviewing a motion for judgment notwithstanding the

verdict, however, a court may not resolve conflicts in the evidence,

and the evidence must be considered in the light most favorable to

the nonmoving party. See Maple, 151 Ill. 2d at 452-53. Accordingly, we find that the jury could have found parallel action

based on the evidence that, like Unarco or Johns-Manville,

defendants (1) knew that asbestos could cause disease at the time

they sold asbestos-containing products; (2) sold these products

without warning of these diseases; (3) failed to warn employees

and consumers of these diseases; and (4) failed to adequately

protect their employees from exposure to asbestos dust.

	As stated previously, however, evidence of parallel conduct

alone is insufficient to establish a civil conspiracy by clear and

convincing evidence. Thus, we move to the second step of our review of the evidence. Under this step, we determine whether

there was any evidence of agreement other than parallel conduct

and whether this additional evidence, when considered along with

the evidence of parallel conduct, permitted the jury to conclude

that there was clear and convincing evidence of an agreement.

	In addition to parallel conduct, plaintiffs rely on the following

evidence as proof of an agreement between defendants and Unarco

or Johns-Manville to suppress or misrepresent information

concerning the health hazards of asbestos: (1) evidence of the

relationship between Owens Corning and Owens-Illinois; (2) the

fact that Owens Corning received information from Johns-Manville

about its plan to place warning labels on its products; (3) Owens

Corning’s participation in the drafting of the NIMA pamphlet; (4)

the indemnity clause contained in Owens Corning’s agreement to

purchase the Bloomington plant from Unarco; (5) the fact that

Owens Corning contacted other asbestos product manufacturers

about their responses to the Califano announcement; (6) the 1979

meeting among asbestos-containing product manufacturers; (7) the

1983 meeting among asbestos-containing product manufacturers;

and (8) Castleman’s opinion that defendants were involved in the

alleged conspiracy with Unarco and Johns-Manville.

	Even reviewing this evidence in the light most favorable to

plaintiffs, we find that it does not permit a reasonable inference of

the alleged agreement between defendants and Unarco or Johns-

Manville. At most, these facts are as consistent with innocent as

with guilty conduct. Thus, they do not support a finding by the jury

that there was clear and convincing evidence of an agreement. See Tribune Co., 342 Ill. at 529; Regan, 220 Ill. App. 3d at 1091-92.  	Much of plaintiffs’ additional evidence of the alleged

agreement between defendants and Unarco or Johns-Manville

demonstrated only a sharing of information among these

companies. Plaintiff showed that Owens-Illinois lent Owens

Corning two published articles about the health effects of asbestos,

that Owens Corning received information from Johns-Manville

about its labeling decision, that Owens Corning sought information

from other asbestos product manufacturers about their responses

to the Califano announcement, and that asbestos product

manufacturers held meetings in 1979 and 1983 to discuss litigation strategy, bankruptcy, insurance, and the impact of the Califano

announcement. The mere exchange of information by

manufacturers of the same or similar products is a common

practice, however, and does not support an inference of an

agreement. See Payton, 512 F. Supp. at 1038 (membership in industrywide trade organizations and participation in scientific

conferences are common in most industries and do not support an

inference of agreement); Sindell, 26 Cal. 3d at 606, 607 P.2d at 933, 163 Cal. Rptr. at 141 (it is a common practice in industry for

manufacturers of the same or similar products to use the

experience and methods of others).

	Indeed, an inference of agreement based on these exchanges

of information is undermined by the circumstances surrounding this

conduct. For example, plaintiffs assert that the existence of the

alleged agreement is the reason Johns-Manville would have shared

information about its labeling decision with Owens Corning. The

evidence that Johns-Manville was among the first to place a

warning label on its product, however, suggests an innocent

explanation for its communication of this decision to its

competitors. If Johns-Manville were alone in placing warning labels

on its products, consumers might perceive that its products were

more dangerous than its competitors’ and choose to buy a

competitor’s product. If it persuaded its competitors, such as

Owens-Corning, to also place warning labels on their products,

Johns-Manville could avoid this problem. Given this

nonconspiratorial explanation for Johns-Manville’s communication

of its labeling decision, this fact fails to support a finding of

conspiracy.

