Appeals court tosses $245K asbestos verdict for plasterer who judges said suffered no harm

By Dan Churney | Jun 24, 2016

A state appellate panel in Springfield has scrapped a jury verdict that awarded $245,000 to a man whose lungs were scarred by asbestos, saying, despite the scarring, they did not believe the man suffered any impairment. 

The June 20 ruling was authored by Justice Thomas Appleton, of the Fourth District Illinois Appellate Court, with concurrence from Justice Lisa White and partial concurrence from Justice Thomas Harris Jr. The ruling overturned a jury verdict in downstate McLean County Circuit Court in Bloomington awarding $245,000 to Joseph Sondag and his wife, Phyllis. 

The Sondags filed suit in 2008 against the Milwaukee-headquartered Sprinkman Sons Corporation and the Ohio-based company Tremco Inc. Joseph Sondag said he worked as a plasterer from 1957 to 1983, frequently using a drywall tape made by Tremco that allegedly contained asbestos. 

Sondag visited his physician in 2007, complaining of dizziness, sweating and a disturbance of the inner ear. A computerized tomography scan and an X-ray were taken of his chest, revealing pleural plaques and interstitial fibrosis – essentially, scarring of the air sacs in his lungs. The physician said he believed the scarring was caused by exposure to asbestos. Sondag filed suit the next year. 

The case went to trial in February 2014 before Circuit Judge Rebecca Foley. Sondag’s physician testified Sondag never complained of, nor exhibited, any symptoms of lung disease; he suffered no distress and was able to breathe well for a man of his age, who had been a smoker. The physician pointed out Sondag could run up two flights of stairs without shortness of breath and the lung scarring had not worsened since it was detected. On the other hand, Sondag’s wife and daughter both testified Sondag often had trouble catching his wind. 

Before the jury started deliberating, Tremco asked Foley to order a directed verdict against Sondag, contending Sondag did not present any evidence he suffered physical harm from the scarring. The judge refused and the jury came back with verdicts for Sondag, awarding him and his wife $245,000. 

Defendants appealed, again arguing there was no evidence Sondag suffered any adverse effect from the lung damage. Appellate Justice Appleton agreed. 

“They (the scars) 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. It appears that, but for the X-ray and CT scan, he would have remained blissfully unaware of any condition in his lungs,” Appleton observed. 

Appleton added that Sondag’s suit involved a claim of product liability, and for such a claim “physical harm is an essential element." However, that element was lacking in Sondag's suit. 

Justice Harris agreed with Appleton and White that there is no indication Sondag has or will suffer, because of the scarring. However, Harris broke with his fellow justices by saying the Sondag couple should be permitted to keep $67,000 of the jury's award for medical costs incurred in monitoring Joseph's lung condition.

 The Sondags are represented by the Bloomington firm of Wylder Corwin Kelly LLP, which advertises itself as a firm with experience pursuing asbestos cases. Defendants are defended by the Peoria firm of Heyl, Royster, Voelker & Allen.

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