Motion 4 - product liability motion for directed verdict - Part 2

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2. Plaintiff Did Not Establish that He was Exposed to BASF Corporation-Supplied Diacetyl.

Plaintiff did not establish that he was exposed to any diacetyl supplied by BASF Corporation. The only link Plaintiff made between himself and BASF Corporation-supplied diacetyl is a spreadsheet listing which companies provided the diacetyl that Flavorchem used from 2003 through 2006. However, Plaintiff did not introduce any evidence that he was exposed to the diacetyl listed on this spreadsheet, and the fact that Flavorchem used diacetyl supplied by BASF Corporation during some of the years that Plaintiff worked for the company is irrelevant. See Naden v. Celotex Corp., 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 769 (1st Dist. 1989) (merely identifying that defendant's products were present at plaintiff's jobsite is insufficient to establish exposure).

Plaintiff also attempted to imply that he was exposed to BASF Corporation-supplied diacetyl because BASF Corporation sold diacetyl to Citrus & Allied, and Citrus & Allied sold diacetyl to Flavorchem. The only evidence Plaintiff introduced of these alleged second-hand sales to Flavorchem is the speculative testimony of Dr. Egilman, one of Plaintiff's expert witnesses. This testimony does not sustain Plaintiff's burden of proof because it is a new expert opinion that was not previously disclosed. Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 849, 923 N.E.2d 937, 950 (1st Dist. 2010). Nowhere in Plaintiff's answers to Rule 213 interrogatories did he indicate that one basis for Dr. Egilman's opinion that Plaintiff was exposed to diacetyl supplied by BASF Corporation was that BASF Corporation sold diacetyl to Citrus & Allied. See Copeland v. Stebco Prods. Corp., 316 Ill. App. 3d 932, 941, 738 N.E.2d 199, 208 (1st Dist. 2000) (“A party must disclose not only the specific opinion of his expert, but the bases of that opinion.”). If Plaintiff wanted to have Dr. Egilman testify at trial regarding BASF Corporation's sales of diacetyl to Citrus & Allied, “[P]laintiff had the responsibility to elicit that opinion at [Dr. Egilman's] deposition or place it in the 213 responses.” Wilbourn, 398 Ill. App. 3d at 851, 923 N.E.2d at 951.

This testimony also fails to support Plaintiff's burden of proof because it is pure speculation. See Friedman v. Safe Sec. Servs., Inc., 328 Ill. App. 3d 37, 46, 765 N.E.2d 104, 112 (1st Dist. 2002) (“Experts cannot base opinions on what may have occurred or what the expert believed might have happened in a particular case.”). Dr. Egilman did not know when BASF Corporation sold diacetyl to Citrus & Allied, how much diacetyl BASF Corporation sold to Citrus & Allied, what Citrus & Allied did with the diacetyl after it was purchased from BASF Corporation, or whether any of the diacetyl Citrus & Allied purchased from BASF Corporation was sold to Flavors of North America. (8/3/10 Trial Tr. (Egilman) at 110-111.) Because Dr. Egilman did not indicate a reliable, credible foundation for his conclusions that he was exposed to any BASF Corporation diacetyl at FONA, this testimony cannot sustain Plaintiff's burden of proving that Plaintiff was exposed to BASF Corporation-supplied diacetyl such that BASF Corporation owes a duty to Plaintiff. Krivanec v. Abramowitz, 366 Ill. App. 3d 350, 359, 851 N.E.2d 849, 856 (1st Dist. 2006).

B. BASF Corporation Did Not Fail To Warn Plaintiff.

As explained above, BASF Corporation had no duty to warn Plaintiff regarding diacetyl. However, even if BASF Corporation did owe Plaintiff a duty to warn, Plaintiff did not satisfy his burden of proving that BASF Corporation failed to adequately warn him based on the information available to BASF Corporation.

Plaintiff failed to offer sufficient evidence that BASF Corporation knew or should have known that diacetyl caused bronchiolitis obliterans at the time Mr. Solis was allegedly exposed to its product. In fact, Plaintiff's expert witness, Dr. Egilman, admitted that there is no medical literature stating that diacetyl causes bronchiolitis obliterans. (8/3/10 Trial Tr. (Egilman) at 121.)

Also, the evidence introduced in this case establishes that the earliest BASF Corporation could have known about the 1993 animal study was 2001, and Plaintiff did not introduce any evidence that BASF Corporation could have learned of potential hazards associated with diacetyl from sources other than the animal study. Dr. Egilman also admitted that BASF Corporation's MSDS for diacetyl refers to the data and test results from the animal study. (Id. at 170-71.) Accordingly, BASF Corporation included in its MSDS all of the relevant information that it had from the animal study.

C. BASF Corporation Did Not Proximately Cause Plaintiff's Injury.

Plaintiff also failed to prove that his lung condition was caused by exposure to BASF Corporation-supplied diacetyl. “[A] plaintiff alleging personal injury in any tort action must adduce sufficient proof that the defendant caused the injury.... [P]roof which relies on conjecture, speculation, or guesswork is insufficient.” Nolan v. Weil-McLain, 233 Ill. 2d 416, 430, 910 N.E.2d 549, 556 (2009).