	In addition, evidence that asbestos product manufacturers

acted differently with respect to the shared information also

prohibits an inference of agreement. Despite the fact that Owens

Corning learned that Johns-Manville was placing warning labels on

its products in 1964, Owens Corning did not add warning labels to

its products until 1966, and internal memoranda indicated that the

company decided to add these labels only after considering whether

to do so would be in its own best interest. Likewise, the evidence

that Owens Corning contacted other asbestos product

manufacturers about their responses to the Califano announcement also showed that Owens Corning acted independently. The actions

it decided to take differed from those of Johns-Manville and the

other companies it consulted.

	The circumstances of the 1979 and 1983 meetings also

prohibit a reasonable inference of the alleged agreement. As a

preliminary matter, we note that Owens-Illinois did not attend the

1979 meeting. In addition, both meetings occurred after the

Califano announcement, which publicized the health hazards of

asbestos, and after Owens Corning itself had warned a large

number of its employees and former employees about these

hazards. Given that these disclosures had already occurred at the

time of the meetings, it is highly unlikely that the purpose of the

meetings was to suppress information about the health hazards of

asbestos. Suppression of such information at that point would have

been futile, as well as contrary to Owens Corning’s efforts to

inform employees about the health risks of asbestos. Evidence that

Owens Corning and Owens-Illinois met with other asbestos

product manufacturers in 1979 and 1983 cannot, therefore, support

a reasonable inference of the alleged agreement.

	Evidence of Owens Corning’s participation in the drafting of

the NIMA pamphlet and the indemnity clause in its agreement to

purchase the Unarco plant also does not support an inference of

agreement. According to plaintiffs, the fact that an Owens Corning

and a Johns-Manville employee were involved in drafting the

NIMA pamphlet shows an agreement by these companies to

conceal the health hazards of asbestos because, even though the

pamphlet did state that asbestos was potentially injurious and had

been associated with certain health hazards, it did not specifically

identify the diseases associated with asbestos. The evidence does

not support this inference. In other cases involving allegations of

a civil conspiracy among manufacturers, courts have been unwilling

to infer an agreement based on membership in industry trade

organizations. See, e.g., In re Asbestos School Litigation, 46 F.3d at 1287-90; Payton, 512 F. Supp. at 1038. In this case, inference of an agreement is improper because, even though Owens Corning

and Johns-Manville employees may have participated in drafting

the pamphlet, there is no evidence indicating to what extent these

companies controlled the content of the pamphlet. To conclude that the content of the pamphlet demonstrates an agreement

between these companies, therefore, is unreasonable.

	Likewise, no rational inference of agreement can be made

based on the indemnity clause contained in Owens Corning’s

agreement with Unarco to purchase the Bloomington plant.

Plaintiff asserts that the fact that this indemnity clause discussed

asbestos claims by employees is proof of an agreement by Owens

Corning and Unarco to suppress or misrepresent information about

the harmful effects of asbestos. To the contrary, the language of

the clause itself demonstrates a legitimate reason for the discussion

of asbestos claims: litigation concerning asbestos exposure of the

Bloomington plant employees had already begun at the time of

Owens Corning’s purchase of the plant. The clause does nothing

more than identify each parties’ responsibilities with respect to that

litigation, such as their obligations to pay judgments and to share

relevant documents. There is no evidence that Owens Corning’s

purchase of the Bloomington plant was anything other than an

arm’s-length transaction between competitors (see Payton, 512 F. Supp. at 1038 (such transactions do not permit an inference of

conspiracy)).

