Illinois Appellate Court Reverses $32 Million Verdict in Toxic Tort Case; Solis v. BASF Corp.

A lawsuit was brought on behalf of the plaintiff, Gerardo Solis, alleging negligence and strict liability because his lungs were injured by a synthetic chemical that he used while working in a flavoring company. At the trial court level, the judge entered a directed verdict in favor of Solis on the defendant distributor’s claim that the action was barred by the statute of limitations.

The Solis claim was that his lungs were injured while he worked with diacetyl, a synthetic chemical used in artificial butter flavoring. Solis’s claim was that the defendant BASF Corp. (BASF) and one of the distributors failed to warn of the dangerous product and was negligent in allowing its use by its employees.

After a jury heard this case at trial, it returned a verdict for $32 million in favor of Solis, and BASF appealed. At the core of the appeal was that BASF claimed that the trial court erred by directing a verdict in favor of Solis on BASF’s statute of limitations defense. BASF had argued that there was evidence that Solis was aware of his lung injury and its wrongful cause more than two years before this suit was filed.

Solis worked at the company or its affiliates for more than 20 years and around some of these products that he alleged were dangerous. He was told in June 2006 by a doctor that he had the lung disease, bronchiolitis and obliterans, a rare lung disease in which the bronchioles, the branches near the end of the bronchial tree, are scarred obstructing airflow. The doctor told Solis that this condition was caused by exposure to diacetyl at work.

At trial, Solis testified that this was the first time that he understood that his lung condition was caused by chemical exposure. However, before the diagnosis, Solis’s lung condition had been growing progressively worse since 2000. The use of diacetyl had steadily increased over the years at the company where Solis worked.

The lawsuit was initially filed on Dec. 17, 2006 against 20 defendants. BASF was the only remaining defendant at trial. The jury’s verdict of $32 million found Solis 5 percent at fault for his own harm and BASF 95 percent at fault. The trial court denied BASF’s post-trial motions for judgment notwithstanding the verdict or a new trial.

BASF on appeal contended that Solis’ claims were barred by the twp-year personal injury statute of limitations. See 735 ILCS 5/13-202 (West 2008). In cases of exposure to harmful substances, like this case, 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 the facts which were ‘unknown and inherently unknowable.'” Golla v. General Motors Corp., 167 Ill.2d 353, 360 (1995) and Yuri v. Thompson, 337 U.S. 163, 169 (1949).

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 the filing of the lawsuit. The trial court disagreed and directed the verdict in favor of Solis on the statute of limitations issue. The appellate court found that there was evidence presented at trial that revealed several indicators that before the lawsuit was filed, Solis had sufficient information about his injury and its cause to spark inquiry as to whether his injury might be legally actionable. The court decided to reverse because it found that the jury has the right to determine whether Solis reasonably concluded that he simply had severe asthma from some non-occupational cause, rather than whether he had information enough to inquire further as to some possible fault on the part of the defendant BASF.

The appellate court found that it was an error to direct a verdict in favor of Solis on the statute of limitations issue and therefore the case was reversed and remanded for a new trial. Solis’ argument that the reversal should be only on the statute of limitations and that the damages award should stand was not approved by the court. The appellate court found that the evidentiary and instructional errors were intertwined with the extent of BASF’s liability, especially with regard to the scope of its duty to warn and those issues affect the jury’s determination on damages. Therefore, the court found that a liability-only retrial would be inappropriate. Banovz v. Rantanen, 271 Ill.App.3d 910, 920 (1995), related to the exercise of discretion to order partial liability-only retrial where the amount of damages awarded to plaintiff was completely unaffected by error in failing to dismiss defendant’s counterclaims against one another.

Solis v. BASF Corp., 2012 IL App. (1st) 110875 (Oct. 4, 2012).

Kreisman Law Offices has been handling construction accident cases, work injury cases, car accidents, truck accidents, bicycle accidents, nursing home abuse lawsuits and medical negligence matters lawsuits for individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas including, Oak Lawn, Burr Ridge, Chicago (Greek Town), Chicago (Old Town), Chicago (Edgebrook), Norridge, Franklin Park, Elmhurst, Brookfield, Harvey, Flossmoor, Fox River Grove, St. Charles, Joliet, Lisle, Waukegan and Worth, Ill.

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