Solis v. BASF Corp.
2012 IL App (1st) 110875
Ill. App. Ct.2012Background
- Solis, a long-time flavoring industry worker, alleged lung injury from diacetyl exposure at Flavorchem and distributors including BASF; BASF supplied diacetyl to Flavorchem from 2001, with records showing BASF in 3.5% of powder-room diacetyl used 2003–2006; Solis had prior asthma and progressive lung function decline beginning around 2000; Solis did not diagnose bronchiolitis obliterans until 2006 but reported work-related breathing problems earlier; trial court directed verdict for Solis on BASF’s statute-of-limitations defense; the jury later awarded Solis $32 million with BASF liable at 95%.
- Solis’s health history and NJH assessment in 2004–2005 showed decreased function and a recommendation to remove him from dry-mix area, though Solis did not initially connect this to work-related causes; Flavorchem records and Solis’s testimony tied BASF diacetyl to the powder area exposure; the LC50 study and BASF MSDSs formed core taxonomies of warning and causation issues; the case was tried on theories of negligence and strict liability, including failure to warn and defective design.
- The court reviews whether the discovery-rule-based statute of limitations was correctly applied to a toxic-exposure case, where discovery of injury and its wrongful cause can occur before formal diagnosis.
- The evidentiary record included expert testimony on causation under Thacker and Nolan frameworks, and whether BASF’s diacetyl exposure was a substantial factor in Solis’s bronchiolitis obliterans; the court addresses the admissibility and impact of post-incident MSDS changes and industry-wide warnings.
- On remand for a new trial, multiple instructional and evidentiary errors were identified, and the court concluded a liability-only retrial was inappropriate given the intertwined nature of liability and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations direction | Solis knew of injury and possible wrongful cause by 2004. | Solis knew too late; discovery rule not triggered. | Remand for new trial on limitations issue. |
| Causation—substantial factor | Frequent, proximate BASF diacetyl exposure caused injury; Thacker/Nolan applicable. | Exposure amount and other sources negate substantial factor. | Evidence supports causation; jury question on remand. |
| Failure-to-warn proximate causation | BASF’s warning could have changed employee awareness and safety actions. | Plaintiff did not read warnings; causation questionable. | Proximate causation for failure-to-warn issues alleged; not barred on record. |
| Instructional error (duty to warn scope) | Instruction properly confined duty to BASF’s distributors/users. | Expanded duty to entire flavoring industry. | Error in IPI 400.10 instruction; require narrower duty on remand. |
| Evidentiary issues (MSDS, reports) | Post-incident MSDS changes admissible to show notice/causation. | Remedial measures and certain documents were improper hearsay or foundation issues. | Several evidentiary errors; remand for new trial; some exhibits improper. |
Key Cases Cited
- Golla v. General Motors Corp., 167 Ill.2d 353 (1995) (discovery rule/timing of injury and wrongful cause in toxic-exposure cases)
- Knox College v. Celotex Corp., 88 Ill.2d 407 (1981) (standard for discovery of injury and wrongful cause in triggering limitations)
- Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161 (1981) (recognizes discovery rule starts before formal diagnosis; cause accrues when injured and cause known or should be known)
- Thacker v. UNR Industries, Inc., 151 Ill.2d 343 (1992) (adopts frequency, regularity and proximity test for causation in asbestos cases; applies to substantial-factor causation)
- Lazenby v. Mark’s Construction, Inc., 236 Ill.2d 83 (2010) (standard for whether directed verdict or judgment n.o.v. is appropriate; review de novo)
- maple v. Gustafson, 151 Ill.2d 445 (1992) (limits on when a verdict may be directed or a judgment notwithstanding the verdict)
- Poulos v. Lutheran Social Services of Illinois, Inc., 312 Ill. App. 3d 731 (2000) (limits on directing verdicts; credibility determinations)