Distinction Between Physical Harm and Physical Injury Key in Reversal of Trial Court’s Denial of Directed Verdict

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The plaintiffs sued defendant Tremco, Inc. alleging asbestos exposure from tape used in the plaintiff’s profession as a plasterer. The plaintiffs alleged the development of pleural plaques and interstitial fibrosis. The jury found in favor of the plaintiffs, and Tremco appealed. The appellate court reversed the trial court’s judgment, finding that the court should have granted Tremco’s motion for directed verdict because the plaintiff did not suffer any physical harm.

At trial plaintiff testified that he worked as a plasterer from 1957-1983, and used Tremco drywall tape on virtually every job. Although the plaintiff’s treating physician diagnosed him with asbestosis, the plaintiff never complained to him of shortness of breath or chest pain. The plaintiff’s lungs were clear and the plaintiff had an excellent diffusion capacity for someone with his age and history. The plaintiff’s daughter and spouse both testified he had shortness of breath.

“Physical harm” was an essential element of any action for products liability, regardless of whether the action sounded in negligence or strict liability. The court cited both Restatement (Second) of Torts § 388 (negligence) and § 402A(1) (products liability), both of which the Illinois Supreme Court adopted without modification or qualification; the Restatement distinguished “injury” and “harm” because in some circumstances, the common law recognized a cause of action for conduct that invades or “injures” a legally protected interest, even though the conduct caused no harm. “Unlike the victim of an assault, Joseph Sondag has experienced an alteration to the structure of his body: he has pleural plaques and interstitial fibrosis. As comment b to section 7 explains, however, “harm” means more than an alteration to the structure of one’s body. ‘Harm’ 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. Restatement (Second) of Torts § 7 cmt. b, at 13 (1965)…Although no one wants pleural plaques and interstitial fibrosis, we do not see how these conditions have affected him in any practical, functional way…It appears that, but for the x-ray and CT scan, he would have remained blissfully unaware of any condition in his lungs.” The court did note that if the plaintiffs had alleged battery, the plaintiff would have suffered “bodily harm,” but the complaint only alleged products liability. Further the court was unaware of any evidence that pleural plaques and interstitial fibrosis caused shortness of breath.

Read the full decision here.