SPRINGFIELD – Former plasterer Joseph Sondag, who won a jury
verdict in an asbestos trial but lost it on appeal due to his excellent
breathing, aims to restore it at the Illinois Supreme Court.
Sondag wants the Court to review a decision of Fourth
District appellate judges in Springfield, who found he suffered no physical
harm from asbestos.
They ruled that McLean County Circuit Judge Rebecca Foley
should have directed a verdict for Tremco Inc., instead of entering $70,000
judgment against it.
Sondag used Tremco tape, which contained asbestos, from 1957
He sued Tremco and other asbestos defendants in 2008, after
physician Al Rossi found scarring and pleural plaques in his lungs.
At trial in 2014, Rossi testified that at age 82, Sondag
could climb two flights of stairs at a running pace without shortness of
He told jurors a pulmonary test showed excellent diffusion
capacity for a man of his age who had smoked.
Daughter Julie Grant told jurors she had noticed shortness
of breath, and spouse Phyllis Sondag told them it had grown worse in the last
year and a half.
Jurors awarded damages but didn’t break them down by
On appeal, Tremco argued that physical changes resulting
from asbestos dust, without clinical symptoms, do not afford a cause of action
for products liability.
Fourth District judges agreed this June, finding Sondag
suffered no physical harm.
Justice Thomas Appleton wrote, “He has no pulmonary
“Physical harm is an essential element of any action for
product liability, regardless of whether the action sounds in negligence or
strict liability,” he wrote.
Appleton distinguished physical harm from harm, and
distinguished both from injury.
He wrote that injury denotes invasion of any legally
protected interest of another.
He wrote that harm denotes existence of loss or detriment in
fact of any kind resulting from any cause.
He also wrote that physical harm denotes physical impairment
of the human body, or of land or chattels.
“Although no one wants pleural plaques and interstitial
fibrosis, we do not see how these conditions have affected him in any
practical, functional way,” Appleton
He wrote that as of the date of trial, Sondag had no
restrictive lung disease, respiratory distress or limitation.
But for tests, “he would have remained blissfully aware of
any condition in his lungs,” he wrote.
Appleton found no evidence that plaques and scars caused the
shortness of breath that his daughter and spouse noticed.
“After all, Joseph Sondag is 82 years old, and he has been a
smoker,” Appleton wrote.
Physician Rossi “agreed that Joseph Sondag was doing pretty
well,” he wrote.
He wrote that Sondag might argue that he would have been
even healthier had he not been exposed to Tremco tape.
“The problem with such reasoning is that there are hundreds
of millions of air sacs in the lungs and saying that physical harm begins with
the scarring of any one of these air sacs would tend to divest harm of its
practical meaning,” he wrote.
Justice Lisa Holder White concurred.
Justice Thomas Harris concurred but wrote separately that he
would have ordered Tremco to pay $67,000 in medical bills.
That would nearly equal the amount of the jury’s award, which
Appleton did not include in his opinion but Harris included in his.
Sondag petitioned the Supreme Court for leave to appeal, and
he awaits an answer.
Brad Elward, Melissa Schoenbein, Chris Larson and William
Charnock, all of Heyl Royster in Peoria, represent Tremco.
Chip Corwin, James Wylder and Andrew Kelly, all of Wylder
Corwin Kelly in Bloomington, represent Sondag.