ILLINOIS OFFICIAL REPORTS

Appellate Court

Solis v. BASF Corp., 2012 IL App (1st) 110875

Appellate Court

Caption

GERARDO SOLIS, Plaintiff-Appellee, v. BASF CORPORATION,

Defendant-Appellant.

 District & No. First District, Fourth Division

Docket No. 1-11-0875

Filed October 4, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In a negligence and strict liability action alleging that plaintiff’s lungs

were injured by a synthetic chemical he used in his work in the flavoring

industry, the trial court’s error in directing a verdict for plaintiff on

defendant distributor’s claim that the action was barred by the statute of

limitations required that the cause be remanded for a new trial, since

defendant presented evidence plaintiff knew of the possible wrongful

cause of his lung condition more than two years prior to the time his

complaint was filed.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 2006-L-012105; the

Hon. Clare E. McWilliams, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

John N. Scholnick, Neil Lloyd, Heidi K. Oertle, and Shelley L. Merkin,

all of Schiff Hardin LLP, of Chicago, for appellant.

Kenneth B. McClain, of Humphrey, Farrington & McClain, of

Independence, Missouri, and Susan Ford Robertson, of Robertson Law

Group, of Kansas City, Missouri, for appellee.

Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.

Justices McBride and Howse concurred in the judgment and opinion.

OPINION

¶ 1 In this personal injury case, plaintiff Gerardo Solis claims that his lungs were injured

while he worked with diacetyl, a synthetic chemical used in artificial butter flavoring. Solis

brought negligence and strict liability claims for failure to warn and defective design against

BASF Corporation (BASF), one of the distributors that supplied diacetyl toSolis’s employer,

Flavorchem. The jury returned a verdict for Solis, and BASF now appeals. BASF raises a

host of legal and evidentiary errors, which it claims are the basis for a judgment as a matter

of law or at least a new trial. Most central to our resolution of this appeal, BASF claims that

the trial court erred by directing a verdict in favor of Solis on BASF’s statute of limitations

defense, where BASF presented evidence that Solis was aware of his lung injury and its

wrongful cause more than two years before he filed suit. Because we find error in the trial

court’s decision to direct a verdict in favor of Solis on the statute of limitations question, we

reverse and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 We provide an overview of the relevant facts, and we explore the trial testimony in

greater detail, as necessary, as part of our analysis. BASF primarily argues that the evidence

was insufficient as a matter of law to support Solis’s claims, and we therefore focus on the

evidence presented by Solis, as the parties have on appeal.

¶ 4 Solis’s Employment History

¶ 5 Gerardo Solis worked in the flavoring industry for nearly 20 years for three different

Illinois employers. From 1987 to 1989, Solis worked as a quality control technician and

assistant supervisor at Olmarc Packaging (Olmarc), which packaged cake mixes, cereals,

microwave popcorn, and similarfoods for companies like Pillsbury. Solissometimes worked

in a production area at the Olmarc plant where butter flavorings were mixed with other

ingredients.

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¶ 6 From 1989 to 1998, Solis worked at Flavors of North America (FONA), which made

flavorings (including cherry, blueberry, vanilla, and butter) for food ingredients. Solisstarted

as a compounder, a job where he mixed different ingredients into a finished form, before

becoming a supervisor in 1991. Solis worked in two parts of the production area: the spray

dry area, where he would heat a flavored liquid until it became a powder; and the liquids and

powders area, where various pieces of equipment were used to make flavoring, including

butter flavoring. As a compounder and supervisor in the production area, Solis worked with

diacetyl and other chemicals, including acetoin, butyric acids, and benzaldehyde.

¶ 7 From 1998 to 2006, Solis worked at Flavorchem, another manufacturer of flavorings.

Solis again worked as a compounder for approximately two years and then was promoted to

a supervisor. In both positions, Solis spent about 90% of his time in the powder area making

powdered flavorings, and he worked in the liquids area for about 10% of his time. In 2000,

Solis noticed an uptick in the use of diacetyl in butter and other flavoring. Solistestified that

his “main exposure” to diacetyl in butter flavors was from 2000 to 2004, and from 2004 to

2006, he was around diacetyl less often when there was an increase in hiring at Flavorchem.

Solis worked with a variety of chemicals, including acetoin, benzaldehyde, and butyric acid.

While he was mixing products, Solis would sometimes wear a dust mask or a cartridge

respirator, but he would take this off while walking around the production area.

¶ 8 BASF’s Supply of Diacetyl to Flavorchem

¶ 9 BASF distributed diacetyl during parts of the 1990s and 2000s. BASF purchased diacetyl

from BASF’s indirect German parent company, BASF Aktiengesellschaft (AG), which had 1

it manufactured bya third-party contractor. BASF sold no diacetyl to Olmarc or FONA while

Solis worked there. BASF sold diacetyl to Flavorchem to make both liquid and powdered

flavors, but Flavorchem purchase records (showing the total amount of diacetyl Flavorchem

purchased from BASF, by date) do not specify how much diacetyl was used to make each

type of flavoring.

