No Harm No Foul in Asbestos Product Liability Action With Physical Injury

In a recent decision out of an Illinois appellate court, it was held that physical injury does not always equate to compensable physical harm. In the case of Sondag v. Pneumo Abex Corp., et al, the plaintiffs, Joseph and Phyllis Sondag, sued various defendants they claimed exposed Joseph Sondag to asbestos, which lead to his developing pleural plaques and interstitial fibrosis. The plaintiffs alleged that the defendant Tremco, Inc. manufactured asbestos containing tape that was used by Joseph as a professional plasterer. The case proceeded to trial and the jury found in favor of the plaintiffs. Tremco appealed. The appellate court subsequently 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, Sondag testified that he worked as a plasterer from 1957-1983, and used Tremco drywall tape on virtually every job. Although Sondag’s treating physician diagnosed him with asbestosis, Sondag never complained to him of shortness of breath or chest pain. His lungs were clear and he had an excellent diffusion capacity for someone with his age and history. Tremco cited to several out-of -state cases, Giffear v. Johns-Mansville Corp., 632 A.2d 880, 885 (Pa. Super. Ct. 1993); Caterinicchio v. Pittsburgh Corning Corp., 605 A.2d 1092, 1096 (N.J. 1992); Wright v. Eagle-Picher Industries, Inc., 565 A.2d 377, 381 (Md. Ct. Spec. App. 1989); Burns v. Jaquays Mining Corp., 752 P.2d 28, 31 (Ariz. Ct. App. 1987); Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985); and In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563, 1567 (D. Haw. 1990), in arguing that a cause of action for products liability cannot be maintained for physical changes to lungs from asbestos exposure without clinical symptoms.

In its analysis, the court noted that “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. As the court held: “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.”

In conclusion, the court saw no evidence that the pleural plaques and interstitial fibrosis that were exhibited by Sondag’s x-rays were a physically impairing loss or of detriment to him. While Joseph’s wife testified that his shortness of breath had become worse over the last year and a half, the court noted that it was unaware of any evidence that pleural plaques and interstitial fibrosis caused shortness of breath.

The distinction between injury and harm drawn by the court is an important one to keep in mind for cases where a plaintiff is alleging a product liability claim. Through some basic discovery it can be determined if the plaintiff has symptoms and if they related to asbestos exposure, or possibly from other causes. For example, even if a plaintiff has worsening shortness of breath, do they also have COPD or emphysema from years of smoking? Conducting some medical discovery and fleshing out these issues may go a long way to obtaining summary judgment, or, like here, a directed verdict if a plaintiff can’t demonstrate symptoms or relate those symptoms to the asbestos exposure. Before spending much effort in developing this type of defense it is, of course, first necessary to see if the court where the case is venued has adopted the same reasoning as in the Restatements above.