	As proof of the alleged agreement, plaintiffs also presented

evidence pertaining to the relationship between Owens Corning

and Owens-Illinois. This evidence is only tangentially related to the

essential question in this case, which is whether plaintiffs proved

the existence of an agreement between defendants and Unarco or

Johns-Manville. Proof of a relationship between defendants themselves does not establish the required agreement with Unarco or Johns-Manville.

	Castleman’s opinion that defendants were involved in the

alleged conspiracy with Unarco and Johns-Manville to suppress

information regarding the health hazards of asbestos also did not

permit the jury to conclude that an agreement existed. Castleman

testified that he “assumed” that there was an agreement among

these companies because none of them disclosed the health risks of

asbestos. An expert’s opinion is only as valid as the bases and

reasons for that opinion. State Bank v. City of Chicago, 287 Ill. App. 3d 904, 918 (1997). Castleman’s “assumption,” therefore,

cannot be considered proof of conspiracy, especially when this assumption is based on mere parallel conduct, which we have

explained is insufficient to establish a conspiracy. Even assuming

the jury found Castleman credible and accepted his opinion, his

testimony that defendants participated in the alleged conspiracy

does not support the jury’s verdict. See, e.g., Kleiss v. Cassida, 297 Ill. App. 3d 165, 174 (1998) (affirming judgment

notwithstanding the verdict after concluding that the plaintiff’s

expert’s opinions were conclusory and unsupported); Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 975- 76 (1997) (same).

	Although the scope of our review of jury verdicts is limited,

we find that the evidence in this case so overwhelmingly favors

defendants that judgment notwithstanding the verdict should have

been granted. Plaintiffs’ evidence of parallel conduct is insufficient

to establish the agreement required by the civil conspiracy theory.

When plaintiffs’ evidence of contacts between defendants and

Unarco or Johns-Manville is added to this parallel conduct, the

evidence still cannot support the jury’s determination that plaintiffs

proved agreement by clear and convincing evidence. The contacts

between defendants, Unarco, and Johns-Manville were isolated,

particularly with respect to Owens-Illinois, and an inference of

agreement based on these contacts is not reasonable. Even when

considered in the light most favorable to plaintiffs, evidence of

these contacts was as consistent with innocence as with guilt. See Tribune Co., 342 Ill. at 529; Bosak, 192 Ill. App. 3d at 804. Plaintiffs showed separate acts by the alleged conspirators, but the

evidence failed to show that these acts were connected by an

agreement. See Bergeson v. Mullinix, 399 Ill. 470, 475 (1948) (finding that evidence of the separate acts of the alleged

conspirators was insufficient to establish a conspiracy when the

evidence showed no “connection or confederation” between them).

To conclude, based on the evidence of record, that defendants

engaged in a conspiracy requires speculation. Liability based on

such speculation is contrary to tort principles in Illinois (see Smith, 137 Ill. 2d at 254, 259) and to the clear and convincing standard of

proof applicable in civil conspiracy cases. Given the lack of

evidence supporting this agreement element of plaintiffs’

conspiracy claims, the jury verdicts cannot stand, and judgment must be granted in favor of defendants.

	In defense of the jury verdicts in this case, plaintiffs rely on our recent decision in Adcock v. Brakegate, Ltd., 164 Ill. 2d 54 (1994). While the facts involved in that case are similar to those before us,

our holding in Adcock does not support a conclusion that the evidence of conspiracy is sufficient in this case. In Adcock, the executor of the estate of a deceased Unarco Bloomington plant

employee filed suit against Owens Corning and other asbestos-

containing product manufacturers. The plaintiff alleged that the

decedent worked in the Bloomington plant from 1954 until the end

of 1970. According to the plaintiff, the decedent was exposed to

asbestos in the plant, as a result of which he developed asbestosis

and mesothelioma, which resulted in his death. As in the cases

before us, the Adcock plaintiff alleged that Owens Corning was liable for the decedent’s injuries based on a civil conspiracy theory.

