# Kemner v. Monsanto Co. > Appellate Court of Illinois · July 22, 1991 · 217 Ill. App. 3d 188 URL: https://www.frixlaw.com/law-library/cases/9518666 ## Case - **Full name:** FRANCES E. KEMNER Et Al., and All Other Cases Consolidated With Cause No. 80-L-970, Plaintiffs-Appellees, v. MONSANTO COMPANY, Defendant-Appellant (Bruce D. Ryder, Appellant; St. Clair County, Appellee) - **Court:** Appellate Court of Illinois - **Decided:** July 22, 1991 - **Citations:** 217 Ill. App. 3d 188; 160 Ill. Dec. 192; 576 N.E.2d 1146; 1991 Ill. App. LEXIS 1278 - **Precedential status:** Published - **Opinion:** Concurring in part by Barry - **Judges:** Lewis, Green, Barry - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9518666 ## Opinion text JUSTICE BARRY, concurring in part and dissenting in part: I cannot subscribe to what I deem to be an illogical approach by my colleagues to reach a desired policy result. The main opinion, with only a belated allusion to Pedrick, reverses outright, delivering the crowning blow to SVz years of tireless, dedicated work by the trial judge, court personnel, and the jurors who heard a truckload of evidence, deliberated for eight weeks, and then rendered verdicts which were confirmed in post-trial procedures. The main opinion alludes to the quantity of evidence (some 91,555 pages of transcribed proceedings and 6,333 exhibits) and then dismisses it all, ostensibly because “the jury determined that no personal injury occurred, and no appeal was taken thereon.” (217 Ill. App. 3d at 194-95.) I don’t doubt but that the jurors on reading this opinion will be sorely surprised, perhaps even appalled, to learn what they “determined.” It may well be true that the evidence presented in this trial, the longest running civil trial in the history of American jurisprudence, is unmanageable for purposes of our review, but a jury heard it all and so did a trial judge. I think we must consider that evidence and determine if in fact “all of the evidence, when viewed in its aspect most favorable to [the plaintiffs], so overwhelmingly favors [Monsanto] that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.) This my colleagues have failed to do under the guise of unprecedented and, by my view, convoluted “legal” rationale, i.e., the jury found $0 noneconomic damages, ergo the jury found no “actual damages,” ergo the jury found “no injury,” and that finding is inviolable (this being implicit in the main opinion); thus, judgment belongs to the defendant. It is axiomatic that the jury’s verdict, even reduced to ink and paper, is not “evidence” as contemplated by Pedrick. Moreover, none of the precedent cited in the main opinion stands for disregarding the Pedrick standard when reviewing motions for judgment n.o.v. My colleagues have gathered their impressions of the jury’s findings from entries on an itemized verdict form and then, drawing from inapposite case law, rationalize their rejection of the verdicts “as a matter of law.” The majority’s approach violates a cardinal rule of appellate review that we “are not in the business of second-guessing a jury’s ‘clear intent.’ ” (People v. Spears (1986), 112 Ill. 2d 396, 409 , 493 N.E.2d 1030, 1035 .) In this case, the jury by its verdicts found: (1) that plaintiffs proved defendant’s liability for wilful/wanton misconduct; (2) that plaintiffs established their entitlement to nominal compensatory damages; and (3) that defendants should be punished for their misconduct. I would attach no significance to the fact that the jurors awarded their $1 nominal damages in the space prelabelled “economic” on the itemized verdict form rather than in the “noneconomic” space. I believe it significant that the same position being espoused by the main opinion here was summarily rejected by the court in Harriss v. Elliott (1991), 207 Ill. App. 3d 384, 387 , 565 N.E.2d 1041, 1043 . In Harriss, as here, the jury entered “$0” in the spaces for noneconomic damages. In the space designated for “the reasonable expense of necessary medical care, treatment and services received” — -i.e., economic damages — the jury entered “$140.75.” In the space for “punitive damages,” the jury entered “$5,000.” Judgment was entered accordingly. Defendant on appeal argued, as here, that plaintiff was entitled to no award because he suffered “no injury.” The court disagreed, holding simply: “[P]laintiff did receive compensation for ‘reasonable’ and ‘necessary’ medical expenses. There is nothing in the record before us to contradict this finding by the jury, and we must presume the award had a sufficient factual basis. Foutch [v. O’Bryant (1984), 99 Ill. 2d 389 ,] 392, 459 N.E.2d 958 .” 