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Gerardo Solis v. Basf Corporation

October 4, 2012

GERARDO SOLIS,
PLAINTIFF-APPELLEE,
v.
BASF CORPORATION,
DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Epstein

Appeal from the Circuit Court of Cook County No. 2006 L 012105 Honorable Clare E. McWilliams, Judge Presiding.

JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.

OPINION

¶ 1 In this personal injury case, plaintiff Gerardo Solis claims that his lungs were injured while he worked with diacetyl, a synthetic chemical used in artificial butter flavoring. Solis brought negligence and strict liability claims for failure to warn and defective design against BASF Corporation (BASF), one of the distributors that supplied diacetyl to Solis's employer, Flavorchem. The jury returned a verdict for Solis, and BASF now appeals. BASF raises a host of legal and evidentiary errors, which it claims are the basis for a judgment as a matter of law or at least a new trial. Most central to our resolution of this appeal, BASF claims that the trial court erred by directing a verdict in favor of Solis on BASF's statute of limitations defense, where BASF presented evidence that Solis was aware of his lung injury and its wrongful cause more than two years before he filed suit. Because we find error in the trial court's decision to direct a verdict in favor of Solis on the statute of limitations question, we reverse and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 We provide an overview of the relevant facts, and we explore the trial testimony in greater detail, as necessary, as part of our analysis. BASF primarily argues that the evidence was insufficient as a matter of law to support Solis's claims, and we therefore focus on the evidence presented by Solis, as the parties have on appeal.

¶ 4 Solis's Employment History

¶ 5 Gerardo Solis worked in the flavoring industry for nearly 20 years for three different Illinois employers. From 1987 to 1989, Solis worked as a quality control technician and assistant supervisor at Olmarc Packaging (Olmarc), which packaged cake mixes, cereals, microwave popcorn, and similar foods for companies like Pillsbury. Solis sometimes worked in a production area at the Olmarc plant where butter flavorings were mixed with other ingredients.

¶ 6 From 1989 to 1998, Solis worked at Flavors of North America (FONA), which made flavorings (including cherry, blueberry, vanilla, and butter) for food ingredients. Solis started as a compounder, a job where he mixed different ingredients into a finished form, before becoming a supervisor in 1991. Solis worked in two parts of the production area: the spray dry area, where he would heat a flavored liquid until it became a powder; and the liquids and powders area, where various pieces of equipment were used to make flavoring, including butter flavoring. As a compounder and supervisor in the production area, Solis worked with diacetyl and other chemicals, including acetoin, butyric acids, and benzaldehyde.

¶ 7 From 1998 to 2006, Solis worked at Flavorchem, another manufacturer of flavorings.

Solis again worked as a compounder for approximately two years and then was promoted to a supervisor. In both positions, Solis spent about 90% of his time in the powder area making powdered flavorings, and he worked in the liquids area for about 10% of his time. In 2000, Solis noticed an uptick in the use of diacetyl in butter and other flavoring. Solis testified that his "main exposure" to diacetyl in butter flavors was from 2000 to 2004, and from 2004 to 2006, he was around diacetyl less often when there was an increase in hiring at Flavorchem. Solis worked with a variety of chemicals, including acetoin, benzaldehyde, and butyric acid. While he was mixing products, Solis would sometimes wear a dust mask or a cartridge respirator, but he would take this off while walking around the production area.

¶ 8 BASF's Supply of Diacetyl to Flavorchem

¶ 9 BASF distributed diacetyl during parts of the 1990s and 2000s. BASF purchased diacetyl from BASF's indirect German parent company, BASF Aktiengesellschaft (AG),*fn1 which had it manufactured by a third-party contractor. BASF sold no diacetyl to Olmarc or FONA while Solis worked there. BASF sold diacetyl to Flavorchem to make both liquid and powdered flavors, but Flavorchem purchase records (showing the total amount of diacetyl Flavorchem purchased from BASF, by date) do not specify how much diacetyl was used to make each type of flavoring.

¶ 10 The batch records at Flavorchem (identifying the supplier of the diacetyl used in each batch) show that from 2003 until June 2006 (when Solis left), Flavorchem used 4,133.57 pounds of diacetyl in the powder room, of which BASF supplied 8.4% (347.55 pounds). These were the only batch records available: the president of Flavorchem, Ken Malinowski, testified that before January 1, 2003, there was no record of which company's diacetyl was used in particular batches of flavorings. During Solis's tenure at Flavorchem, from 1998 to 2006, 9,934.5 pounds of diacetyl were used in the powder room, meaning that BASF supplied at least 3.5% of the diacetyl used in the powder room. Dr. David Egilman, an expert for Solis, testified that if he assumed that the BASF diacetyl in the plant was 2.5% to 3% of the diacetyl supplied to Flavorchem during the time Solis worked there, that amount would have been enough to cause Solis's disease (bronchiolitis obliterans), even "if it was his only exposure."

