Solis v. BASF Corp.

• Decision Date: 04 October 2012
• Docket Number: No. 1–11–0875.,1–11–0875.
• Citation: 979 N.E.2d 419
• Parties: Gerardo SOLIS, Plaintiff–Appellee, v. BASF CORPORATION, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

979 N.E.2d 419

Gerardo SOLIS, Plaintiff–Appellee,

v.BASF CORPORATION, Defendant–Appellant.

No. 1–11–0875.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 4, 2012.

John N. Scholnick, Neil Lloyd, Heidi K. Oertle, and Shelley L. Merkin, Schiff Hardin LLP, Chicago, IL, for appellant.

Kenneth B. McClain, Humphrey, Farington & McClain, Independence, Susan Ford Robertson, Robertson Law Group, Kansas City, MO, for appellee.

Justice EPSTEIN delivered the judgment of the court, with 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),¹ 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.

¶ 12 BASF 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)² 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,...