¶ 10 The batch records at Flavorchem (identifying the supplier of the diacetyl used in each

batch) show that from 2003 until June 2006 (when Solis left), Flavorchem used 4,133.57

pounds of diacetyl in the powder room, of which BASF supplied 8.4% (347.55 pounds).

These were the only batch records available: the president of Flavorchem, Ken Malinowski,

testified that before January 1, 2003, there was no record of which company’s diacetyl was

used in particular batches of flavorings. During Solis’s tenure at Flavorchem, from 1998 to

2006, 9,934.5 pounds of diacetyl were used in the powder room, meaning that BASF

supplied at least 3.5% of the diacetyl used in the powderroom. Dr. David Egilman, an expert

for Solis, testified that if he assumed that the BASF diacetyl in the plant was 2.5% to 3% of

the diacetyl supplied to Flavorchem during the time Solis worked there, that amount would

BASF is a wholly owned subsidiary of BASF Americas Corporation; BASF Americas 1

Corporation is a wholly owned subsidiary of BASFIN Corporation; BASFIN Corporation is a

majority-owned subsidiary of BASF Nederland BV, a Dutch limited liability company; and BASF

Nederland BV is in turn a wholly owned subsidiary of BASF SE (formerly known as BASF AG).

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have been enough to cause Solis’s disease (bronchiolitis obliterans), even “if it was his only

exposure.”

¶ 11 Solistestified that from 2000 to 2004, he used diacetyl on a daily basis in the powder mix

area. According to a health and hygiene study conducted by National Jewish Hospital (NJH)

at Flavorchem, the highest levels of diacetyl in the Flavorchem plant were in the dry mix or

powder area, where Solisspent the majorityof his time. Solisrecalled using diacetyl supplied

by Polarome, Citrus & Allied (C&A), O’Laughlin, and Elan. He estimated that 50% of the

diacetyl used in the plant between 2000 and 2004 was BASF diacetyl. Solis testified on

cross-examination that his estimate was based on his memory that BASF’s label appeared

on barrels of diacetyl and that many of the formulas he mixed contained diacetyl. On redirect

examination, Solis testified his estimate was confirmed by review of Flavorchem purchase

records that purportedly showed the entire amount of diacetyl (used to make powder and

liquid flavorings) that BASF supplied to Flavorchem.

¶ 12 BASF MSDS and the LC50 Study

¶ 13 Solis’s failure-to-warn claims center on material safety data sheets (MSDSs) for diacetyl

that BASF provided to Flavorchem. Federal Occupational Safety and Health Administration

(OSHA) regulations require sellers and distributors of chemicals to provide MSDSs to

purchasers, and these purchasers must make MSDSs available to their employees. OSHA’s

regulations also require employers to train employees to read and understand MSDSs. As Dr.

Sandler, an expert witness for BASF, explained, employers “must take these MSDSs, teach

the employees how to read them and what they mean” and “must train them as to the labels

that are provided.”

¶ 14 Solis claims that BASF’s MSDS for diacetyl failed to adequately disclose information

from a 1993 study, performed by AG, entitled “Study on the acute inhalation toxicity LC50

of Diacetyl FCC as a vapor in rats 4-hour exposure.” The “Lethal Concentration 50” (LC50)2

study showed that “[d]uring necropsy all animals that died showed general congestion,” that

“[e]xposure to high concentration led to atelactasis and bloody edema of the lungs, bronchial

edema and intensified hydrothorax,” and that “the mid and high concentration groups

revealed extensive hyperemia of the lung, *** [and] moderate emphysema and focal

hyperemia of the lungs.” The study concluded that the level at which 50% of the rats died

(between 2.25 and 5.2 mg/l exposure for 4 hours) fell within a concentration range classified

as “moderately toxic.”

¶ 15 BASF received its MSDSs for diacetyl from AG. From 1995 to 2006, BASF’s MSDS

reported the study data as “Rat, Inhalation LC50–2.25-5.2 MG/L” with the designation

“Moderately Toxic.” BASF’s MSDS stated that “[i]nhalation causes irritation to the

respiratorytract” and also reported that “[t]here are no known chronic effects associated with

this material.” The MSDS advised using an “[a]pproved organic vapor mist respirator as

necessary” and “local exhaust to control vapors/mists.” In May 2006, the California

For inhalation experiments, the concentration of the chemical in air that kills 50% of the 2

test animals in a given time (usually four hours) is the LC50 value.

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Department of Health Services contacted BASF about revisions to the MSDS for diacetyl.

BASF subsequently changed its MSDS in June 2006 to add the phrase “Overexposure to

high concentrations may cause pulmonary irritation that could be associated with lung

disease (bronchiolitis obliterans).”

