Jury finds for worker who suffered disabling lung disease from exposure to butter popcorn flavoring

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Recent Cases: Food & Beverages

October/November 2010, Volume 29, No. 5

Jury finds for worker who suffered disabling lung disease from exposure to butter popcorn flavoring 

Solis v. BASF Corp., Ill., Cook Co. Cir., No. 2006-L-012105, Aug. 13, 2010.

Gerardo Solis worked at Flavors of North America, a flavoring plant, from 1989 to 1998, and at Flavorchem, another flavoring plant, from 1998 to 2006. While at both plants, he was exposed to diacetyl, an ingredient used in butter flavoring for microwave popcorn. In 2006, at age 41, Solis was diagnosed with bronchiolitis obliterans—a rare and irreversible lung disease caused by exposure to diacetyl fumes. He now has only 25 percent of his normal lung capacity and will likely need a lung transplant within the next 10 years. Solis incurred unspecified medical expenses. His future medical and life-care costs are estimated at about $2.34 million. At the time he was forced to leave work, he was earning about $57,300 annually as a supervisor in the plant’s mixing department. He is now permanently disabled.

Solis sued 11 companies that manufactured diacetyl or supplied it to the plants where he worked, including BASF Corporation, which supplied diacetyl to Flavorchem. The plaintiff alleged that the chemical was unreasonably dangerous and that the defendants failed to warn of the health hazards associated with it.

The other defendants in the case settled for confidential amounts, and trial proceeded solely against BASF.

Solis offered evidence that a rat inhalation study involving diacetyl conducted by BASF’s German parent corporation in 1993 revealed injury to the rats’ lung tissue. The plaintiff asserted that the study results, which were not disclosed, were consistent with the findings of rat studies conducted by the National Institute for Occupational Safety and Health in the early 2000s.

The defense argued that Solis was negligent in failing to use a respirator consistently and read the chemical’s Material Safety Data Sheets.

The jury awarded $32 million, finding BASF 95 percent liable and Solis 5 percent at fault. After apportionment of fault, the verdict totals $30.4 million.

The plaintiff’s experts were Allen Parnet, occupational medicine, and Kathy Allison, life-care planning, both of Kansas City, Mo.; David Egilman, internal medicine/public health, Providence, R.I.; Ved Yadava, pulmonology, Chicago, Ill.; and Jack Ward, economics, Prairie Village, Kan.

Plaintiff’s Counsel

Kenneth B. McClain,
Steven E. Crick,
Christopher R. Miller,
Scott Hall, and
Scott A. Britton-Mehlisch, all of Independence, Mo.
Jason H. Rubens, Chicago, Ill.
Toby P. Mulholland, Chicago, Ill.

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