An Illinois appellate court overturned a $30 million verdict in favor of a chemical-flavoring plant worker who claimed that a chemical used in popcorn butter flavoring caused him permanent lung damage. The verdict in Solis v. BASF Corporation was reportedly the largest in a series of popcorn flavoring lawsuits. The appellate court reviewed the question of whether Illinois’ statute of limitations barred the plaintiff’s claim, and ruled that the trial court erred by rendering a directed verdict for the plaintiff on that issue.
The plaintiff, Gerardo Solis, began a nearly two-decade career in the flavoring industry in 1987. His job duties, according to the court’s opinion, often involved working with or near butter flavorings containing the chemical diacetyl. Solis worked at Flavorchem from 1998 to 2006. He spent two years as a compounder, which involves mixing different ingredients to create a final flavor product. He was then promoted to supervisor, but continued primarily working in the area of the plant that produced powder flavorings. He claimed that he noticed an increase in the plant’s use of diacetyl, particularly in butter flavorings for popcorn, beginning in 2000, and that he experienced significant exposure to the chemical from 2000 to 2004.
Diacetyl provides the buttery flavor and aroma in popcorn and other food products. It has been linked to respiratory problems in workers with prolonged exposure, including bronchiolitis obliterans, an inflammation of the small airways in the lungs. This can cause a permanent loss of pulmonary function in some cases. A recent study also found a link between diacetyl and a brain protein believed to contribute to Alzheimer’s disease. Solis received a diagnosis of bronchiolitis obliterans in June 2006. He allegedly suffered permanent lung damage and was eventually told he needed a lung transplant.
BASF Corporation supplied diacetyl to Flavorchem at various points in the 1990’s and 2000’s. Solis sued BASF for failure to warn of diacetyl’s health risks, adding BASF to a lawsuit filed in November 2006 via an amended complaint filed in August 2007. Solis alleged that the materials safety data sheets (MSDSs) provided to Flavorchem by BASF for diacetyl did not disclose studies from the 1990’s showing the respiratory risks associated with the chemical. By the trial date, BASF was the only remaining defendant. The jury found BASF 95% at fault and returned a $32 million verdict.
BASF appealed on three questions: whether the trial court erred in granting a directed verdict to the plaintiff on a statute of limitations defense, whether the plaintiff showed sufficient proof that diacetyl provided by BASF caused his injuries, and whether the court improperly instructed the jury about BASF’s duty to warn of diacetyl’s hazards. The question regarding the statute of limitation involved whether the plaintiff learned of his injuries more than two years before he added BASF to the lawsuit. The court held that a formal diagnosis of bronchiolitis obliterans was not necessary to trigger the statute of limitations, and that Solis had reasonable knowledge of his injuries when his symptoms began, as early as 2000. It therefore held that the trial court erred regarding the statute of limitations. It reversed the verdict and remanded the case for a new trial, leaving all the other issues open for reconsideration by the trial court.
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