¶ 16 At Flavorchem, Solis was responsible for giving employees instruction on where to

access MSDSs, and he would sometimes read various MSDSs with employees so that they

had “some understanding” of what the warnings said. When asked if he read any MSDSs on

diacetyl at Flavorchem, Solis explained that “[t]here was no need” because he had read “a

lot of MSDSs” at FONA, including MSDSs for the diacetyl. As to the MSDS, Dianne

Hamernick, a Flavorchem employee, testified that if Flavorchem had the study in hand as of

2001, it would have “updated” and “changed” the MSDS and “seen if additional personal

protective equipment was needed.”

¶ 17 While the parties agree that BASF received a copy of the LC50 study from AG no earlier

than 2001, Solis introduced evidence regarding the inability of industry groups to obtain the

study (or similar information) in the 1990s. Solis presented testimony from John Hallagan,

general counsel for the Flavor and Extract Manufacturers Association (FEMA), an industry

trade organization. He testified that FEMA maintains a database that contains safety

information for diacetyl, available to members of FEMA and the Research Institute for

Fragrance Materials (RIFM), the scientific arm of the flavoring industry. Hallagan testified

that had FEMA been provided the LC50 study in the late 1990s, it would have disseminated

the information to diacetyl users. Solis’s counsel solicited testimony from Solis’s expert

witnesses that if BASF had “come forward” with the study in the 1990s, the medical and

scientific communitycould have discovered the causal association between diacetyl and lung

injury before 2002.

¶ 18 Solis’s Lung Condition and Diagnosis With Bronchiolitis Obliterans

¶ 19 In 1990, a year after starting work at FONA, Solis was diagnosed with asthma. Solis

testified that his asthma was under control at the time and he was still active, though he saw

a doctor at least once a year between 1990 and 1999 for treatment. Solis testified that as of

1998, he had shortness of breath, coughing, and wheezing. In 1999, Solis took a pulmonary

function test as part of an initial health clearance at Flavorchem. According to Solis’s expert,

Dr. Allen Parmet, the test showed “obstructive lung disease,” though he described Solis’s

symptoms as “manageable” prior to 2000.

¶ 20 In 2004, Flavorchem management invited doctors from NJH, who provide “expert

advice” to flavoring plants, to do an assessment of the Flavorchem facility and workers’

health at the plant. As part of the visit, Solis received another pulmonary function test. The

test showed decreased lung function, and Dr. Cecile Rose, a pulmonologist at NJH,

recommended that Solis be taken out of the dry mix area. Solis testified that at this time, he

did not associate his lung problems with his work. Sometime in late 2004 or mid-2005, Solis

filled out a medical questionnaire in connection with one of NJH’s visits. As part of the

questionnaire, Solis was asked if he felt that particular tasks or processes in his job were

likely to cause breathing problems, and he checked “yes.” He also responded “yes” to the

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question “Are your symptoms worse at work?” Solis testified that at the time he filled out

this questionnaire, he felt that working around certain chemicals, including diacetyl, “caused

[his] breathing problems.” In June 2006, Solis was told by Dr. Rose of NJH that he had the

lung disease bronchiolitis obliterans, a rare lung disease in which the bronchioles, the

branches nearthe end of the bronchial tree, are scarred, obstructing the airflow. Dr. Rose told

Solis that his condition was caused by exposure to diacetyl at work, and Solis testified that

this was the first time he understood that his lung condition was caused by chemical

exposure.

¶ 21 Before his diagnosis, Solis’s lung condition had been growing progressivelyworse since

2000, just as the diacetyl usage increased at Flavorchem. He visited the emergency room

more often, his symptoms became more severe, and he was hospitalized for a few days.

Drawing from results of Solis’s lung function tests, Dr. Egilman explained that Solis had lost

ten percent loss of lung function between 2000 and 2009. He noted that Solis was at a “risk

of death” if he contracted a cold, small virus, or infection. According to Dr. Parmet, Solis

was “permanently and totally disabled” and was in need of a lung transplant.

¶ 22 Proceedings Below

¶ 23 Solis initially filed suit on November 17, 2006, against 20 defendants, arguing that each

was responsible forSolis contracting bronchiolitis obliterans from exposure to diacetyl. Solis

filed an amended complaint on August 30, 2007, adding BASF as a party. BASF was the

only remaining defendant at trial. After the jury returned a verdict of $32 million, finding

Solis 5% at fault and BASF 95% at fault, the trial court denied BASF’s posttrial motions for

judgment notwithstanding the verdict or a new trial. This appeal followed.

