Ploense v. Electrolux Home Products, Inc.

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State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0894 Rel

Case Date: 12/28/2007

Preview:Filed 12/28/07

NO. 4-06-0894 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

CINDY PLOENSE, Individually and as Special Administrator of the Estate of Michael Ploense, Deceased, Plaintiff-Appellee, v. ELECTROLUX HOME PRODUCTS, INC., et al., Defendants, and THE CHROME COALITION, Defendant-Appellant.

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Appeal from Circuit Court of McLean County No. 05L202

Honorable James E. Souk, Judge Presiding.

PRESIDING JUSTICE APPLETON delivered the opinion of the court: In March, 2006, plaintiff, Cindy Ploense, as special administrator of the estate of Michael Ploense, deceased, sued the Chrome Coalition, along with other defendants, for participation in a civil conspiracy to suppress knowledge of the harmful health effects of chrome. The Chrome Coalition specially appeared and moved to dismiss the action against it for lack of personal jurisdiction. In September 2006, the circuit court denied the motion, and the Chrome Coalition petitioned to us for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(3) (210 Ill. 2d R. 306(a)(3)). We denied the petition. The Chrome Coalition then appealed to the supreme court, which, by supervisory order, directed us to grant the petition and to hear the appeal on its merits. Ploense v. Chrome Coalition, 223 Ill. 2d 684, 862 N.E.2d 1001 (2007)

(nonprecedential supervisory order on denial of petition for leave to appeal). We have done so. We conclude that the Chrome Coalition lacks the "minimum contacts" with Illinois necessary to justify the exercise of personal jurisdiction. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945). Therefore, we reverse the circuit court's judgment. I. BACKGROUND In count XVI of her amended complaint, plaintiff seeks damages for wrongful death from the Chrome Coalition and five other defendants: Occidental Chemical Corporation (Occidental); Metropolitan Life Insurance Company; PPG Industries, Inc. (PPG); Elementis Chromium G.P., Inc. (Elementis); and Honeywell International, Inc. (Honeywell). Therein, she refers to these six defendants as the "[c]onspirators." Plaintiff pleads the following facts. From 1973 to 1999 (except for periods when he was laid off), Michael Ploense was employed by a company called Eureka. He worked at Eureka's plant in Bloomington, Illinois, from 1973 to 1997 and at another Eureka plant in Normal, Illinois, from 1997 to 1999. Eureka assigned him to work "throughout the plants[,] including within or near the plating department in the Bloomington plant[,] from 1973 to 1984." During these years, Honeywell, PPG, Occidental, and Elementis (or their corporate predecessors) were in the business of manufacturing and distributing products containing chrome. The Chrome Coalition was an organization promoting the sale and use of products containing chrome. Exposure to chrome caused disease and

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death. Ploense "was exposed to chrome, including chrome from one or more of the conspirators, during his employment at Eureka," and, as a result, he contracted lung cancer and died. Before Ploense was exposed to chrome in the workplace, the conspirators knew that chrome caused serious disease and death. Ploense, however, lacked such knowledge, and the conspirators knew that workers like him, exposed to chrome in the course of their job duties, were ignorant of its hazardous properties. "Two or more of the [c]onspirators had employees who were exposed to *** chrome," and "[e]ach of the [c]onspirators knew that if it [had] adequately warned its own employees and others whose work brought them into contact with chrome, *** workers [would have left] those industries using chrome[,] *** there[by] reduc[ing] the sale and usage of chrome products." Plaintiff further alleges as follows: "20. The [c]onspirators knowingly conspired and agreed among themselves to, among other[] [things]: (a) assert that which was not true--that it was safe for people to be exposed to chrome and chrome[-]containing materials; [and] (b) suppress information about the harmful effects of chrome. 21. One or more of the [c]onspirators performed the following overt acts in furtherance of the conspiracy: (a) sold chrome products which were

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used at the [Bloomington and Normal plants] without warning of the hazards known to the conspirators, including sales by Occidental ***, Allied Chemical [Corporation (the predecessor of Honeywell),] and PPG *** to Eureka, from which Michael Ploense was exposed to chrome; (b) refused to warn its own employees about the hazards of chrome known to it; (c) suppressed the results of chrome studies conducted by the Industrial Hygiene Foundation [(IHF)] in the 1940s regarding the relationship between chrome and cancer; (d) agreed not to disclose the results of research on the effects of chrome upon health unless the results suited their interests; (e) through lobbying and other efforts, attempted to defeat measures by the federal government to regulate the amount of chrome permissible in the breathing zone of workers, suppressed the results of stud[ies] on the effects of chrome, including the [1956 to 1957] study by IHF, and agreed to the non-

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dissemination of information linking chrome to disease back to at least the 1940s[;] (f) exposed its own employees to chrome without warning of the hazards; (g) refused to warn its employees who were exposed to chrome-containing materials of the hazards of exposure to chrome known to the conspirators; and (h) misrepresented and suppressed the results of its studies finding a five[]fold increase in lung[-]cancer deaths from low[-]level exposure to chrome[,] from [the Occupational Safety and Health Administration] and other governmental bodies." Counts XVII and XVIII of the amended complaint make essentially the same allegations against the six defendants, but count XVII adds that Ploense "was ill from lung cancer for a period of time before his death," and count XVIII adds that Ploense was plaintiff's spouse and, because of his injury, plaintiff "suffered a loss of services and society and became obligated for the expense of the medical care and funeral costs for treatment and services provided to her spouse." In support of its motion for dismissal on the ground of lack of personal jurisdiction, the Chrome Coalition filed an affidavit by its chairman, Joel Barnhart. In

