                                                                                      FILED
                                                                                     June 20, 2016
                                   2016 IL App (4th) 140918
                                                                                     Carla Bender
                                                                                 4th District Appellate
                                        NO. 4-14-0918
                                                                                       Court, IL
                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                     FOURTH DISTRICT


 JOSEPH SONDAG and PHYLLIS SONDAG,                         )       Appeal from
                Plaintiffs-Appellees,                      )       Circuit Court of
                v.                                         )       McLean County
 PNEUMO ABEX CORPORATION; PNEUMO                           )       No. 08L17
 ABEX, L.L.C; METROPOLITAN LIFE INSURANCE                  )
 COMPANY; OWENS-ILLINOIS, INC.;                            )
                                                           )
 HONEYWELL INTERNATIONAL, INC.;
                                                           )
 SPRINKMANN SONS CORPORATION OF                            )
 ILLINOIS; SPRINKMANN SONS CORPORATION;                    )
 RAPID-AMERICAN CORPORATION; UNION                         )
 CARBIDE CORPORATION; GEORGIA-PACIFIC                      )
 CORPORATION; TREMCO, INC.; BONDEX                         )
 INTERNATIONAL; and JOHN CRANE, INC.,                      )
                                                           )       Honorable
                Defendants
                                                           )       Rebecca Simmons Foley,
 (Tremco, Inc., Defendant-Appellant).                      )       Judge Presiding.


              JUSTICE APPLETON delivered the judgment of the court, with opinion.
              Justice Holder White concurred in the judgment and opinion.
              Justice Harris specially concurred in part and dissented in part, with opinion.

                                           OPINION
¶1            Plaintiffs, Joseph Sondag and his spouse, Phyllis Sondag, sued defendant,

Tremco, Inc., claiming that asbestos-containing tape manufactured by defendant and used by

Joseph Sondag in his profession as a plasterer had caused him to develop pleural plaques and

interstitial fibrosis. The jury returned a verdict in plaintiffs' favor, awarding them damages.

Defendant appeals. We reverse the trial court's judgment. The court should have granted

defendant's motion for a directed verdict, considering that, insomuch as the evidence before the
jury showed, Joseph Sondag is asymptomatic and thus has suffered no "physical harm."

Restatement (Second) of Torts §§ 388, 402A(1) (1965).

¶2                                     I. BACKGROUND

¶3                           A. The Allegations Against Defendant

¶4             Two of the counts of the complaint were directed against defendant.

¶5             In count III, Joseph Sondag alleged as follows. Defendant manufactured and sold

asbestos-containing products, which were used at locations where he worked as a plasterer from

the 1950s to the 1980s. He was exposed to asbestos dust from these products and consequently

developed asbestosis. Before manufacturing and selling these products, defendant knew that

exposure to asbestos dust caused "pulmonary fibrosis and malignancies."           Defendant "was

negligent" by failing to warn of the adverse health effects of asbestosis and by failing to provide

instructions on how to safely handle asbestos-containing products, if indeed there was any safe

method of doing so.

¶6             In count IV, Phyllis Sondag repeated the foregoing allegations of count III and

alleged that because of the negligently caused "injury to her husband," she had "suffered an

injury to her husband/wife relationship and [had] become obligated for the expense of medical

care received by her husband."

¶7                                B. Evidence in the Jury Trial

¶8                                      1. Joseph Sondag

¶9             In the February 2014 jury trial, Joseph Sondag testified he was 82 years old and

that from 1957 to 1983 he worked as a plasterer. On virtually every job, he used drywall tape

bearing the label of "Tremco." Using a knife, he cut the tape to the needed lengths.

¶ 10                                   2. Michael Koehler



                                               -2-
¶ 11           Defendant's corporate representative, Michael Koehler, testified it was not until

the late 1970s that a "few" of defendant's tapes became asbestos-free. Counsel for plaintiffs

impeached him with his deposition testimony, in which he stated that, as far as he knew, all of

defendant's tapes contained asbestos during the years defendant used asbestos in its tapes.

¶ 12                                        3. Al Rossi

¶ 13           Al Rossi testified he had been Joseph Sondag's treating physician for more than

20 years and that before 2007 the patient's general health had been good, although he suffered

from high blood pressure, controlled by medicine.

¶ 14           In 2007, Joseph Sondag came to him complaining of dizziness, sweating, and a

disturbance of the inner ear. Rossi had him undergo a chest X-ray as well as a computerized

tomography (CT) scan of his chest, and these revealed pleural plaques and interstitial fibrosis

(scarring) in his lungs. Rossi diagnosed asbestosis, a permanent condition, which had been

caused, he believed, by defendant's asbestos-containing tape.