¶ 24 ANALYSIS

¶ 25 BASF contends that it is entitled to a judgment as a matter of law, or at least a new trial,

for three principal reasons. First, BASF argues that the trial court erred in directing a verdict

in favor of Solis on BASF’s statute of limitations defense, where there was evidence showing

that Solis knew of his injury and its wrongful cause more than two years before he filed suit

against BASF. Second, BASF argues that there was insufficient evidence of causation

because Solis failed to show that diacetyl supplied by BASF was a substantial factor in

causing his injury, and because Solis admitted that he did not read BASF’s MSDSs at

Flavorchem. Third, BASF argues that the jury was improperly instructed that BASF had a

duty to warn the flavoring industry–and not just the users of its diacetyl–about the hazards

of diacetyl. Apart from these issues, BASF argues that Solis failed to make the necessary

showing that diacetyl was unreasonably dangerous in order to support his strict liability

claims. BASF also raises several claims of evidentiary and instructional error, arguing that

it is entitled to a new trial.

¶ 26 At the outset, we mark the bounds of our review on BASF’s argument that it was entitled

to judgment notwithstanding the verdict (judgment n.o.v.) and that it was improper for the

trial court to enter a directed verdict in favor of Solis on the statute of limitations issue. “[I]t

is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of

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the witnesses, and to decide what weight should be given to the witnesses’ testimony.”

Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). A judgment n.o.v. or directed verdict is

properly entered in those limited cases where “all of the evidence, when viewed in its aspect

most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict

based on that evidence could ever stand.” (Internal quotation marks omitted.) Jablonski v.

Ford Motor Co., 2011 IL 110096, ¶ 88; Maple, 151 Ill. 2d at 453. In ruling on a motion for

judgment n.o.v. or directed verdict, “a court does not weigh the evidence, nor is it concerned

with the credibility of the witnesses; rather it may only consider the evidence, and any

inferences therefrom, in the light most favorable to the party resisting the motion.” Maple,

151 Ill. 2d at 453 & n.1. If there is any evidence, together with reasonable inferences to be

drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of

credibility of the witnesses or the determination regarding conflicting evidence is decisive

to the outcome, the court should not enter a judgment as a matter of law. Id. at 454. We

review de novo the decision denying BASF’s motion for judgment n.o.v. and the decision to

direct a verdict for Solis. Id.; Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 100

(2010).

¶ 27 Statute of Limitations

¶ 28 BASF contends that Solis’s claims are barred by the two-year personal injury statute of

limitations. See 735 ILCS 5/13-202 (West 2008). In personal injury actions, the statute of

limitations generally begins to run on the date of the injury. Golla v. General Motors Corp.,

167 Ill. 2d 353, 360 (1995). In cases of exposure to harmful substances, however, plaintiffs

generally do not “discover that they suffered any injury until long after the tortious conduct

occurred,” and courts apply the discovery rule “to prevent the unfairness of charging the

plaintiff with knowledge of facts which were ‘unknown and inherently unknowable.’ ”

(Emphasis in original.) Id. at 367 (quoting Urie v. Thompson, 337 U.S. 163, 169 (1949)); see

Prosser and Keeton on Torts § 30, at 165-67 (W. Page Keeton et al. eds., 5th ed. 1984); see

also Clay v. Kuhl, 189 Ill. 2d 603, 611 (2000). The discovery rule “postpone[s] the

commencement of the relevant statute of limitations until the injured plaintiff knows or

reasonably should have known that he has been injured and that his injury was wrongfully

caused.” Golla, 167 Ill. 2d at 361. When a plaintiff asserts the discovery rule to delay

commencement of the statute of limitations, he has the burden of proving the date of

discovery. Gredell v. Wyeth Laboratories, Inc., 346 Ill. App. 3d 51, 58 (2004). According

to BASF, Solis’s claims were untimely because he knew or reasonably should have known

of his “lung condition and its possible wrongful cause” more than two years before

September 17, 2007, the date Solis filed his complaint against BASF. The trial court 3

disagreed and directed a verdict on the statute of limitations question in favor of Solis.

BASF contends, and Solis does not dispute, that the filing date of the amended complaint, 3

adding BASF as a party, is the operative date in this case because BASF did not receive notice of

the suit until the amended complaint was served. See 735 ILCS 5/2-616(d) (West 2008) (amended

complaint relates back to date of the original complaint only where added party had notice of the

original complaint).

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¶ 29 In this case, the trial court’s directed verdict for Solis can stand if all the evidence, when

viewed in its aspect most favorable to BASF, so overwhelmingly favors Solis that no

contrary verdict based on that evidence could ever stand. Lazenby, 236 Ill. 2d at 100. “The

issue of when a party knew or should have known both of the injury and that it was

wrongfully caused is generally one of fact. [Citations.] Thus, in most cases, the time at which

a party knows or reasonably should have known both of her injury and that it was wrongfully

caused will be a disputed question for the trier of fact.” Young v. McKiegue, 303 Ill. App. 3d

380, 387 (1999).

