Court tosses $30.4M ‘popcorn lung’ verdict

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An Illinois court decided Thursday that chemical company BASF is entitled to a new trial on claims that its butter flavoring product caused a plant worker’s “popcorn lung,” a ruling that wipes out a $30.4 million jury verdict.

The Illinois Appellate Court in Solis v. BASF decided that plaintiff Gerardo Solis should not have been granted a directed verdict on BASF’s defense that the plant worker’s product liability claims were time-barred.

“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,” wrote 1st District Justice James Epstein in Thursday’s decision.

Solis worked in food processing plants for nearly 20 years. In 2006, the 45-year-old was diagnosed with bronchiolitis obliterans, which left him with only 25 percent of normal lung capacity. Solis alleges that his lungs were injured while he worked with diacetyl, a synthetic chemical used in artificial butter flavoring. BASF is one of the distributors that supplied diacetyl to one of Solis’s employers, Flavorchem.

On Nov. 17, 2006, Solis filed product liability claims in state court against 20 defendants. The original complaint did not include BASF. Solis added BASF as a defendant in an amended complaint filed Aug. 30, 2007.

In his lawsuit against BASF, Solis asserted a claim for negligence, as well as strict liability claims based on failure to warn and defective design. As a defense, BASF argued that Solis’s claims were barred by the state’s two-year personal injury statute of limitations.

BASF was the only defendant to go to trial. The trial court directed a verdict in favor of Solis on BASF’s statute of limitation defense. In August 2010, a Cook County jury returned a verdict of $32 million, finding Solis 5 percent at fault, and BASF 95 percent at fault.

On appeal, BASF argued that the directed verdict on its defense was improper because there was evidence showing that Solis knew of his injury and its cause more than two years before he sued BASF.

The state appellate court agreed.

“At trial, Solis confirmed that in late 2004 or mid-2005, he felt that certain chemicals caused his breathing problems, and his health questionnaire listed diacetyl as a chemical that was ‘likely to cause breathing problems,’” Justice Epstein wrote. “Solis’s testimony – which itself is sometimes contradictory – either creates a factual dispute or raises questions about his credibility.”

Solis’s attorneys tried to limit the damage by proposing that any proceedings on remand should be limited to the question of their client’s liability, leaving the damages award to stand.

But the court found that the trial judge had committed several other errors that required a retrial.

“The evidentiary and instructional errors are intertwined with the extent of BASF’s liability, especially with regard to the scope of BASF’s duty to warn, and those issues affect the jury’s determination on damages,” Epstein wrote. “A liability-only retrial is therefore inappropriate.”

The news is not all bad for the plaintiffs’ bar on this front. Recently, a federal jury in Colorado awarded more than $7.2 million to a man who was diagnosed with “popcorn lung” after consuming multiple bags of popcorn daily for several years.