¶ 15           Joseph Sondag never complained to him, though, of shortness of breath or chest

pain. His lungs were clear, with no wheezing or restriction. Nevertheless, given the results of

the X-ray and the CT scan, he had Joseph Sondag undergo a pulmonary function test, which

measured breathing capacity and the ability to exchange carbon dioxide for oxygen.            The

pulmonary function test showed a diffusion capacity of 54%: in Rossi's opinion, an "excellent

diffusion capacity" for a man of Joseph Sondag's age who had smoked. The diffusing capacities,

arterial blood gases, and total lung volumes all were within normal limits.

¶ 16           Afterward, follow-up examinations showed Joseph Sondag's condition to be

unchanged. As of the date of the trial, he still had no restrictive lung disease; he still had no

pulmonary symptoms, no respiratory distress or limitation. The pleural plaques were stable, and



                                               -3-
Rossi had seen no progression in the last several years. In fact, he noted that, at age 82, Joseph

Sondag could climb two flights of stairs, at a running pace, without shortness of breath. He

agreed that Joseph Sondag was doing pretty well.

¶ 17                            4. Julie Grant and Phyllis Sondag

¶ 18           Joseph Sondag's daughter, Julie Grant, testified that complaining went against her

father's nature and that he always would insist he was "fine." Nevertheless, she "definitely [had]

noticed that he [was] short of breath."

¶ 19           Likewise, Joseph Sondag's spouse, Phyllis Sondag, who had known him for more

than 65 years, had noticed he suffered from shortness of breath, which had "definitely gotten

worse" over the past year and a half.

¶ 20                                      II. ANALYSIS

¶ 21           Defendant cites several out-of-state cases in support of its argument that physical

changes to the lungs resulting from the inhalation of asbestos dust, unaccompanied by any

clinical symptoms, do not afford a cause of action for products liability. 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); In re Hawaii

Federal Asbestos Cases, 734 F. Supp. 1563, 1567 (D. Haw. 1990).

¶ 22           In one of those cases, a naval pipefitter, William Giffear, and his spouse, Paula

Giffear, sought damages for physical injuries and for fear and increased risk of cancer arising out

of his occupational exposure to asbestos. Giffear, 632 A.2d at 882. He pleaded "several theories

of liability," all of which "allow[ed] recovery for physical harm to the user or consumer under



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certain conditions." (Emphasis added.) Id. at 885 n.7. The problem was that all he had was

"pleural thickening, absent disabling consequences or manifest physical symptoms." Id. at 884.

The Superior Court of Pennsylvania held this was "a non-compensable injury and [was] therefore

not a cognizable claim in the Commonwealth." Id. In explaining how it arrived at that holding,

the court pointed out the distinction between an " 'injury' " and " 'harm,' " as those terms were

defined by section 7 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 7

(1965)); this distinction was "important in understanding the Giffears' failure to show

compensable harm suffered by Mr. Giffear." Giffear, 632A.2d at 885 n.7 (quoting Restatement

(Second) of Torts § 7(1), (2) (1965)).      Although William Giffear's lungs might have been

" 'injured' " in the sense that the pleural thickening represented an invasion of his legally

protected interest in bodily integrity, he had suffered no " 'harm' " in the sense of any

"detrimental effects as a result of his asbestos exposure." Id. All his theories of liability required

not "injury" but "physical harm." Id.

¶ 23           "Physical harm" is an essential element of any action for products liability (Board

of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 443 (1989); Woodill v. Parke

Davis & Co., 58 Ill. App. 3d 349, 355 (1978)), regardless of whether the action sounds in

negligence (Restatement (Second) of Torts § 388 (1965)) or strict liability (Restatement (Second)

of Torts § 402A (1965)).

¶ 24           Section 388, which governs products-liability actions premised on negligence,

provides as follows:

                       "One who supplies directly or through a third person a

               chattel for another to use is subject to liability to those whom the

               supplier should expect to use the chattel with the consent of the



                                                -5-
                other or to be endangered by its probable use, for physical harm

                caused by the use of the chattel in the manner for which and by a

                person for whose use it is supplied, if the supplier

                        (a) knows or has reason to know that the chattel is or is

                likely to be dangerous for the use for which it is supplied, and

                        (b) has no reason to believe that those for whose use the

                chattel is supplied will realize its dangerous condition, and

                        (c) fails to exercise reasonable care to inform them of its

                dangerous condition or of the facts which make it likely to be

                dangerous." (Emphasis added.) Restatement (Second) of Torts

                § 388 (1965).