¶ 30 Solis contends that we can quickly dispense with the statute of limitations question

because the evidence was undisputed that Solis was not diagnosed with bronchiolitis

obliterans before 2006. It was this argument that convinced the trial court to direct a verdict

for Solis. The court noted that because “the first time [Solis] became aware of [his diagnosis]

was with Dr. Rose’s note in 2006,” the statute of limitations question was a “nonissue.” In

a posttrial order, the court reiterated that it entered a verdict in favor of Solis because he “was

not officially diagnosed with [bronchiolitis obliterans] until 2006, and he filed this lawsuit

in 2007.”

¶ 31 We disagree that an official diagnosis was required to trigger the running of the statute

of limitations. Our supreme court has explained that a plaintiff need not “know the full extent

of [her] injuries before the statute of limitations is triggered.” Golla, 167 Ill. 2d at 364.

“[T]he limitations period commences when the plaintiff is injured, rather than when the

plaintiff realizes the consequences of the injury or the full extent of her injuries.” Id. The

prior cases of this court and our supreme court make clear that an official diagnosis is not

required to trigger the statute of limitations. In Nolan v. Johns-Manville Asbestos, 85 Ill. 2d

161 (1981), for example, the plaintiff sought treatment for breathing difficulties in 1957 and

was told at that time that he had “ ‘lung problems.’ ” Nolan, 85 Ill. 2d at 163. There was

some question whether plaintiff understood that his lung problems were occupationally

caused based, in part, on information he might have received from his doctor. Id. at 165-66.

In 1973, less than two years before he eventually filed suit, the plaintiff was diagnosed with

asbestosis and was told that his condition was caused by exposure to asbestos materials at

work. Id. at 166.

¶ 32 In applying the discovery rule, the court recognized that the statute of limitations can be

triggered before an official diagnosis. The court noted that the plaintiff “could not possibly

have been aware of his injury until, at the earliest, 1957, when the first symptoms began to

appear.” (Emphasis added.) Id. at 169. While the appellate court had held that the cause of

action accrued when the plaintiff “ ‘knew or, in the exercise of reasonable diligence, should

have discovered that he had contracted the disease asbestosis due to defendants’ acts or

omissions,’ ” the supreme court stated that the “preferred rule is that the cause of action

accrues when the plaintiff knows or reasonably should know of an injury and also knows or

reasonably should know that the injury was caused by the wrongful acts of another.”

(Emphasis added.) Id. The court acknowledged that “[i]t was not until May 15, 1973, that

he was told by a doctor that he had asbestosis and that his condition was caused by exposure

to asbestos materials at work,” but explained that “[t]he evidence is conflicting as to whether

or when [the plaintiff] would have had sufficient information to reach such a conclusion

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earlier.” (Emphasis added.) Id. at 171-72.

¶ 33 Nolan suggests that a definitive diagnosis coupled with an explanation of the cause of the

illness will generally mark the endpoint of when the statute of limitations begins to run. But

it does not follow that the statute of limitations cannot begin to run before an affirmative

diagnosis. As this court has recognized, “Nolan and later precedent firmly establish that an

affirmative diagnosis of an injury is not the bellwether that gives rise to a plaintiff’s claim.”

Healy v. Owens-Illinois, Inc., 359 Ill. App. 3d 186, 194 (2005). For example, in Wilson v.

Devonshire Realty of Danville, 307 Ill. App. 3d 801 (1999), the plaintiff argued that “she was

immediately aware of symptoms of an illness but not the latent pulmonary disease, which

was not diagnosed until April 1997.” Wilson, 307 Ill. App. 3d at 805-06. The court rejected

this claim, noting that plaintiff admitted that she had occupational asthma and multiple

chemical sensitivity in 1995. Id. at 806. The court reasoned that “the present case does not

involve a plaintiff who failed to discover any injury but, rather, a plaintiff who failed to

discover the full extent of her injuries before the expiration of the statute of limitations.”

(Emphasis in original.) Id.; see also Hutson v. Hartke, 292 Ill. App. 3d 411, 415 (1997)

(concluding that the plaintiff knew or should have known of her injuries in a case involving

exposure to ammonia fumes and explaining that it was “sufficient that she experienced an

identifiable episode which irritated her nose and throat and started a pattern of coughing that

subsequently worsened and continued for weeks,” even if she did not know the “full extent

of the injury that the ammonia fumes would cause”).

¶ 34 As the foregoing discussion illustrates, to say that the statute of limitations question does

not turn on an official diagnosis does not end our inquiry. We must decide if the facts

establish one way or the other that Solis knew or reasonably should have known that he was

injured and that the injury was wrongfully caused–or if there is a factual question that should

have gone to the jury. In this case, it is undisputed that plaintiff had some knowledge of an

injury (a severe condition in his lungs) at least by 2004. Pulmonary function tests in 1999 and

2004 showed that Solis had decreased lung function. Between 2000 and 2004, Solis’s

symptoms were severe: he had several emergency room visits, coughing fits, and a period

of hospitalization. After 2000, Solisrecognized his symptoms as being “outside the ordinary,

outside of asthma.”