¶ 11 Solis testified that from 2000 to 2004, he used diacetyl on a daily basis in the powder mix area. According to a health and hygiene study conducted by National Jewish Hospital (NJH) at Flavorchem, the highest levels of diacetyl in the Flavorchem plant were in the dry mix or powder area, where Solis spent the majority of his time. Solis recalled using diacetyl supplied by Polarome, Citrus & Allied (C&A), O'Laughlin, and Elan. He estimated that 50% of the diacetyl used in the plant between 2000 and 2004 was BASF diacetyl. Solis testified on cross-examination that his estimate was based on his memory that BASF's label appeared on barrels of diacetyl and that many of the formulas he mixed contained diacetyl. On redirect examination, Solis testified his estimate was confirmed by review of Flavorchem purchase records that purportedly showed the entire amount of diacetyl (used to make powder and liquid flavorings) that BASF supplied to Flavorchem.

¶ 12BASF MSDS and the LC50 Study

¶ 13 Solis's failure-to-warn claims center on material safety data sheets (MSDSs) for diacetyl that BASF provided to Flavorchem. Federal Occupational Safety and Health Administration (OSHA) regulations require sellers and distributors of chemicals to provide MSDSs to purchasers, and these purchasers must make MSDSs available to their employees. OSHA's regulations also require employers to train employees to read and understand MSDSs. As Dr. Sandler, an expert witness for BASF, explained, employers "must take these MSDSs, teach the employees how to read them and what they mean" and "must train them as to the labels that are provided."

¶ 14 Solis claims that BASF's MSDS for diacetyl failed to adequately disclose information from a 1993 study, performed by AG, entitled "Study on the acute inhalation toxicity LC50 of Diacetyl FCC as a vapor in rats 4-hour exposure." The "Lethal Concentration 50" (LC50)*fn2 study showed that "[d]uring necropsy all animals that died showed general congestion," that "[e]xposure to high concentration led to atelactasis and bloody edema of the lungs, bronchial edema and intensified hydrothorax," and that "the mid and high concentration groups revealed extensive hyperemia of the lung, *** [and] moderate emphysema and focal hyperemia of the lungs." The study concluded that the level at which 50% of the rats died (between 2.25 and 5.2 mg/l exposure for 4 hours) fell within a concentration range classified as "moderately toxic."

¶ 15 BASF received its MSDSs for diacetyl from AG. From 1995 to 2006, BASF's MSDS reported the study data as "Rat, Inhalation LC50 -- 2.25-5.2 MG/L" with the designation "Moderately Toxic." BASF's MSDS stated that "[i]nhilation causes irritation to the respiratory tract" and also reported that "[t]here are no known chronic effects associated with this material." The MSDS advised using an "[a]pproved organic vapor mist respirator as necessary" and "local exhaust to control vapors/mists." In May 2006, the California Department of Health Services contacted BASF about revisions to the MSDS for diacetyl. BASF subsequently changed its MSDS in June 2006 to add the phrase "Overexposure to high concentrations may cause pulmonary irritation that could be associated with lung disease (bronchiolitis obliterans)."

¶ 16 At Flavorchem, Solis was responsible for giving employees instruction on where to access MSDSs, and he would sometimes read various MSDSs with employees so that they had "some understanding" of what the warnings said. When asked if he read any MSDSs on diacetyl at Flavorchem, Solis explained that "[t]here was no need" because he had read "a lot of MSDSs" at FONA, including MSDSs for the diacetyl. As to the MSDS, Dianne Hamernick, a Flavorchem employee, testified that if Flavorchem had the study in hand as of 2001, it would have "updated" and "changed" the MSDS and "seen if additional personal protective equipment was needed."

¶ 17 While the parties agree that BASF received a copy of the LC50 study from AG no earlier than 2001, Solis introduced evidence regarding the inability of industry groups to obtain the study (or similar information) in the 1990s. Solis presented testimony from John Hallagan, general counsel for the Flavor and Extract Manufacturers Association (FEMA), an industry trade organization. He testified that FEMA maintains a database that contains safety information for diacetyl, available to members of FEMA and the Research Institute for Fragrance Materials (RIFM), the scientific arm of the flavoring industry. Hallagan testified that had FEMA been provided the LC50 study in the late 1990s, it would have disseminated the information to diacetyl users. Solis's counsel solicited testimony from Solis's expert witnesses that if BASF had "come forward" with the study in the 1990s, the medical and scientific community could have discovered the causal association between diacetyl and lung injury before 2002.