The plaintiff claimed that Owens Corning conspired with other

asbestos manufacturers to suppress information about the hazards

of asbestos and to falsely assert that it was safe to work with

asbestos. Adcock, 164 Ill. 2d at 57.

	After the circuit court denied Owens Corning’s motion to

dismiss the complaint for failure to state a cause of action, Owens

Corning answered the complaint. As a sanction for Owens

Corning’s failure to produce certain witnesses, the circuit court

entered judgment against Owens Corning as to liability. There was

a trial on damages only. Adcock, 164 Ill. 2d at 58-60.

	On appeal before this court, Owens Corning argued only that

the circuit court erred in denying its motion to dismiss. Owens

Corning contended that civil conspiracy is not actionable without

underlying, intentional conduct. Adcock, 164 Ill. 2d at 60. In rejecting this argument, we explained that Owens Corning’s answer

to the complaint waived any objection to the sufficiency of the

allegations, provided that the complaint stated a recognized cause

of action. After finding that civil conspiracy, based on either

intentional or negligent tortious conduct, is a recognized cause of

action, we held that Owens Corning was precluded from

challenging the factual sufficiency of the complaint. We refused to

express any opinion on the factual sufficiency of the complaint.

Adcock, 164 Ill. 2d at 65-66.

	Our holding in Adcock, therefore, does not support plaintiffs’ position that the evidence was sufficient in this case. Although the

facts involved in Adcock were similar to those at issue in this case, Adcock was decided on the pleadings. There was no trial with respect to Owens Corning’s liability, and this court did not address

the sufficiency of the evidence supporting the plaintiff’s conspiracy

allegations in that case. By contrast, the sufficiency of the evidence

is the determinative issue in this case.

	Given our decision in this case that judgment notwithstanding

the verdict should have been granted based on the insufficiency of

the evidence, we need not consider defendants’ request for a new

trial based on the insufficiency of the evidence or the remaining

arguments defendants raise in their briefs. In connection with their

argument that the circuit court erred in excluding the testimony of

Willis Hazard, Owens-Illinois filed a motion in this court to

supplement the record with a transcript of that testimony. We took

that motion with the case. We now deny Owens-Illinois’ motion to

supplement the record because it involves an issue that is not

relevant to our disposition of defendants’ appeal.

CONCLUSION

	For the foregoing reasons, we hold that the judgment of the

circuit court against Owens Corning and Owens-Illinois must be

reversed and order that judgment be entered in defendants’ favor

in each plaintiff’s case.

Judgments reversed.

	JUSTICE HARRISON, dissenting:

	In nullifying the jury’s verdict and entering judgment for

defendants, the majority refers to “the lack of evidence supporting

th[e] agreement element of plaintiffs’ conspiracy claims” (slip op.

at 39) and opines that “the evidence *** cannot support the jury’s

determination that plaintiffs proved agreement by clear and

convincing evidence” (slip op. at 39). These statements reflect two

basic flaws in my colleagues’ analysis. First, the majority fails to

adhere to the applicable standards for entry of judgment n.o.v. Under established law, which the majority correctly cites, then

forgets, judgment n.o.v. may not be granted merely because a verdict is not supported by the evidence. If the verdict is contrary

to the manifest weight of the evidence, the proper remedy is to

order a new trial. A judgment n.o.v. should be entered only in those limited cases where all of the evidence, when viewed in its aspect

most favorable to the opponent, so overwhelmingly favors movant

that no contrary verdict based on that evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992).

	The second problem with the majority’s analysis is that it

places undue emphasis on the existence of an agreement between

the conspirators. Under Illinois law,

			“[c]ivil conspiracy consists of a combination of two or

more persons for the purpose of accomplishing by some

concerted action either an unlawful purpose or a lawful

purpose by unlawful means. [Citation.] The function of a

conspiracy claim is to extend liability in tort beyond the

active wrongdoer to those who have merely planned,

assisted or encouraged the wrongdoer’s acts.” Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994).