¶ 35 The central question here, as in many cases related to exposure to harmful substances,

is whether Solis knew or should have known that those symptoms had a wrongful cause. On

appeal, Solis contends that he simply thought he had asthma, even if severe, and never

connected his condition to anywrongful cause. The term “wrongful cause” refers to the point

in time when “the injured party becomes possessed of sufficient information concerning his

injury and its cause to put a reasonable person on inquiry to determine whether actionable

conduct is involved.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981). This

standard “does not require knowledge on the part of plaintiff that the defendant’s conduct fits

the technical legal definition of negligence or that all the legal elements of a particular cause

of action are otherwise satisfied.” Mitsias v. I-Flow Corp., 2011 IL App (1st) 101126, ¶ 24.

Instead, it is the reasonable knowledge of injury and its wrongful cause that imposes a

“burden *** to investigate whethershe has a viable cause of action.” Id. ¶ 23; accord Martin

v. A&M Insulation Co., 207 Ill. App. 3d 706, 710 (1990). Additionally, this court has

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recognized “that unless a clear definitive diagnosis is given by a doctor, in many instances

it is a compilation or a series of statements, events or circumstances and thoughts that

changes mere suspicion to reasonablyknowing that a *** condition was wrongfully caused.”

LaManna v. G.D. Searle & Co., 204 Ill. App. 3d 211, 219 (1990).

¶ 36 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 injurymight be legallyactionable. In 2004, Flavorchem management invited doctors from

NJH to do an assessment of the Flavorchem facility and workers’ health at the plant. Solis

testified that his understanding of the visit was that NJH was “doing some sampling” so that

Flavorchem could get better ventilation and employees could get the correct respirators. As

part of the visit, Solis received a pulmonary function test from NJH that showed decreased

lung function, and Dr. Cecile Rose of NJH recommended that Solis be taken out of the dry

mix area. Still, Solis testified that at this time, he did not have any idea than something at

work could be causing his lung problems.

¶ 37 In December 2004, Solis went to meet with his pulmonologist, Dr. Sherman. Solis

confirmed that he had “some discussion with [Dr. Sherman] about the fact that [he was]

having some problems while [he] was at work with breathing.” While Solisinitially testified

that he could not recall if Dr. Sherman asked any questions about “what kinds of exposures

to various chemicals or fumes” Solis had at work, he then equivocated as to what he had told

Dr. Sherman:

“Q. Did you tell Dr. Sherman that you were feeling worse at work, and that you

thought it related to the kinds of things you were inhaling while you were working there?

A. I might, but I don’t think so. I mean, by walking, I feel sick, you know, it trigger

asthma [sic]. I mean, so I probably did. I’m not sure.”

Sometime in late 2004 or mid-2005, Solis filled out a medical questionnaire in connection

with the NJH visit. (A follow-up questionnaire has the marking “previous” followed by

October 28, 2004 and May 2005, and Solis testified that the first questionnaire he filled out

was probably from October 2004 or May2005.) As part of the questionnaire, Solis was asked

if there were particular tasks or processes in his job that he felt were likely to cause breathing

problems, and he checked “yes.” He also responded “yes” to the question “Are your

symptoms worse at work?” Solis admitted that at the time he filled out this questionnaire,

he felt that working around certain chemicals, including diacetyl, “caused [his] breathing

problems.”

¶ 38 When viewed in a light most favorable to BASF, the evidence does not so 4

While BASF cites to other records in its brief in support of its statute of limitations

4

argument, these documents were simply attached to a previous summary judgment motion, and there

is no indication that these documents were part of the evidentiary record. For example, BASF cites

to a letter from Dr. Rose, dated June 2, 2005, explaining that NJH performed another medical

screening in May 2005 as part of a “testing program *** to screen people for work-related lung

disease.” That letter apparently was not in evidence. BASF also cites to a November 5, 2004 letter

from Dr. Sherman, which discusses “significant occupational history” and includes a handwritten

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overwhelmingly favor Solis that no jury could have concluded that Solis did not know or

should not have known of his lung condition’s wrongful cause. More than one conclusion

can be drawn from the evidence presented to the jury. We acknowledge that Solis testified

that the first time he connected his lung condition to chemicals at work was in June 2006,

when Dr. Rose told him that she was worried that he may have bronchiolitis obliterans from

flavoring chemicals. But Solis’s testimony must be placed in context of the evidence

presented at trial. Before 2005, Solis’s condition was growing significantly worse, a hospital

group came to do a health assessment at Flavorchem, the hospital group tested the lung

function of Solis and other employees, and Solis was told he could not work in the dry mix

area. 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.” Solis’s testimony–which itself is sometimes

contradictory–either creates a factual dispute or raises questions about his credibility.