¶ 18 Solis's Lung Condition and Diagnosis with Bronchiolitis Obliterans

¶ 19 In 1990, a year after starting work at FONA, Solis was diagnosed with asthma. Solis testified that his asthma was under control at the time and he was still active, though he saw a doctor at least once a year between 1990 and 1999 for treatment. Solis testified that as of 1998, he had shortness of breath, coughing, and wheezing. In 1999, Solis took a pulmonary function test as part of an initial health clearance at Flavorchem. According to Solis's expert, Dr. Allen Parmet, the test showed "obstructive lung disease," though he described Solis's symptoms as "manageable" prior to 2000.

¶ 20 In 2004, Flavorchem management invited doctors from NJH, who provide "expert advice" to flavoring plants, to do an assessment of the Flavorchem facility and workers' health at the plant. As part of the visit, Solis received another pulmonary function test. The test showed decreased lung function, and Dr. Cecile Rose, a pulmonologist at NJH, recommended that Solis be taken out of the dry mix area. Solis testified that at this time, he did not associate his lung problems with his work. Sometime in late 2004 or mid-2005, Solis filled out a medical questionnaire in connection with one of NJH's visits. As part of the questionnaire, Solis was asked if he felt that particular tasks or processes in his job were likely to cause breathing problems, and he checked "yes." He also responded "yes" to the question "Are your symptoms worse at work?" Solis testified that at the time he filled out this questionnaire, he felt that working around certain chemicals, including diacetyl, "caused [his] breathing problems." In June 2006, Solis was told by Dr. Rose of NJH that he had the lung disease bronchiolitis obliterans, a rare lung disease in which the bronchioles, the branches near the end of the bronchial tree, are scarred, obstructing the airflow. Dr. Rose told Solis that his condition was caused by exposure to diacetyl at work, and Solis testified that this was the first time he understood that his lung condition was caused by chemical exposure.

¶ 21 Before his diagnosis, Solis's lung condition had been growing progressively worse since 2000, just as the diacetyl usage increased at Flavorchem. He visited the emergency room more often, his symptoms became more severe, and he was hospitalized for a few days. Drawing from results of Solis's lung function tests, Dr. Egilman explained that Solis had lost ten percent loss of lung function between 2000 and 2009. He noted that Solis was at a "risk of death" if he contracted a cold, small virus, or infection. According to Dr. Parmet, Solis was "permanently and totally disabled" and was in need of a lung transplant.

¶ 22 Proceedings Below

¶ 23 Solis initially filed suit on November 17, 2006, against 20 defendants, arguing that each was responsible for Solis contracting bronchiolitis obliterans from exposure to diacetyl. Solis filed an amended complaint on August 30, 2007, adding BASF as a party. BASF was the only remaining defendant at trial. After the jury returned a verdict of $32 million, finding Solis 5% at fault and BASF 95% at fault, the trial court denied BASF's posttrial motions for judgment notwithstanding the verdict or a new trial. This appeal followed.

¶ 24 ANALYSIS

¶ 25 BASF contends that it is entitled to a judgment as a matter of law, or at least a new trial, for three principal reasons. First, BASF argues that the trial court erred in directing a verdict in favor of Solis on BASF's statute of limitations defense, where there was evidence showing that Solis knew of his injury and its wrongful cause more than two years before he filed suit against BASF. Second, BASF argues that there was insufficient evidence of causation because Solis failed to show that diacetyl supplied by BASF was a substantial factor in causing his injury, and because Solis admitted that he did not read BASF's MSDSs at Flavorchem. Third, BASF argues that the jury was improperly instructed that BASF had a duty to warn the flavoring industry-and not just the users of its diacetyl-about the hazards of diacetyl. Apart from these issues, BASF argues that Solis failed to make the necessary showing that diacetyl was unreasonably dangerous in order to support his strict liability claims. BASF also raises several claims of evidentiary and instructional error, arguing that it is entitled to a new trial.