¶ 25            Likewise, section 402A(1), which governs products-liability actions premised on

strict liability, provides as follows:

                        "(1) One who sells any product in a defective condition

                unreasonably dangerous to the user or consumer or to his property

                is subject to liability for physical harm thereby caused to the

                ultimate user or consumer, or to his property, if

                        (a) the seller is engaged in the business of selling such a

                product, and

                        (b) it is expected to and does reach the user or consumer

                without substantial change in the condition in which it is sold."

                (Emphasis added.) Restatement (Second) of Torts § 402A(1), at

                347-48 (1965).



                                                 -6-
¶ 26           The Supreme Court of Illinois has adopted section 388 (Busch v. Graphic Color

Corp., 169 Ill. 2d 325, 334 (1996)) and section 402A (Lamkin v. Towner, 138 Ill. 2d 510, 528

(1990); Suvada v. White Motor Co., 32 Ill. 2d 612, 621 (1965)) without modification or

qualification. By so doing, the supreme court necessarily adopted the meanings that terms have

in those sections.

¶ 27           "Physical harm" has a particular meaning in the Restatement (Second) of Torts.

The term is defined in section 7(3) of chapter 1, a chapter entitled "Meaning of Terms Used

Throughout the Restatement of Torts." We will quote section 7 in full to show how "physical

harm" or, more generally, "harm" is different from an "injury":

                      "(1) The word 'injury' is used throughout the Restatement

               of this Subject to denote the invasion of any legally protected

               interest of another.

                      (2) The word 'harm' is used throughout the Restatement of

               this Subject to denote the existence of loss or detriment in fact of

               any kind to a person resulting from any cause.

                      (3) The words 'physical harm' are used throughout the

               Restatement of this Subject to denote the physical impairment of

               the human body, or of land or chattels." Restatement (Second) of

               Torts § 7 (1965).

¶ 28           Thus, section 7 specially defines three terms: "injury"; "harm"; and "physical

harm," which is a type of "harm," i.e., a physically impairing loss or detriment. Why does the

Restatement draw a distinction between an "injury" and "harm"? The reason is that, in some

circumstances, the common law recognizes a cause of action for conduct that invades or



                                              -7-
"injures" a legally protected interest, even though the conduct causes no harm. An innocuous or

beneficial trespass to land is one example. Id. An assault—drawing back as if to deliver a punch

but stopping short of delivering it—is another example of an "injury" in the absence of "harm."

Id.

¶ 29           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).

¶ 30           It appears from the record that the pleural plaques and interstitial fibrosis are

asymptomatic. They have caused no physically impairing loss or detriment to Joseph Sondag.

Although no one wants pleural plaques and interstitial fibrosis, we do not see how these

conditions have affected him in any practical, functional way. He has no pulmonary symptoms.

It appears that, but for the X-ray and CT scan, he would have remained blissfully unaware of any

condition in his lungs. The results of his pulmonary function test were "excellent," according to

his treating physician, Rossi. He just has abnormal lung X-rays.

¶ 31           If, by battering Joseph Sondag, someone had caused him to develop these

asymptomatic pleural plaques and this interstitial fibrosis, he would have a cause of action

against the batterer for "a violation of [his] right to freedom from the intentional infliction of

offensive bodily contacts." Restatement (Second) of Torts § 15 cmt. a, at 27 (1965). Despite the



                                              -8-
lack of clinical symptoms, Joseph Sondag, as the victim of a battery, would have suffered

"bodily harm" as defined in section 15 of the Restatement (Second) of Torts (Restatement

(Second) of Torts § 15 (1965)). A victim of an offensive bodily contact, a battery, suffers

"bodily harm" if the contact alters the victim's body in any way—even if the alteration is

physically beneficial, such as a surgeon's unauthorized removal of a wart. Restatement (Second)

of Torts § 15 cmt. a, at 27 (1965).