“[W]here the resolution of factual disputes or the assessment of witness credibility is critical

to the outcome of an action, a circuit court may not direct a verdict or grant a judgment

notwithstanding the verdict.” Poulos v. Lutheran Social Services of Illinois, Inc., 312 Ill.

App. 3d 731, 739 (2000) (citing Maple, 151 Ill. 2d at 454).

¶ 39 We acknowledge that “reasonable knowledge of wrongful cause requires more than a

mere suspicion that wrongdoing might have occurred, if that suspicion is not yet supported

by facts known to plaintiff.” Mitsias, 2011 IL App (1st) 101126, ¶ 24. As this court has

explained, however, the question is not simply what Solis knew, but what he should have

known:

“[W]hether a party possessed the requisite constructive knowledge contemplates an

objective analysis of the factual circumstances involved in the case. Thus, the relevant

determination rests on what a reasonable person should have known under the

circumstances, and not on what the particular party specifically suspected. The trier of

fact must examine the factual circumstances upon which the suspicions are predicated

and determine if they would lead a reasonable person to believe that wrongful conduct

was involved.” Young v. McKiegue, 303 Ill. App. 3d 380, 390 (1999).

It is for the jury to determine whether Solis reasonably concluded that he simply had severe

asthma from some non-occupational cause, or whether, based on the information he

possessed, Solis should have inquired as to some possible fault on the part of the defendant.

Where BASF presented some evidence that Solis knew or should have known of some

possible fault on the part of BASF, it was error to direct a verdict in favor of Solis on the

note, “Diacetyl exposure @ work.” Although the letter is included within Dr. Sherman’s records

admitted into evidence at a postverdict conference, BASF cites no testimony regarding the

November 5, 2004 letter. In reviewing the trial court’s directed verdict for Solis, entered just before

closing arguments, we consider only the evidence adduced at trial. See People ex rel. Reynolds v.

Aldridge, 107 Ill. App. 3d 679, 684 (1982) (“We find no merit in the State’s argument that the trier

of fact can be reversed by the trial judge on the basis of facts which were available at the time of trial

but never proffered. The trial court is to base a judgment n.o.v. solely on the basis of evidence

introduced at trial.”).

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statute of limitations question. See Sekerez v. Rush University Medical Center, 2011 IL App

(1st) 090889, ¶ 59 (finding that trial court erred by directing a verdict on medical negligence

claim where evidence was in conflict). When drawing all reasonable inferences in BASF’s

favor, the evidence did not “so overwhelmingly favor[] [Solis] that no contrary verdict based

on that evidence could ever stand.” (Internal quotation marks omitted.) Lazenby, 236 Ill. 2d

at 100. Accordingly, we reverse and remand for a new trial so that the jury can consider the

statute of limitations question.

¶ 40 Causation: Proof of Exposure

¶ 41 BASF next contends that Solis’s strict liability and negligence claims must fail because

Solis did not prove that BASF was a “cause in fact” of his injuries. BASF argues that it is

entitled to judgment n.o.v. on all claims. Alternatively, BASF argues that the verdict was

against the manifest weight of the evidence, and we should therefore order a new trial. “ ‘A

verdict is against the manifest weight of the evidence where the opposite conclusion is

clearly evident or where the findings of the jury are unreasonable, arbitrary and not based

upon any of the evidence.’ [Citations.]” Maple, 151 Ill. 2d at 454.

¶ 42 At issue here is whether Solis has presented sufficient evidence that BASF’s diacetyl was

a “cause in fact” of his injuries. Cause in fact can only be established when there is a

reasonable certainty that a defendant’s acts caused the plaintiff’s injury. Lee v. Chicago

Transit Authority, 152 Ill. 2d 432, 455 (1992). “It is axiomatic that liability cannot be

premised merely upon surmise or conjecture as to the cause of the injury.” Id. Causation in

fact “is usually a question for the trier of fact.” Thacker v. UNR Industries, Inc., 151 Ill. 2d

343, 355 (1992).

¶ 43 There are generally two tests used by courts to determine “cause in fact”: the traditional

“but for” test and the “substantial factor” test. Id. at 354. On appeal, the parties focus their

arguments on the “substantial factor” test, by which the “defendant’s conduct is said to be

a cause of an event if it was a material element and a substantial factor in bringing the event

about.” Id. at 354-55. In Thacker, our supreme court adopted the “frequency, regularity and

proximity” test as a means by which an asbestos plaintiff can establish that a specific

defendant’s product was a substantial factor in being a cause in fact of a plaintiff’s injury.