¶ 26 At the outset, we mark the bounds of our review on BASF's argument that it was entitled to judgment notwithstanding the verdict (judgment n.o.v.) and that it was improper for the trial court to enter a directed verdict in favor of Solis on the statute of limitations issue. "[I]t is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony." Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). A judgment n.o.v. or directed verdict is properly entered in those limited cases where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Internal quotation marks omitted.) Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 88; Maple, 151 Ill. 2d at 453. In ruling on a motion for judgment n.o.v. or directed verdict, "a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather it may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion." Maple, 151 Ill. 2d at 453 & n.1. If there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome, the court should not enter a judgment as a matter of law. Id. at 454. We review de novo the decision denying BASF's motion for judgment n.o.v. and the decision to direct a verdict for Solis. Id.; Lazenby v. Mark's Construction, Inc., 236 Ill. 2d 83, 100 (2010).

¶ 27 Statute of Limitations

¶ 28 BASF contends that Solis's claims are barred by the two-year personal injury statute of limitations. See 735 ILCS 5/13-202 (West 2008). In personal injury actions, the statute of limitations generally begins to run on the date of the injury. Golla v. General Motors Corp., 167 Ill. 2d 353, 360 (1995). In cases of exposure to harmful substances, however, plaintiffs generally do not "discover that they suffered any injury until long after the tortious conduct occurred," and courts apply the discovery rule "to prevent the unfairness of charging the plaintiff with knowledge of facts which were 'unknown and inherently unknowable.' "(Emphasis in original.) Id. at 367(quoting Urie v. Thompson, 337 U.S. 163, 169 (1949)); see Wayne P. Keeton, et al., Prosser & Keeton on Torts § 30, at 165-67 (5th ed. 1984); see also Clay v. Kuhl, 189 Ill. 2d 603, 611 (2000). The discovery rule "postpone[s] the commencement of the relevant statute of limitations until the injured plaintiff knows or reasonably should have known that he has been injured and that his injury was wrongfully caused." Golla, 167 Ill. 2dat 361. When a plaintiff asserts the discovery rule to delay commencement of the statute of limitations, he has the burden of proving the date of discovery. Gredell v. Wyeth Laboratories, Inc., 346 Ill. App. 3d 51, 58 (2004). According to BASF, Solis's claims were untimely because he knew or reasonably should have known of his "lung condition and its possible wrongful cause" more than two years before September 17, 2007, the date Solis filed his complaint against BASF.*fn3 The trial court disagreed and directed a verdict on the statute of limitations question in favor of Solis.

¶ 29 In this case, the trial court's directed verdict for Solis can stand if all the evidence, when viewed in its aspect most favorable to BASF, so overwhelmingly favors Solis that no contrary verdict based on that evidence could ever stand. Lazenby, 236 Ill. 2d at 100. "The issue of when a party knew or should have known both of the injury and that it was wrongfully caused is generally one of fact. [Citations.] Thus, in most cases, the time at which a party knows or reasonably should have known both of her injury and that it was wrongfully caused will be a disputed question for the trier of fact." Young v. McKiegue, 303 Ill. App. 3d 380, 387 (1999).

¶ 30 Solis contends that we can quickly dispense with the statute of limitations question because the evidence was undisputed that Solis was not diagnosed with bronchiolitis obliterans before 2006. It was this argument that convinced the trial court to direct a verdict for Solis. The court noted that because "the first time [Solis] became aware of [his diagnosis] was with Dr. Rose's note in 2006," the statute of limitations question was a "nonissue." In a posttrial order, the court reiterated that it entered a verdict in favor of Solis because he "was not officially diagnosed with [bronchiolitis obliterans] until 2006, and he filed this lawsuit in 2007."

¶ 31 We disagree that an official diagnosis was required to trigger the running of the statute of limitations. Our supreme court has explained that a plaintiff need not "know the full extent of [her] injuries before the statute of limitations is triggered." Golla, 167 Ill. 2d at 364. "[T]he limitations period commences when the plaintiff is injured, rather than when the plaintiff realizes the consequences of the injury or the full extent of her injuries." Id. The prior cases of this court and our supreme court make clear that an official diagnosis is not required to trigger the statute of limitations. In Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (1981), for example, the plaintiff sought treatment for breathing difficulties in 1957 and was told at that time that he had " 'lung problems.' " Nolan, 85 Ill. 2d at 163. There was some question whether plaintiff understood that his lung problems were occupationally caused based, in part, on information he might have received from his doctor. Id. at 165-66. In 1973, less than two years before he eventually filed suit, the plaintiff was diagnosed with asbestosis and was told that his condition was caused by exposure to asbestos materials at work. Id. at 166.