¶ 32           But the complaint in this case alleges products liability, not battery, and "bodily

harm" is relevant only to battery. Section 15 of the Restatement, which defines "bodily harm,"

is in topic 1, "The Interest in Freedom From Harmful Bodily Contact"; which in turn is in

chapter 2, "Intentional Invasions of Interest in Personality"; which in turn is in division one,

"Intentional Harms to Persons, Lands, and Chattels." Section 7(3), by contrast, which defines

"physical harm," is in chapter 1 of division one, a chapter entitled "Meaning of Terms Used

Throughout the Restatement of Torts." Because "bodily harm" has a more limited applicability

than "physical harm," and because the terms are separately defined in different contexts, they are

not synonymous.      A cause of action for products liability requires not "bodily harm" but

"physical harm" (Restatement (Second) of Torts §§ 388, 402A(1) (1965)), a physically impairing

loss or detriment (Restatement (Second) of Torts § 7(2), (3) (1965)). We see no evidence that

the pleural plaques and interstitial fibrosis that showed up in Joseph Sondag's X-rays are, to him,

a physically impairing loss or detriment.

¶ 33           Granted, Julie Grant and Phyllis Sondag testified they had noticed Joseph Sondag

suffering from shortness of breath, but we are aware of no evidence that the pleural plaques and

interstitial fibrosis had caused these episodes of shortness of breath. After all, Joseph Sondag is




                                               -9-
82 years old, and he has been a smoker. And despite that, he has an "excellent diffusion

capacity."

¶ 34            Plaintiffs might counter that Joseph Sondag would have been even healthier had

he not been exposed to defendant's asbestos-containing tape. Allegedly, in the course of his

work as a plasterer, he inhaled asbestos fibers from the tape, and these asbestos fibers made

lacerations inside his lungs. Interstitial fibrosis is a scarring of alveoli, tiny air sacs in the lungs,

and, necessarily, any air sac that is scarred cannot do its work of carrying oxygen into the

bloodstream. So, with the scarring of each air sac, there is an incremental loss of function in the

sense that the particular air sac ceases to function.

¶ 35            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. To qualify as "physical harm," the

alteration of the body must have a detrimental effect in a more practical sense, such as by

causing noticeable respiratory symptoms. See Ackison v. Anchor Packing Co., 897 N.E.2d 1118,

1125 (Ohio 2008); Giffear, 632 A.2d at 887-88; Owens-Illinois v. Armstrong, 591 A.2d 544, 561

(Md, Ct. Spec. App. 1991), aff'd in part and rev'd in part on other grounds, Owens-Illinois, Inc.

v. Armstrong, 604 A.2d 47 (Md 1992); Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 4, Reporters' Note to cmt. c, at 59-60 (2010) ("An unfortunate and

aberrational exception to the self-correction of small or trivial harms explained in this Comment

is asbestos claims by plaintiffs who suffer no clinical symptoms but who have abnormal lung X-

rays, a condition known as pleural plaque. *** Some courts have responded by requiring that an

asbestos plaintiff prove the existence of clinical symptoms before sufficient bodily injury

exists.").



                                                 - 10 -
¶ 36           Joseph Sondag has only abnormal lung X-rays, with no clinical symptoms.

Because plaintiffs presented no evidence of "physical harm"—an essential element of their cause

of action (see A, C & S, 131 Ill. 2d at 443; Woodill, 58 Ill. App. 3d at 355; Restatement (Second)

of Torts § 388 (1965))—the trial court should have granted defendant's motion for a directed

verdict. See Ramos v. Pyati, 179 Ill. App. 3d 214, 221 (1989); Rowe v. Illinois Power Co., 154

Ill. App. 3d 174, 178 (1987). Of course, we are supposed to regard all the evidence in the light

most favorable to plaintiffs (see Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510

(1967)), but plaintiffs presented no evidence of "physical harm" that we could regard in a light

most favorable to them. Therefore, a verdict in their favor could not possibly stand. See id.

¶ 37                                   III. CONCLUSION

¶ 38           For the foregoing reasons, we reverse the trial court's judgment.

¶ 39           Reversed.




                                              - 11 -
¶ 40           JUSTICE HARRIS, specially concurring in part, dissenting in part.

¶ 41           I agree that a portion of the jury's verdict should be reversed.      However, I

respectfully disagree with the majority's invocation of section 388 of the Restatement (Second)

of Torts and its corresponding analysis of damages in this case for two reasons.

¶ 42           First, the majority premises its analysis on the assumption the jury awarded

damages based on the mere presence of pleural plaques and interstitial fibrosis in Joseph

Sondag's lungs. It then finds these conditions do not constitute a "physical harm" as defined by

the Restatement (Second) of Torts because they did not have a detrimental effect. However,

plaintiffs did not request damages simply for the changed condition of Joseph Sondag's lungs.