1. Plaintiff Did Not Satisfy the Thacker Test.

Plaintiff cannot avoid judgment merely by establishing that he was present at the same site as BASF Corporation-supplied diacetyl. Id. at 432, 910 N.E.2d at 557; see Naden, 190 Ill. App. 3d at 415, 546 N.E.2d at 769. Rather, Plaintiff must come forth with evidence to meet the product exposure threshold known as the Thacker test. Thacker v. UNR Indus., Inc., 151 Ill. 2d 343, 359, 602 N.E.2d 449, 457 (1992) (citing Lohrman v. Pittsburgh Coring Corp., 782 F.2d 1156 (4th Cir. 1986) ). In Thacker, the Illinois Supreme Court held that no genuine issue of material fact exists unless a plaintiff establishes that he was frequently, regularly, and proximately exposed to a particular defendant's product. Id. There is no evidence in this case to establish that Plaintiff was exposed frequently, regularly and proximately to BASF Corporation-supplied diacetyl.

In fact, Plaintiff offered no evidence quantifying the levels of exposure Plaintiff may have had to BASF Corporation-supplied diacetyl. Dr. Egilman admitted that he does not know whether Plaintiff was, in fact, exposed to BASF Corporation-supplied diacetyl, and also testified that regardless of the amount of exposure Plaintiff had to BASF Corporation-supplied diacetyl (even if he had no exposure to BASF Corporation-supplied diacetyl), it was sufficient to cause Plaintiff's lung condition. (8/3/10 Trial Tr. (Egilman) at 89-90, 109, 118, 145-46.) This opinion is impermissibly at odds with Thacker's “frequency, regularity and proximity” requirement and the principles of proximate cause that have always governed tort cases in this state. Consequently, Plaintiff's claim fails.

2. Plaintiff Did Not Establish that Modified Warnings Would Have Prevented His Lung Condition.

Moreover, even if Plaintiff could establish that he had frequent, regular, and proximate exposure to BASF Corporation-supplied diacetyl, and that the exposure caused his lung condition, he did not prove that BASF Corporation's failure to modify its MSDS was the cause of his exposure and injury. See Broussard v. Houdaille Indus., Inc., 183 Ill. App. 3d 739, 744, 539 N.E.2d 360, 363 (1st Dist. 1989) ; Wheeler v. Chrysler Corp., 2000 WL 263887, at *5 (N.D. Ill. 2000). In order to prevail, Plaintiff must “present sufficient evidence supporting a reasonable inference, rather than a guess, that the presence of adequate warnings would have prevented the plaintiff's injuries.... [P]roximate cause can only be established where there is a reasonable certainty that the defendant's acts caused the injuries.” Broussard, 183 Ill. App. 3d at 744-75, 539 N.E.2d at 364; see also Kane v. R.D. Warner Co., Inc., 275 Ill. App. 3d 1035, 1037, 657 N.E.2d 37, 39 (1st Dist. 1995) (plaintiff bears burden of establishing failure to warn is proximate cause of injury); Wheeler, 2000 WL 263887, at *5 (same).

Plaintiff cannot meet this burden without specifying both what warning should have been given and demonstrating that, had this warning been given, he would have read it and followed it. “It is axiomatic that liability cannot be premised merely upon surmise or conjecture as to the cause of the injury.” Lee v. Chicago Transit Auth., 152 Ill. 2d 432, 455, 605 N.E.2d 493, 503 (1992) ; see also Broussard, 183 Ill. App. 3d at 744, 539 N.E.2d at 363 (“Without evidence the manual would have prevented the harm [suffered by the plaintiff], to permit the jury to draw such an inference allows it to impermissibly base its verdict on mere speculation.... Liability cannot be predicated upon surmise or conjecture as to the cause of the plaintiff's injuries.”); Schultz v. Hennessy Indus., Inc., 222 Ill. App. 3d 532, 543, 583 N.E.2d 235, 243 (1st Dist. 1991) (“The mere possibility ... that a warning might have prevented the injury to the plaintiff is insufficient to establish a causal relationship between defendant's alleged negligence and plaintiff's injuries.”); Wheeler, 2000 WL 2633887, at *5 (a failure to warn claim requires evidence that the “warning would have been read and heeded, and would have prevented the injuries in question.”). Furthermore, Illinois does not presume that a warning would have been read and heeded. Schultz, 222 Ill. App. 3d at 543, 584 N.E.2d at 243; see also Broussard, 183 Ill. App. 3d at 744, 539 N.E.2d at 363 (“The fact that no manual was supplied by [the manufacturer] until after the accident does not constitute evidence that the manual would have been used by [the employer's set-up man] or by Broussard, or that the injury would have been avoided.”).

There was no testimony that Plaintiff ever read an MSDS for a BASF Corporation product. In addition, Plaintiff presented no evidence that he would have read a modified MSDS if one had been given, or that the modification would have changed his conduct. He therefore cannot prove that any of BASF Corporation's conduct caused his injuries. Accordingly, liability cannot be imposed against BASF Corporation on Plaintiff's theory of failure to adequately warn.

