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Joseph Sondag was alleged in this lawsuit to have been exposed to asbestos dust from drywall tape manufactured by Tremco when he worked as a plasterer from 1957 to 1983. In 2007, he was diagnosed with pleural plaques and interstitial fibrosis.
At trial, Sondag’s treating physician, Dr. Al Rossi, testified that these conditions were probably caused by on-the-job exposure to asbestos. However, Dr. Rossi did not diagnose Sondag as suffering any symptoms from this condition.
According to Sondag’s wife, Phyllis, and their daughter, he suffered from shortness of breath. But he was an ex-smoker and was 82 when the case was tried. There was no expert testimony that the pleural plaques and interstitial fibrosis were symptomatic.
According to the Illinois Appellate Court’s opinion, “proof of physical harm” is one of the required ingredients for product liability based on negligence under Section 388 of the Restatement (Second) of Torts.
Because he “has only abnormal lung X-rays with no clinical symptoms,” the majority opinion concluded that the Sondags “presented no evidence of ‘physical harm,’” and “the trial court should have granted defendant’s motion for directed verdict.” One justice, Justice Thomas M. Harris, agreed on reversing the $245,000 verdict except for $67,000 in medical expenses because this was a case where expert medical testimony was required to establish a “causal link between the family’s observations and Joseph Sondag’s asbestosis.”
Based on his own analysis of the Restatement (Second) of Torts, Justice Harris also concluded Sondag suffered “bodily harm” – a term that “is used interchangeably with ‘physical harm’” in Section 388 – and “the ‘physical harm’ requirement in Section 388 was met by plaintiffs,” he wrote.
The majority opinion of the Illinois Appellate Court in this case stated that “physical harm” is an essential element of any action for product liability, regardless of whether the actions sound in negligence or strict liability.”
Section 388, which governs products-liability actions premised on negligence, provides as follows: “One who supplies . . . a chattel . . . is subject to liability . . . for physical harm caused by the use of the chattel . . . if the supplier . . .”
Likewise, Section 402A(1) of the restatement, which governs products-liability actions premised on strict liability, provides that the “one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user . . .”
The bottom line in this case is that “physical harm” has a particular meaning in the Restatement (Second) of Torts.
The word “injury” is used throughout the restatement to denote the invasion of any legally protected interest of another. The word “harm” is used throughout the restatement to denote the existence of loss or detriment in fact of any kind to a person resulting from any cause.
The words “physical harm” is used throughout the restatement of this subject to denote physical impairment of the human body or of land or of chattels.
“Harm implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing.”
According to majority opinion, it was stated that appearing from the record that the pleural plaques and interstitial fibrosis were asymptomatic, they caused no physical impairing loss or detriment to Sondag.
In other words, although no one wants pleural plaques or interstitial fibrosis, the court found that it did not see how these conditions had affected Sondag in any practical, functional way. He has no pulmonary symptoms. It appears that, but for the X-ray and CT scan, he would have remained blissfully unaware of any condition in his lungs. The results of his pulmonary function tests were “excellent” according to his treating physician. He just has abnormal X-rays.
To qualify as “physical harm” the alteration of the body must have a detrimental effect in a more practical sense, such as by causing noticeable respiratory symptoms. There was a filed partial dissent in this 2-1 decision. The dissenting justice commented that “bodily harm is any physical impairment of a condition of another’s body, or physical pain or illness.”
The judgment of $245,00 in favor of Phyllis and Joseph Sondag and against Tremco was reversed for the reasons stated above.
Sondag v. Pneumo Abex Corp., 2016 IL App (4th) 140918 (June 20, 2016).
Kreisman Law Offices has been handling pharmaceutical defect and injury cases, mass tort injury cases, product-liability lawsuits, catastrophic injury cases and manufacturing defect cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Worth, Summit, Bedford Park, Franklin Park, Elmwood Park, Bensenville, Des Plaines, Mount Prospect, Glencoe, Glenview, Northfield, Northbrook, Palatine, Palos Hills, Palos Heights, Oak Forest, Orland Park, Chicago (Albany Park, Andersonville, Lakeview, Southport, Pill Hill, Old Town Triangle, Little Italy, Loyola Park, Mayfair, McKinley Park, Midlothian Square, Back of the Yards, Pullman, Pulaski Park, Princeton Park, Printer’s Row), Western Springs, St. Charles, River Forest and Park Ridge, Ill.
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