The landscape for non-malignant claims in Illinois is shifting after a recent decision by the 4th District Court of Appeals holding that the trial court in that case should have granted Defendant's motion for directed verdict against a Plaintiff who had only abnormal lung x-rays with no clinical symptoms and presented no evidence of "physical harm." 

Joseph Sondag was a plasterer from 1957 to 1983. In 2008, he and his wife Phyllis Sondag filed a lawsuit in McLean County, Illinois (08-L-17) claiming his asbestos exposure from daily work with Tremco drywall tape caused him to develop pleural plaques and interstitial fibrosis.

Plaintiff's physician, Dr. Al Rossi testified that Mr. Sondag's health had generally been good during the 20 year period he served as Mr. Sondag's treating physician. In 2007, though, Mr. Sondag came to him with complaints of dizziness, sweating, and a disturbance of the inner ear. As a result of these complaints, Mr. Sondag underwent a chest x-ray and CT scan that revealed pleural plaques and interstitial fibrosis of the lungs – leading to a diagnosis of asbestosis. Mr. Sondag never complained of shortness of breath or chest pains and his lungs were clear with no wheezing or restriction. Nonetheless, a pulmonary function test was performed and showed "excellent diffusion capacity...for a man who had smoked."               

Despite the fact that Plaintiff's daughter and wife testified that he had experienced a shortness of breath and that his condition had worsened since 2007, the court found that the essential element of "physical harm" was not met in this case and therefore Defendant's motion for a directed verdict should have been granted.           

Quoting from Section 7 of the Restatement (Second) of Torts, the court distinguished between "injury" (invasion of any legally protected interest of another), "harm" (existence of loss or detriment in fact of any kind to a person resulting from any cause), and "physical harm" (physical impairment of the human body, or of land or chattels) and noted that both Section 388 (products liability claims based on negligence) and Section 402A(1) (products-liability actions premised on strict liability) require physical harm as part of those actions. Per the Sondag court, The Illinois Supreme Court has adopted Section 388 and 402A without modification or qualification and therefore, the meanings of terms in those sections have likewise been adopted. 

Comment b to Section 7 provided the necessary guidance for the court that "harm means more than an alteration to the structure of one's body..." but rather "...implies a loss or detriment to a person..." The court noted that while nobody wants pleural plaques and interstitial fibrosis, there was nothing in the record showing they affected Mr. Sondag in any functional way. Concerning the testimony of Plaintiff's family members, the court noted that there was no evidence that the shortness of breath they discussed was caused by the Plaintiff's pleural plaques and interstitial fibrosis. Finally, the court noted that a potential argument that scarring of an individual air sac that carries oxygen "would tend to divest 'harm' of its practical meaning." In light of these findings, the court reversed the decision of the trial court denying directed verdict.

The immediate impact of this decision will be felt most dramatically in McLean County, Illinois (which sits in the 4th District), where several non-malignant claims are filed against firm clients every year. Perhaps plaintiffs will expend greater resources to create a connection between breathing/fatigue issues and evidence of pleural thickening/scarring, but in the meantime it seems likely efforts will be made to create a District split, forcing the Illinois Supreme Court to determine the issue. As always, we will approach these cases with a careful eye on discovery of medical records and make sure reports of Plaintiff's medical experts are scrutinized for efforts to circumvent this ruling.

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