Illinois Appellate Court Holds that Plaintiff with Asymptomatic Asbestosis Cannot Maintain a Products Liability Claim
June 20, 2016, a divided panel of the appellate court held that physical changes to the lungs, such as asbestosis and pleural plaques, do not afford a cause of action for product liability unless accompanied by clinical symptoms. See Sondag v. Pneumo Abex Corp., 2016 IL App (4th) 140918. This brings Illinois law into line with a number of other jurisdictions.
In 2007, the plaintiff, Joseph Sondag, went to his doctor complaining of dizziness, sweating, and a disturbance of the inner ear. A chest x-ray and CT scan of Sondag’s chest revealed pleural plaques and interstitial fibrosis (scarring) in his lungs, and his doctor subsequently diagnosed him with asbestosis. His doctor further opined that those injuries had been caused by the plaintiff’s used of Tremoc, Inc.’s asbestos-containing tape. Notably, Joseph Sondag did not complain of respiratory symptoms such as chest pain, shortness of breath, or wheezing. In fact, various tests showed that Sondag’s pulmonary function was well within normal limits.
Relying on that diagnosis, Joseph Sondag and his spouse, Phyllis Sondag, sued Tremco Inc. in the Circuit Court of McClean County. After a jury returned a verdict in plaintiffs’ favor the defendant appealed. On appeal, the Appellate Court returned a directed verdict in favor of the defendant. The court held that the plaintiffs had failed to present any evidence of “physical harm,” an essential element of any action for products liability.
In reaching its decision, the court distinguished between “injury” and “harm.” Relying on the Restatement (Second) of Torts, the court defined “injury” as the invasion of any legally protected interest of another. In contrast, the court defined “harm” as the existence of loss or detriment in fact. Quoting the Restatement (Second) of Torts, § 7, the court noted that "‘[h]arm’ implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object[,] or thing. Physical changes or alterations may be either beneficial, detrimental, or of no consequence to a person. In so far as physical changes have a detrimental effect on a person, that person suffers harm." Thus, an injury that does not manifest any symptoms does not constitute compensable “harm” for purposes of a products liability action.
The court agreed with the plaintiffs that Joseph Sondag had suffered an injury. The court accepted that Sondag had experienced an alteration to the structure of his body insomuch as the pleural plaques and interstitial fibrosis that had physically altered the structure of his lungs. However, the court concluded that Sondag had not suffered harm. The court reasoned that the injuries to Sondag’s lungs had not presented any clinical symptoms, and had therefore not caused any physically impairing loss or detriment to Joseph Sondag in any practical or functional way. The court further noted that even on the day of trial Sondag still had no pulmonary symptoms, respiratory distress, or limitation, and opined that had he not undergone the x-ray and CT scan he “would have remained blissfully unaware of any condition in his lungs.” Thus, the plaintiffs had not introduced any evidence of “physical harm,” an essential element of their case, and the verdict returned in their favor at the trial level could not possibly stand.
Please contact Simon Baker at sbaker@sinarslaw.com. with any questions. A full copy of the decision is available here.
In 2007, the plaintiff, Joseph Sondag, went to his doctor complaining of dizziness, sweating, and a disturbance of the inner ear. A chest x-ray and CT scan of Sondag’s chest revealed pleural plaques and interstitial fibrosis (scarring) in his lungs, and his doctor subsequently diagnosed him with asbestosis. His doctor further opined that those injuries had been caused by the plaintiff’s used of Tremoc, Inc.’s asbestos-containing tape. Notably, Joseph Sondag did not complain of respiratory symptoms such as chest pain, shortness of breath, or wheezing. In fact, various tests showed that Sondag’s pulmonary function was well within normal limits.
Relying on that diagnosis, Joseph Sondag and his spouse, Phyllis Sondag, sued Tremco Inc. in the Circuit Court of McClean County. After a jury returned a verdict in plaintiffs’ favor the defendant appealed. On appeal, the Appellate Court returned a directed verdict in favor of the defendant. The court held that the plaintiffs had failed to present any evidence of “physical harm,” an essential element of any action for products liability.
In reaching its decision, the court distinguished between “injury” and “harm.” Relying on the Restatement (Second) of Torts, the court defined “injury” as the invasion of any legally protected interest of another. In contrast, the court defined “harm” as the existence of loss or detriment in fact. Quoting the Restatement (Second) of Torts, § 7, the court noted that "‘[h]arm’ implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object[,] or thing. Physical changes or alterations may be either beneficial, detrimental, or of no consequence to a person. In so far as physical changes have a detrimental effect on a person, that person suffers harm." Thus, an injury that does not manifest any symptoms does not constitute compensable “harm” for purposes of a products liability action.
The court agreed with the plaintiffs that Joseph Sondag had suffered an injury. The court accepted that Sondag had experienced an alteration to the structure of his body insomuch as the pleural plaques and interstitial fibrosis that had physically altered the structure of his lungs. However, the court concluded that Sondag had not suffered harm. The court reasoned that the injuries to Sondag’s lungs had not presented any clinical symptoms, and had therefore not caused any physically impairing loss or detriment to Joseph Sondag in any practical or functional way. The court further noted that even on the day of trial Sondag still had no pulmonary symptoms, respiratory distress, or limitation, and opined that had he not undergone the x-ray and CT scan he “would have remained blissfully unaware of any condition in his lungs.” Thus, the plaintiffs had not introduced any evidence of “physical harm,” an essential element of their case, and the verdict returned in their favor at the trial level could not possibly stand.
Please contact Simon Baker at sbaker@sinarslaw.com. with any questions. A full copy of the decision is available here.