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An Illinois appeals court has reversed a jury’s $30.4 million award to an employee at a flavoring plant where diacetyl was used. The question: When did the worker first know that his breathing problems could have been caused by his workplace?
In 2010, a Chicago jury awarded Gerardo Solis $32 million in damages from BASF Corp., a distributor of diacetyl that sold the flavoring used in microwave popcorn and other food products to Solis’ employer, Flavorchem. The jury said Solis was 5% at fault, so it subtracted $1.6 million from the damage award.
To this day, it’s still the largest individual verdict in a popcorn lung disease case.
In 2006, doctors diagnosed Solis with bronchiolitis obliterans, an incurable lung disease that often requires victims to receive a lung transplant.
Solis sued BASF in 2007.
The company says the jury award should be thrown out because the two-year statute of limitations for Solis to file a lawsuit had expired. The trial court had ruled that the statute of limitations had not run out and directed the jury to consider the case in that light.
BASF says, even though Solis didn’t receive his official diagnosis until 2006, he knew before then that his work was causing him to have severe breathing problems.
Right off the bat, the appeals panel said previous Illinois court decisions said an official diagnosis isn’t required to start the statute of limitations clock. An injured person “need not know the full extent of [her] injuries before the statute of limitations is triggered.”
The court then considered the following facts presented by BASF at trial:
- Between 2000 and 2004, Solis’ symptoms were severe: He had several emergency room visits and a period of hospitalization.
- A pulmonary function test provided to Solis by his employer in 2004 showed he had decreased lung function. A doctor recommended Solis be taken out of a certain area of the Flavorchem plant as a result.
- In December 2004, Solis met with his own pulmonologist. He told the doctor “he was having some problems while he was at work with breathing.”
- Sometime in late 2004 or mid-2005, Solis filled out a medical questionnaire. He was asked if there were particular tasks in his job that he felt were likely to cause breathing problems. He checked “yes.”
In response, Solis said he simply thought he had severe asthma and never connected his condition with anything “wrongful” caused by the workplace.
The appeals court concluded the lower court erred and it should be up to a jury to decide whether Solis concluded he had severe asthma from a non-occupational cause or if he knew there was a work-related cause to his breathing problems.
The case now goes back to a lower court for retrial.
What do you think about the court’s decision? Let us know in the comments below.
(Solis v. BASF, IL Appeals Court 4th Div., No. 2006 L 012105, 10/4/12)