Although an agreement is a necessary and important element of a

civil conspiracy claim, “it does not assume the same importance as

in a criminal action. *** [T]he gist of a conspiracy claim is not the

agreement itself, but the tortious acts performed in furtherance of

the agreement.” Adcock, 164 Ill. 2d at 62-63.

	The existence of a conspiracy can rarely be established through

direct evidence. Instead, it must be proven through circumstantial

evidence and inferences drawn from evidence, coupled with

commonsense knowledge of the behavior of persons in similar

circumstances. Adcock, 164 Ill. 2d at 66. Sometimes evidence of parallel conduct will suffice. As the appellate court correctly noted

in this case, if evidence of parallel conduct is sufficiently

persuasive, there is no reason why a jury could not rely upon it to

find that a conspiracy existed. 298 Ill. App. 3d at 598.

	In rejecting this view, the majority argues that there can be

“many potential innocent explanations for parallel conduct by

competitors” and that “[p]arallel conduct alone by manufacturers of the same or similar products is *** as consistent with innocence

as with guilt.” (Slip op. at 7 2, 730.) While this assertion may be valid in

the context of antitrust litigation, it makes no sense at all in cases

such as this. The reason it makes no sense is that there is no

possible innocent justification for what the defendants and the

other manufacturers were shown to have done. See Burgess v. Abex Corp., 305 Ill. App. 3d 859 (1999). In the words of the appellate court, “[c]oncealing the dangers of asbestos does not

carry with it any beneficial aspects.” 298 Ill. App. 3d at 597.

	Further confusing the majority’s analysis is its contention that

rejection of parallel conduct as proof of civil conspiracy comports

with the clear and convincing standard of proof required in Illinois

for civil conspiracy. It is true that proof of civil conspiracy must be

clear and convincing. As I have previously noted, however, and as

our court has long recognized (see, e.g., Tribune Co. v. Thompson, 342 Ill. 503, 529 (1930)), the clear and convincing standard can be

met solely through the use of circumstantial evidence. Because

proof of conspiracy can be totally circumstantial, and because

parallel conduct can be circumstantial evidence of a civil

conspiracy, as even the majority itself acknowledges, there is no

reason why a civil conspiracy cannot be established, in an

appropriate case, based on the parallel conduct of the defendants,

coupled with the jurors’ “commonsense knowledge of the behavior

of persons in similar circumstances” (Adcock, 164 Ill. 2d at 66, citing Majewski v. Gallina, 17 Ill. 2d 92, 99 (1959)).

	Even if I could look beyond these problems, I still would not

agree with the majority’s decision. A defendant is liable as a

conspirator where he understands the general objectives of the

conspiratorial scheme, accepts them, and agrees, either explicitly

or implicitly, to do his part to further those objectives. Adcock, 164 Ill. 2d at 64. Based on the same evidence reviewed by the majority

in its disposition, a different jury might possibly have found that

Owens Corning and Owens-Illinois did not meet these criteria.

What some other jury might have done, however, is irrelevant.

What matters is twhat this jury did. This jury assessed the evidence,

rejected defendants’ rationalizations for their behavior, and decided

that defendants should be held liable as conspirators. It is not the

province of our court to now reweigh the evidence and substitute its judgment for the jury’s, even if it would have reached a contrary

conclusion. If there is any evidence, together with reasonable

inferences to be drawn therefrom, demonstrating a substantial

factual dispute, or where the assessment of credibility of the

witnesses or the determination regarding conflicting evidence is

decisive to the outcome, the court has no right to enter judgment n.o.v. Maple, 151 Ill. 2d at 453. The circuit and appellate courts applied this principle correctly, and their judgments should not be

disturbed.

	For the foregoing reasons, I respectfully dissent.