¶ 32 In applying the discovery rule, the court recognized that the statute of limitations can be triggered before an official diagnosis. The court noted that the plaintiff "could not possibly have been aware of his injury until, at the earliest, 1957, when the first symptoms began to appear." (Emphasis added.) Id. at 169. While the appellate court had held that the cause of action accrued when the plaintiff " 'knew or, in the exercise of reasonable diligence, should have discovered that he had contracted the disease asbestosis due to defendants' acts or omissions,' " the supreme court stated that the "preferred rule is that the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another." (Emphasis added.) Id. The court acknowledged that "[i]t was not until May 15, 1973, that he was told by a doctor that he had asbestosis and that his condition was caused by exposure to asbestos materials at work," but explained that "[t]he evidence is conflicting as to whether or when [the plaintiff] would have had sufficient information to reach such a conclusion earlier." (Emphasis added.) Id. at 171-72.

¶ 33 Nolan suggests that a definitive diagnosis coupled with an explanation of the cause of the illness will generally mark the endpoint of when the statute of limitations begins to run. But it does not follow that the statute of limitations cannot begin to run before an affirmative diagnosis. As this court has recognized, "Nolan and later precedent firmly establish that an affirmative diagnosis of an injury is not the bellwether that gives rise to a plaintiff's claim." Healy v. Owens-Illinois, Inc., 359 Ill. App. 3d 186, 194 (2005). For example, in Wilson v. Devonshire Realty of Danville, 307 Ill. App. 3d 801 (1999), the plaintiff argued that "she was immediately aware of symptoms of an illness but not the latent pulmonary disease, which was not diagnosed until April 1997." Wilson, 307 Ill. App. 3d at 805-06. The court rejected this claim, noting that plaintiff admitted that she had occupational asthma and multiple chemical sensitivity in 1995. Id. at 806.

The court reasoned that "the present case does not involve a plaintiff who failed to discover any injury but, rather, a plaintiff who failed to discover the full extent of her injuries before the expiration of the statute of limitations." (Emphasis in original.) Id.; see also Hutson v. Hartke, 292 Ill. App. 3d 411, 415 (1997) (concluding that the plaintiff knew or should have known of her injuries in a case involving exposure to ammonia fumes and explaining that it was "sufficient that she experienced an identifiable episode which irritated her nose and throat and started a pattern of coughing that subsequently worsened and continued for weeks," even if she did not know the "full extent of the injury that the ammonia fumes would cause").

¶ 34 As the foregoing discussion illustrates, to say that the statute of limitations question does not turn on an official diagnosis does not end our inquiry. We must decide if the facts establish one way or the other that Solis knew or reasonably should have known that he was injured and that the injury was wrongfully caused-or if there is a factual question that should have gone to the jury. In this case, it is undisputed that plaintiff had some knowledge of an injury (a severe condition in his lungs) at least by 2004. Pulmonary function tests in 1999 and 2004 showed that Solis had decreased lung function. Between 2000 and 2004, Solis's symptoms were severe: he had several emergency room visits, coughing fits, and a period of hospitalization. After 2000, Solis recognized his symptoms as being "outside the ordinary, outside of asthma."

¶ 35 The central question here, as in many cases related to exposure to harmful substances, is whether Solis knew or should have known that those symptoms had a wrongful cause. On appeal, Solis contends that he simply thought he had asthma, even if severe, and never connected his condition to any wrongful cause. The term "wrongful cause" refers to the point in time when "the injured party becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved." Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981). This standard "does not require knowledge on the part of plaintiff that the defendant's conduct fits the technical legal definition of negligence or that all the legal elements of a particular cause of action are otherwise satisfied." Mitsias v. I-Flow Corp., 2011 IL App (1st) 101126, ¶ 24. Instead, it is the reasonable knowledge of injury and its wrongful cause that imposes a "burden *** to investigate whether she has a viable cause of action." Id. ¶ 23; accord Martin v. A&M Insulation Co., 207 Ill. App. 3d 706, 710 (1990). Additionally, this court has recognized "that unless a clear definitive diagnosis is given by a doctor, in many instances it is a compilation or a series of statements, events or circumstances and thoughts that changes mere suspicion to reasonably knowing that a *** condition was wrongfully caused." LaManna v. G.D. Searle & Co., 204 Ill. App. 3d 211, 219 (1990).

ΒΆ 36 The evidence presented at trial reveals several indicators that before September 17, 2005, Solis had sufficient information about his injury and its cause to spark inquiry as to whether his injury might be legally actionable. In 2004, Flavorchem management invited doctors from NJH to do an assessment of the Flavorchem facility and workers' health at the plant. Solis testified that his understanding of the visit was that NJH was "doing some sampling" so that Flavorchem could get better ventilation and employees could get the correct respirators. As part of the visit, Solis received a pulmonary function test from NJH that showed decreased lung function, and Dr. Cecile Rose of NJH ...


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