207 Ill. App. 3d at 387 , 565 N.E.2d at 1043 . In like manner, the court in Perry v. Storzbach (1990), 206 Ill. App. 3d 1065, 1069-70 , 565 N.E.2d 211, 214 , approved a jury’s verdict awarding $0 for pain and suffering and $35,000 for “the disability resulting from the injury.” On appeal, defendant challenged the verdict as inconsistent. The court, after reviewing relevant precedent and the evidence presented to the jury, disagreed, stating: “Absent some indication that the jury failed to follow some rule of law, considered some erroneous evidence, or an indication in the record that the verdict was the obvious result of passion or prejudice, we cannot upset that verdict. (Rozner v. Chicago Transit Authority (1989), 183 Ill. App. 3d 613 , 539 N.E.2d 270 .) [Plaintiff’s] evidence indicated [plaintiff] suffered both a disability as a result of the accident and pain and suffering. Yet, [plaintiff] offered no evidence of her medical expenses. Conversely, defendants’ evidence indicated that [plaintiff] was treated for similar pain and suffering prior to the accident in question. It is obvious that the jury concluded that [plaintiff] suffered a disability as a result of the accident for which they assessed damages at $35,000. It is also obvious that the jury concluded that [plaintiff] failed to prove that the pain and suffering she experienced or was certain to be experienced [sic] was caused by the September 25, 1984, accident. The evidence supports this conclusion of the jury, and we cannot conclude that the verdict is inconsistent, unsupported by the evidence or a result of passion or prejudice. Accordingly, we affirm the decision of the trial court.” Cases cited by the Perry court as authority for approving personal injury awards for economic damages only were Griffin v. Rogers (1988), 177 Ill. App. 3d 690 , 532 N.E.2d 591 (court on review approved $365 and $110 awarded for medical expenses and wages, respectively, and $0 for pain and suffering), and Meyers v. Louthan (1983), 114 Ill. App. 3d 770 , 449 N.E.2d 904 (reversing trial court’s award of new trial based on jury verdict awarding plaintiff compensation for emergency room bills and nothing for pain and suffering). In my opinion, the modern cases rejecting the defendant’s position — i.e., equating $0 noneconomic damages with “no injury” — are the better reasoned. Just as the courts in the aforecited cases found evidentiary support for the jury awards, I find ample support here. Also, I take issue with my colleagues’ bald assertion that the damages of these plaintiffs “were capable of being calculated.” In my opinion, the jury properly determined they were not. The plaintiffs established defendant’s misconduct in continuing to manufacture and place into the stream of commerce a product containing the single most toxic chemical known to man — this despite general corporate knowledge of the state-of-the-art methods for eliminating the compound. Defendant’s misconduct was proved to the jury’s satisfaction. The jury was entitled, however, to reject plaintiffs’ evidence of specific damages and award only nominal damages for the injuries suffered. Under these circumstances, it is most important to be mindful of the fact that the jury was not considering merely negligence, wherein the trial focuses on the harm resulting to the injured plaintiffs and where credible evidence relating to the degree of plaintiffs’ injury determines the appropriate measure of compensatory damages. This is a wilful/wanton misconduct case, wherein the focus is on the defendant’s misconduct. The reprehensibility of that misconduct and the need to deter it are primary factors in determining the appropriate level of punitive damages. By comparison, the nature and severity of plaintiffs’ injuries may be difficult to prove, inexact, and only nominally compensable -without being deemed on review insufficient to support a substantial award for punitive damages. In this case, plaintiffs’ proof properly focused on defendant’s misconduct. Obviously, greed was the overriding incentive — by short-cutting the production process, the profit margin was greater. By finding for plaintiffs, the jury found that the misconduct alleged had been proved, and such finding was eminently reasonable and based on the evidence. In an analogous situation, a jury in Cook County found defendant asbestos manufacturer liable for compensatory and punitive damages on a wilful and wanton theory. (Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498 , 505 N.E.2d 1213 .) In Lipke, the defendant had corporate knowledge for between 5 and 40 years that its asbestos products were dangerous. The corporate defendant was aware of substitutes for asbestos for some 15 years but did not use them because asbestos was cheaper. The corporation “failed to take any real measures to protect the public until 1970 [10 years before plaintiff last worked for defendant].” ( 153 Ill. App. 3d at 505 .) Plaintiff developed squamous cell cancer and sued his former employer. The jury found for the plaintiff and awarded compensatory and punitive damages. On review, the court affirmed the jury’s verdict and succinctly stated the law of Illinois respecting the review of punitive damages for wilful and wanton misconduct: “The question for review, therefore, is whether the facts of the case warrant imposing punitive damages. (Yearian v. Columbia National Bank (1980), 86 Ill. App. 3d 508 , 408 N.E.2d 63 .) ‘The question of wilful and wanton conduct is essentially whether the failure to exercise care is so gross that it shows a lack of regard for the safety of others.’ (Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 136 , 253 N.E.2d 636 , affd (1970), 46 Ill. 2d 288 , 263 N.E.2d 103 .) ‘Ill-will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct will naturally and probably result in an injury.’ Streeter v. Humrichhouse (1934), 357 Ill. 234, 238 , 191 N.E.2d 684 .” (Emphasis added.) Lipke, 153 Ill. App. 3d at 505 , 505 N.E.2d at 1218 . While it would appear that the plaintiff in Lipke established his right to compensatory damages by proving lung cancer some 10 years after his last exposure to asbestos in defendant’s employ, I find no less compelling factual grounds in the present case for affirming the jury’s award of punitive damages against this defendant. Even lacking any evidence of Monsanto’s ill-will or intent, the facts in the record before us amply support the jury’s conclusion of liability for wilful and wanton misconduct. Under the circumstances, I find no justification, legal, factual or based on public policy, to reject the jury’s perception that even slight injury entitling the plaintiffs to nominal compensatory damages could be the basis for punishing the wrongdoer. Much of plaintiffs’ evidence of damages related to their fear of future harm or consequences from exposure to dioxin in their environment. In my opinion, this is a legitimate basis for recovery. (See Petriello v. Kalman (1990), 215 Conn. 377 , 576 A.2d 474 (Connecticut Supreme Court held in obstetrical malpractice suit in which plaintiff was subjected to increased risk of future bowel obstruction that plaintiff could recover both for her present fear of future consequences and for the value of the increased risk of future harm); see also Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1987), 827 F.2d 1119 (relying on Illinois defamation law, court on review awarded $1 million in “presumed” compensatory damages even though no specific pecuniary loss was proved and approved jury award of $2,050,000 in punitive damages against television network and news broadcaster); In re Application of Busse (1984), 124 Ill. App. 3d 433, 439 , 464 N.E.2d 651, 656 (in context of action for fraud and deceit, court recited that “a presumption of at least nominal damages follows from proof of a legal wrong [citations], and a liability for nominal damages is sufficient to sustain a cause of action”); Gertz v. Welch (1974), 418 U.S. 323, 350 , 41 L. Ed. 2d 789, 811 , 94 S. Ct. 2997, 3012 (again, in defamation context, Court observes that jury verdict awarding compensatory damages may be sustained based on evidence of injury, “although there need be no evidence which assigns an actual dollar value to the injury”).) But how does a jury calculate a monetary compensation for such injury? As I see it, the jury here found an injury in fact which was not susceptible of precise calculation; and, considering the law of Illinois as it appeared in the instructions they were given, the jury awarded a nominal $1 as compensation therefor. Justice Green, in his specially concurring opinion, implicitly acknowledges as much. And, as so aptly stated by my specially concurring colleague, quoting from Keeton & Prosser on Torts, it is precisely this type of case in which nominal damages should be permitted to support a punitive damage award. Neither Loitz nor Haslip says otherwise. My learned colleague, nonetheless, backs off from the enlightened view and goes on to portend of dangers of punitive damages “running wild.” Again, as with the main opinion, he has chosen the easy way out, dumping the entire jury verdict, without regard to the substantial factual basis for an award of punitive damages. As indicated above, it is my opinion that a reviewing court’s outright reversal without factual analysis is always ill-advised and frustrates the jurisprudential system we have pledged to uphold. In a situation analogous to this case, the district court in the Jacobson case reduced the jury’s assessment of compensatory damages for defendant’s defamation of the plaintiff cigarette manufacturer from $3 million to $1. In reinstating $1 million of the jury’s verdict for “presumed” damages, the circuit court of appeals looked to the factual scenario in which the defamatory statements were made and concluded that $1 million was “sizeable but on the facts of this case it is not ‘substantial’ under Illinois law.” (Jacobson, 827 F.2d at 1142 .) The court acknowledged that its process in reaching the $1 million figure was “a very inexact and somewhat arbitrary process” but that such process was inherent in Illinois law of presumed damages. Philosophically I find no greater need to “presume” compensatory damages in the defamation context than to permit a nominal compensatory award for wilful and wanton misconduct potentially causing