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his affidavit, he states as follows. The Chrome Coalition is not a resident of Illinois and has "never engaged in the design, manufacture, marketing, sale, or distribution of any products." Rather, it was founded in 1986 as a voluntary unincorporated trade association with a dual purpose: to "serve as an information clearinghouse that gathers and disseminates information, research, and studies relating to chrome; and to serve as a facilitator of chrome[-]industry comments and opinions concerning regulations affecting chrome." The Chrome Coalition has no employees and only two officers: Barnhart and a vice chairman, Russell J. Morgan. Its membership consists of "various segments of the chromium industry, including manufacturers and producers of chrome and chrome products, distributors of chrome products, users of chrome products, and other trade associations representing users of chrome products." Although its membership includes manufacturers and producers of chromium chemicals and other chromium products, "the Chrome Coalition itself has no financial investment in any of those manufacturers or producers and does not share in their profits." From 1986 to 2003, the Chrome Coalition's affairs were administered by the Industrial Health Foundation, which maintained an office in Pittsburgh, Pennsylvania. Currently, the Chrome Coalition has no physical office. Its affairs "are conducted at meetings held periodically by telephone or at locations where the Chrome Coalition's various members themselves are located. Past meetings of the Chrome Coalition's members have taken place in Pennsylvania, California, and the Washington, D.C.[,] area." Under the heading "The Chrome Coalition Has No Contacts With the State of Illinois," Barnhart's affidavit avers as follows:

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"12. The Chrome Coalition has never engaged in substantial business activities in the State of Illinois[] [and never] has otherwise established or sought to establish a presence in Illinois. 13. The Chrome Coalition has never been qualified or licensed to do business in Illinois; has never maintained or conducted business operations in Illinois; and has never operated, conducted, or engaged in or carried on a business or a business venture in Illinois. 14. The Chrome Coalition does not own, use, possess[,] or hold any mortgage or lien on any real property in Illinois. 15. The Chrome Coalition has no interest in any other property or asset in Illinois. The Chrome Coalition has no property at all, other than various records related to its existence and operations. 16. The Chrome Coalition does not maintain any offices, agencies, bank accounts, telephone lines or listings, post office boxes, mailing address, or other physical presence in Illinois. 17. The Chrome Coalition does not maintain an authorized agent for service of process in Illinois.

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18. The Chrome Coalition does not maintain employees or agents in Illinois. 19. The Chrome Coalition has never paid taxes to the State of Illinois. 20. The Chrome Coalition has never advertised in the State of Illinois. 21. The Chrome Coalition has never engaged in promotions in the State of Illinois. 22. The Chrome Coalition has never instituted a legal proceeding of any kind in Illinois. 23. To the best of my knowledge, the Chrome Coalition has never contracted in Illinois, and the Chrome Coalition has never contracted with any person or entity for goods or services in the State of Illinois. 24. The Chrome Coalition has never held a meeting in the State of Illinois. 25. No officer of the Chrome Coalition has ever traveled to Illinois for Chrome Coalition business purposes." II. ANALYSIS A. Our Standard of Review The circuit court denied the Chrome Coalition's motion for dismissal without holding an evidentiary hearing. We infer that the court found, in the amended

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complaint, a prima facie case of personal jurisdiction unrebutted by Barnhart's affidavit. Our standard of review is de novo, for when the circuit court hears no testimony and determines the jurisdictional issue solely on the basis of documents on file, it is in no better position than we are to assess credibility and weigh the evidence. TCA International, Inc. v. B & B Custom Auto, Inc., 299 Ill. App. 3d 522, 531, 701 N.E.2d 105, 112 (1998); Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520, 523, 695 N.E.2d 518, 521 (1998). B. Personal Jurisdiction Under the Illinois Long-Arm Statute Sections 2-209(a)(2) and (c) of the Code of Civil Procedure (Code) provide as follows: "(a) Any person, whether or not a citizen or resident of this [s]tate, who[,] in person or through an agent[,] does any of the acts hereinafter enumerated[] thereby submits such person *** to the jurisdiction of the courts of this [s]tate as to any cause of action arising from the doing of any of such acts: *** (2) The commission of a tortious act within this State[.] *** (c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution

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and the Constitution of the United States." 735 ILCS 5/2209(a)(2), (c) (West 2006). To find personal jurisdiction under section 2-209(a)(2), the court need not resolve, on the merits, the issue of whether the act was indeed "tortious" as the plaintiff alleges (thereby improperly merging the jurisdictional question with the merits); "'[i]f the defendant or its agent performs an act or omission which causes an injury in Illinois and the plaintiff alleges that the act or omission was tortious in nature, the jurisdictional requirement is satisfied.'" International Business Machines Corp. v. Morton Property & Casualty Insurance Agency, Inc., 281 Ill. App. 3d 854, 859, 666 N.E.2d 866, 869 (1996), quoting 3 R. Michael, Illinois Practice

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