Illinois Appellate Court Throws Out Jury Verdict Finding Plaintiff with Asymptomatic Asbestosis Did Not Prove Any Physical Harm
On June 20, 2016, the Fourth District of the Illinois Appellate Court held in Sondag v. Pneumo Abex Corp. (No. 4-14-0918) (4th Dist. Ill. App. Ct.) (June 20, 2016) that a plaintiff who was diagnosed with asbestosis but with a lack of any clinical symptoms suffered no physical harm and thus could not maintain a product liability claim against a defendant whose product had exposed him to asbestos.
Plaintiff Joseph Sondag and his spouse Phyllis Sondag sued defendant company, Tremco Inc., claiming that asbestos-containing tape manufactured by defendant and used by Joseph Sondag in his work as a plasterer for 26 years had caused him to develop pleural plaques and interstitial fibrosis. A jury returned a verdict in plaintiffs’ favor, awarding damages, and defendant appealed. The appellate court reversed the trial court’s judgment, finding that the court should have granted defendant’s motion for directed verdict because the plaintiff did not suffer any physical harm.
At trial plaintiff’s treating physician testified that he diagnosed plaintiff with asbestosis after plaintiff’s chest X-ray and computerized tomography (CT) scan of his chest revealed pleural plaques and interstitial fibrosis (scarring) in his lungs. Plaintiff never complained of shortness of breath or chest pain. Plaintiff had no restrictive lung disease, no pulmonary symptoms, no respiratory distress or limitation, and had an “excellent” diffusion capacity for someone with his age and who had smoked. According to his treating physician, plaintiff (age 82 at the time of trial) could climb two flights of stairs, at a running pace, without shortness of breath.
The appellate court explained that “physical harm” was an essential element of any action for products liability, regardless of whether the action sounded in negligence or strict liability. In both sections 388 and 402A of the Restatement (Second) of Torts, “harm” is defined as more than an alteration to the structure of one’s body, rather it implies a loss or detriment to a person. Therefore, “physical harm” means a physically impairing loss or detriment.
The appellate court found that “Joseph Sondag has experienced an alteration to the structure of his body: he has pleural plaques and interstitial fibrosis.” But it appears from the record at trial, “that the pleural plaques and interstitial fibrosis are asymptomatic. They have caused no physically impairing loss or detriment to Joseph Sondag.” The court explained that “[a]lthough no one wants pleural plaques and interstitial fibrosis, we do not see how these conditions have affected him in any practical, functional way. “ The court stated that “[i]t appears that, but for the X-ray and CT scan, he would have remained blissfully unware of any condition in his lungs. “ Plaintiffs offered no evidence of “physical harm,” an essential element of their cause of action, and therefore the appellate court reversed the trial court’s judgment.
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