insidious health consequences of dioxin poisoning. As the evidence in this case demonstrated, the dangers of dioxin are real. Dioxins are deadly and their long-term effects may be physically debilitating to an as-yet-unknown degree. Certainly the presumed loss to one’s reputation is no more worthy of this State’s protection than a community’s fear of cancer from exposure to dioxin. Defendant has invited our consideration of the Supreme Court’s most recent pronouncement concerning the proper review of punitive damages (Pacific Mutual Life Insurance Co. v. Haslip (1991), 499 U.S._, 113 L. Ed. 2d 1 , 111 S. Ct. 1032 ), and I believe that the Court’s opinion merits application here. In Haslip, plaintiff insureds brought an action in fraud against defendant life and health insurance company for its agent’s misappropriation of premium payments made after plaintiffs’ policy was cancelled without notice to the insureds. Mrs. Haslip incurred medical bills far beyond her ability to pay and learned she was uninsured. Her credit rating was ruined. After a trial by jury, a verdict for Mrs. Haslip was entered in the amount of $1,040,000, $840,000 of which represented punitive damages. The trial court, pursuant to Alabama law requiring post-verdict review of punitive damages awards, conducted a hearing “to reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages.” (Hammond, v. City of Gadsden (Ala. 1986), 493 So. 2d 1374, 1379 .) The award was affirmed on review by the supreme court of Alabama and certiorari was granted by the Supreme Court. In approving the procedure adopted by Alabama, the Court observed that the review there given “makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” In particular, the Court sanctioned the following factors to be applied in the review of punitive awards: “(a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred; (b) the degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, and any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the ‘financial position’ of the defendant; (e) all the costs of litigation-, (f) the imposition of criminal sanctions on the defendant for its conduct, these to be taken in mitigation; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.” (Emphasis added.) (Haslip, 499 U.S. at_, 113 L. Ed. 2d at 22 , 111 S. Ct. at 1045 , citing Green Oil Co. v. Hornsby (Ala. 1989), 539 So. 2d 218, 223-24 ; and Central Alabama Electric Cooperative v. Tapley (Ala. 1989), 546 So. 2d 371, 376-77 .) Notwithstanding the jury’s finding of plaintiffs’ entitlement to only nominal compensatory damages in this case, the ineluctable result of applying the foregoing factors is an approval of the $16.25 million punitive damages award. In sum, I find no abuse of the trial court’s discretion in denying defendant’s motion for judgment notwithstanding the verdict in this case. I am satisfied that the jury’s award in plaintiffs’ favor was based on the evidence presented at trial, and I would affirm the trial court’s ruling on the motion. I further find no reversible error in the trial court’s decision to reject defendant’s corporate complicity jury instruction. I do not deny that the law of Illinois at the time this case was tried was as stated by the majority. But I do not find that any instruction error here would in itself require a new trial. In my opinion, the IPI respondeat superior instruction given could not have affected the jury’s verdict on the wilful/wanton misconduct count. The testimony relative to defendant’s knowledge established that the corporation had knowledge of the dioxins it was producing at the Krummrich plant and their toxicity, and that defendant could have prevented their formation since at least the mid-1950’s. This knowledge was imputed to the corporation via “superior officers,” including defendant’s production supervisor, its chemical engineers, its plant managers, its director of research and development, its house counsel, its biohazards committee, and its director of medical and environmental health. Evidence of defendant’s engineers’, managers’, supervisors’, directors’ and counsels’ deliberate corporate participation in the production of toxic products despite awareness of state-of-the-art methods to prevent the toxicity and defendant’s ratification of the misconduct by continuous production for some 20 to 30 years until 1980 (several years after the accident underlying this case) permeated the trial and overwhelmingly satisfied the corporate complicity rule of this State. Again, the cases cited by the main opinion are inapposite. In Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 489 , 411 N.E.2d 910, 914 , the court found reversible error because the jury “could have based its verdict finding [defendant] liable for wilful and wanton conduct upon an act not ordered, participated in, or ratified by [defendant].” (Emphasis added.) It is clear to me that, but for the lack of evidence of corporate participation in the alleged wrongdoing in Pendowski, the court would not have