III. BASF CORPORATION IS ENTITLED TO A DIRECTED VERDICT ON PLAINTIFF'S CLAIM FOR STRICT LIABILITY.

Plaintiff's strict liability claim is based on a failure to warn theory. Plaintiff must prove:

1. the product is unreasonably dangerous;

2. the product proximately caused plaintiff's injury; and

3. the seller knew or should have known of the unreasonable danger posed by the product.

Salerno v. Innovative Surveillance Tech., Inc., ---N.E.2d ---, 2010 WL 2675003, at*6 (1st Dist. June 30, 2010); Kurrack v. Am. Dist. Telegraph Co., 252 Ill. App. 3d 885, 891-92, 625 N.E.2d 675, 680 (1st Dist. 1993).

Plaintiff failed to introduce sufficient evidence to sustain his cause of action for strict liability. Plaintiff failed to present sufficient evidence that diacetyl is unreasonably dangerous. Plaintiff also failed to establish that BASF Corporation-supplied diacetyl proximately caused his lung condition, and BASF Corporation knew or should have known that diacetyl posed an unreasonable danger to Plaintiff.

A. Diacetyl Is Not Unreasonably Dangerous.

Plaintiff did not offer evidence sufficient to establish that diacetyl is unreasonably dangerous. Dr. Parmet, one of Plaintiff's expert witnesses, testified that it is possible for someone to be exposed to diacetyl and not be harmed by the exposure. (7/20/10 Evidence Dep. (Parmet) at 141-43.) Dr. Parmet also admitted that it is not possible to determine how much diacetyl Plaintiff was exposed to and whether he was exposed to enough diacetyl for it to have a harmful effect. (Id. at 149.) Dr. Egilman also admitted that with an adequate warning, diacetyl can be safe to use.

B. BASF Corporation-Supplied Diacetyl Did Not Proximately Cause Plaintiff's Lung Condition.

Plaintiff also failed to prove that his lung condition was caused by exposure to BASF Corporation-supplied diacetyl. Plaintiff offered no evidence quantifying the levels of exposure Plaintiff may have had to BASF Corporation-supplied diacetyl. Dr. Parmet admitted that he could do no more than “hazard a guess” as to Plaintiff's exposure to diacetyl(id.), let alone determine Plaintiff's exposure to BASF Corporation-supplied diacetyl. In addition, Dr. Egilman admitted that he does not know whether Plaintiff was, in fact, exposed to BASF Corporation-supplied diacetyl.

C. BASF Corporation Did Not Know, Nor Should It Have Known, Of An Unreasonable Danger Posed By Diacetyl.

As explained above, Plaintiff failed to offer sufficient evidence that BASF Corporation knew or should have known that diacetyl caused bronchiolitis obliterans at the time Mr. Solis was allegedly exposed to its product. Dr. Egilman admitted that there is no medical literature stating that diacetyl causes bronchiolitis obliterans (8/3/10 Trial Tr. (Egilman) at 121), and both Dr. Egilman and Dr. Parmet admitted that diacetyl is not inherently dangerous, and there are levels of exposure at which the product is safe (8/3/10 Trial Tr. (Egilman) at 140; 7/20/10 Evidence Dep. (Parmet) at 134-35).

IV. BASF CORPORATION IS ENTITLED TO A DIRECTED VERDICT BECAUSE PLAINTIFF'S CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS.

Plaintiff's claims are barred by the two-year statute of limitations for personal injuries. See 753 ILCS 5/13-202. The limitations period began when (1) Plaintiff knew or reasonably should have known that he had been injured, and (2) Plaintiff knew his injury was wrongfully caused. Golla v. General Motors Corp., 167 Ill. 2d 353, 361, 657 N.E.2d 894, 898 (1995). Plaintiff knew his injury was wrongfully caused, so as to commence the running of the limitations period, when he possessed “sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct was involved.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980 (1981).

Plaintiff experienced respiratory problems throughout the 1990s, and admitted that he knew he was sick during this time. In addition, Plaintiff's expert Dr. Egilman testified that Plaintiff had lung disease from exposure to diacetyl by 1998, and severe lung disease from exposure to diacetyl by 2000. (8/3/10 Trial Tr. (Egilman) at 149-50.) However, Plaintiff did not file suit until 2006, and did not amend his complaint to include BASF Corporation as a defendant until 2007. His claims are accordingly time-barred.

CONCLUSION

The evidence presented by Plaintiff is insufficient to establish that BASF Corporation owed him any duty to warn. Nor does the evidence establish that BASF Corporation is strictly liable to Plaintiff. Accordingly, BASF Corporation is entitled to a directed verdict in its favor.

Dated: August 12, 2010 Respectfully submitted,

BASF CORPORATION

By:<> By Its Attorneys
John N. Scholnick
Heidi K. Oertle
Shelley L. Merkin
Schiff Hardin LLP
233 South Wacker Drive
Suite 6600
Chicago, Illinois 60606-6473
(312) 258-5500
Firm ID #90219

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