Instead, they requested damages for specific claims of actual harm. Joseph Sondag claimed a

shortened life expectancy, loss of a normal life, and pain and suffering. Phyllis Sondag claimed

the loss of Joseph Sondag's society and companionship as well as medical expenses. I would

find that except for the requested medical expenses, the jury's award of damages was simply

unsupported by the evidence.

¶ 43                The only testimony suggesting Joseph Sondag was symptomatic came from

family members who commented on his shortness of breath. However, there was no expert

testimony establishing a causal link between the family's observations and Joseph Sondag's

asbestosis. In my view, this was a case where expert testimony was necessary to establish a link

between the two given the complexity of Joseph Sondag's medical and smoking history. See

Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 59 (2000) (expert testimony was necessary in order to

establish a relationship between two separate injuries).     Ultimately, the record contains no

evidence that Joseph Sondag has or will experience a shortened life expectancy, loss of a normal

life, or pain and suffering. Because Phyllis Sondag's claim of loss of society and companionship



                                              - 12 -
is derivative of Joseph Sondag's claims, it too fails due to a lack of supporting evidence. In my

view, the jury's award of damages for these unsupported claims should be reversed on that

simple basis.

¶ 44               Second, the majority holds that a plaintiff in a products liability action based on

negligence must establish "physical harm" as defined in section 7(3) of the Restatement (Second)

of Torts. While the majority correctly notes section 388's use of the term "physical harm," it

proceeds to analyze Joseph Sondag's lung condition using the separately defined term, "harm."

However, the term "harm" does not appear in the text of section 388. Section 388 refers only to

"physical harm." In the context of the definition of "physical harm" in section 7, comment e to

that section states as follows:

                          "e. Physical harm. The words 'physical harm' are used to denote

                   physical impairment of the human body, or of tangible property,

                   which is to say land or chattels. Where the harm is impairment

                   of the body, it is called 'bodily harm,' as to which see § 15."

                   (Emphasis added.) Restatement (Second) of Torts § 7 cmt. e (1965).

Here, I note my disagreement with the majority's assertion "bodily harm" is "relevant only to

battery." Indeed, the authors of section 388 specifically refer to "bodily harm" in comment e,

"Ambit of liability," where the term "bodily harm" is used interchangeably with "physical harm."

Restatement (Second) of Torts § 388 cmt. e (1965). Continuing with my analysis, section 15

states: "Bodily harm is any physical impairment of the condition of another's body, or physical

pain or illness." Restatement (Second) of Torts § 15 (1965). Comment a to section 15 then

states, in part:

                   "There is an impairment of the physical condition of another's



                                                   - 13 -
               body if the structure or function of any part of the other's body

               is altered to any extent even though the alteration causes no

               other harm." (Emphasis added.) Restatement (Second) of Torts

                § 15 cmt. a (1965).

The emphasized portion of comment a above appears to accurately describe the condition of

pleural plaques and interstitial fibrosis in Joseph Sondag's lungs. They are changes to the

structure of his lungs, even though they have "cause[d] no other harm." Thus, it appears Joseph

Sondag suffered a "bodily harm" (as defined in section 15), which is a form of "physical harm"

as defined in section 7 and used in section 388. If this is correct, then contrary to the majority's

analysis, the "physical harm" requirement in section 388 was met by plaintiffs. However, as

noted above, Joseph Sondag did not request an award of damages based on the mere presence of

these conditions in his lungs, and so, in my view, the issue of whether he suffered a "physical

harm" pursuant to section 388 is academic.

¶ 45           I also dissent in part from the majority's reversal of the judgment. As I previously

explained, the evidence fails to support the jury's verdict for plaintiffs except for its award of

medical expenses. In a single line on the verdict form, the jury awarded damages to Phyllis

Sondag in the total amount of $70,000. Phyllis Sondag claimed damages for the loss of Joseph

Sondag's society and companionship as well as medical expenses. Based on my review of the

record, I find plaintiffs presented sufficient evidence to justify an award of $67,000 for medical

expenses. Dr. Rossi testified about the medical monitoring of Joseph Sondag's lung condition

with chest X-rays and CT scans and the recommended annual monitoring in the future. In

closing argument, plaintiffs' counsel suggested an award of $67,000 for medical expenses and




                                               - 14 -
explained how he arrived at this amount. Here, the evidence supported only an award for

medical expenses in the amount of $67,000, and I would reduce the judgment accordingly.




                                            - 15 -