found reversible error in the giving of the respondeat superior instruction. Mattyasovszky and Tolle likewise were decisions in which jury awards of punitive damages were reversed not for improper jury instructions, but for inadequate evidence of corporate liability. (See also Haslip, 499 U.S__, 113 L. Ed. 2d 1 , 111 S. Ct. 1032 (Court ruled in the context of the fraud suit that insurance agent’s misconduct entitling plaintiffs to punitive damages against insurance company on respondeat superior theory did not deprive corporate defendant of substantive due process).) By contrast, the majority here finds reversible error without regard to evidence of corporate participation and ratification presented at trial. Based on the vast amount of evidence of corporate knowledge and the corporation’s unabated production of dioxins in its consumer products over an extended period of time, the jury in this case could not have reached a contrary verdict had defendant’s corporate complicity instruction been substituted for the respondeat superior one given. Accordingly, I find no abuse of discretion in the trial court’s decision to deny defendant’s motion for a new trial on this basis. Next, I must agree with my colleagues that the trial court’s admission of evidence of prior dissimilar incidents at defendant’s plants located throughout the world, etc., was prejudicial error. Prejudicial error occurred, for instance, when the trial court denied defendant’s objections to statements made by the witnesses and counsel that defendant exposed babies and the elderly to dioxins in Lysol, that defendant had lied to the Canadian government in 1981 and to the E.P.A. in 1980 regarding the presence of dioxin in Santophen, that Agent Orange inflicted long-term illnesses on American soldiers in Viet Nam without warning, and that the Agent Orange case had been settled. On the other hand, I find much of the testimony complained of relevant to plaintiffs’ claim for punitive damages, e.g., that defendant misled its own employees about chloracne, a skin condition resulting from dioxin exposure; that defendant produced chemicals used in the manufacture of other consumer products, such as Lysol and Weed-B-Gone, that in fact contained dioxins; and that defendant for seven years daily dumped up to 40 pounds of dioxin from its Krummrich plant into the Mississippi River, thereby poisoning downstream food and water supplies. Even though these particular plaintiffs did not claim injury from these other chemicals, I believe that the testimony was relevant to the issue of defendant’s knowledge on the wilful/wanton count that dioxin was a by-product of its chemical production, including OCP-crude, and supportive of the claim for punitive damages. For purposes of the product liability count, I find no error in the admission of evidence of post-incident misconduct to the extent that such testimony may have been relevant to the issue of unreasonable dangerousness of OCP-crude. (Bass v. Cincinnati, Inc. (1989), 180 Ill. App. 3d 1076, 1081 , 536 N.E.2d 831, 835 .) However, inasmuch as the product liability claim was rejected by the jury and plaintiffs have not appealed, such evidence would not be appropriate on remand. I agree with my colleagues’ back-up position that this cause must be remanded for another trial. Although I do not find reversible error on any of the individual grounds treated in my colleagues’ opinions, having thoroughly considered these and other arguments relative to issues that are not likely to arise on retrial, I am of the opinion that the cumulative effect, primarily of the evidentiary errors, entitles defendant to a new trial. With respect to the Kemners’ claim for damages to real estate, I cannot subscribe to the majority’s reassessment of the evidence to arrive at the conclusion that the diminution of their property was not a result of dioxin contamination. In my opinion, from the fact that dioxin was in the OCP-crude, the further fact that the OCP-crude flowed across the Kemners’ land and the further fact that the OCP-crude was found downstream from the Kemners’ property, the jury could infer that dioxin necessarily contaminated all of the land that the OCP-crude touched. William Kemner’s testimony of the devaluation of his property was unrebutted. Thus, rather than reversing outright the jury’s verdict for the property owners, considering the cumulative effect of errors affecting claims for wilful and wanton misconduct, I would grant a new trial as to the Kemners’ property damage claims as well. I agree generally with the majority opinion’s discussion of the trial court’s ruling on plaintiffs’ section 2 — 611 motions and its reversal of an award reimbursing St. Clair County for juror fees, expenses, and extraordinary costs. I also agree with the majority’s rejection of defendant’s forum non conveniens and Federal preemption positions. I would remand the entire cause for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9518666. Public record. Not legal advice.