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Asbestos plaintiff seeks to restore verdict after Fourth District rejects claims

By Record News | Sep 9, 2016

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 to 1983. 

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 breath. 

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 category. 

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 symptoms.” 

“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 wrote.   

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.    

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Heyl Royster Illinois Supreme Court