Under that test, the plaintiff must prove that he was “exposed to the defendant’s asbestos

through proof that (1) he regularly worked in an area where the defendant’s asbestos was

frequently used and (2) the injured worker did, in fact, work sufficiently close to this area so

as to come into contact with the defendant’s product.” Id. at 359. Our supreme court recently

reaffirmed the use of this test in asbestos cases, but clarified that “the ultimate burden of

proof on the element of causation remains exclusively on the plaintiff,” and “Thacker creates

no presumption on the issue of causation.” (Emphasis in original.) Nolan v. Weil-McLain,

233 Ill. 2d 416, 435 (2009).

¶ 44 To begin, we must address an issue that the parties brush aside rather quickly: whether

Thacker’s “frequency, regularity and proximity” test applies in a case with allegations of

occupational exposure to diacetyl, or whether that test is limited to asbestos exposure cases.

For his part, Solissimply asserts, without discussion, that Thacker has no application beyond

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asbestos cases. In reply, BASF contends that no Illinois authority limits Thackerto asbestos

cases. The court in Thacker noted the “unique problems posed by asbestos injury” and

identified several factors that led it to apply the “frequency, regularity and proximity” test

in an asbestos case, many related to “how a plaintiff in an asbestos case can fairly meet the

burden of production with regard to causation.” Thacker, 151 Ill. 2d at 356-57 (noting, for

example, that “a plaintiff injured by asbestos fibers often does not know exactly when or

where he was injured and therefore is unable to describe the details of how such injury

occurred”).

¶ 45 The parties cite no authority to support their contentions regarding the applicability of

the Thacker test to exposure cases like this one, nor do they discuss why it would be

appropriate to apply that test in this case. Where the parties have failed to adequately address

the issue, we will assume, but do not decide, that the test announced in Thacker applies to

this case of occupational exposure to diacetyl. Compare Donaldson v. Central Illinois Public

Service Co., 199 Ill. 2d 63, 92 (2002) (declining to adopt the frequency, regularity and

proximity rule and “depart from traditional concepts of causation” in a case involving

environmental exposure, as opposed to asbestos exposure, because “[e]nvironmental

exposure cases *** do not afford litigants the opportunity to specify with such certainty the

exact level and dose of exposure” or “when or where exposure occurred”), abrogated on

other grounds by In re Commitment of Simons, 213 Ill. 2d 523 (2004), with James v.

Bessemer Processing Co., 714 A.2d 898, 911 (N.J. 1998) (discussing use of frequency,

regularity, and proximity test in nonasbestos cases and ultimately “hold[ing] that a plaintiff

in an occupational-exposure, toxic-tort case may demonstrate medical causation by

establishing: (1) factual proof of the plaintiff’s frequent, regular and proximate exposure to

a defendant’s products; and (2) medical and/or scientific proof of a nexus between the

exposure and the plaintiff’s condition”). Here it is enough to say that in Nolan, our supreme

court explained that the frequency, regularity and proximity test, ultimately grounded in

fundamental principles of tort law causation, does not alter the plaintiff’s burden to prove

causation:

“Although we noted [in Thacker] that asbestos plaintiffs face unique challenges in

showing causation, we did not carve out an exception for asbestos cases which relieve

those plaintiffs from meeting the same burden as all other tort plaintiffs. Rather, we

adopted Lohrmann’s frequency, regularity and proximity test–tailored to application in

asbestos actions–as a means by which a plaintiff choosing to prove cause in fact through

use of the substantial factor test may meet that burden.” Nolan, 233 Ill. 2d at 434.

¶ 46 Assuming that the frequency, regularity and proximity test applies here, we turn to

BASF’s argument that because it supplied such a small amount of diacetyl to Flavorchem,

Solis could not prove that BASF’s diacetyl was a substantial factor in causing Solis’s injury.

BASF argues that Solis’s exposure to diacetyl supplied by BASF was “relatively

insignificant” because BASF supplied as little as 3.5% of the diacetyl used in Flavorchem’s

powder room during the time Solis worked there. BASF points out that Solis was exposed

to diacetyl from other suppliers, as well as other potentially harmful chemicals, during his

employment at Flavorchem, Olmarc, and FONA.

¶ 47 Our supreme court encountered a similar argument in Thacker. There, the defendant

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argued that it was entitled to a judgment n.o.v. on causation because the defendant supplied

only a small amount of asbestos to the plant where decedent worked compared to the

quantity of asbestos supplied to the plant from other sources. Thacker, 151 Ill. 2d at 355. The

decedent had worked at the plant for eight years, and defendant had supplied asbestos for

three of those years. Id. at 350. The plaintiff’s expert testified that the decedent’s disease may

have been caused by any one, or any group, of the asbestos fibers inhaled by the decedent.

Id. at 351. After adopting the “frequency, regularity and proximity” test for causation in fact,

the court turned to the evidence before it as to the frequency of use:

“[T]he evidence showed that [the decendent] worked in the UNARCO plant for more

than eight years and that at least 75 tons of defendant’s raw asbestos was processed at

the plant during this time. The defendant notes in its brief that even under the most

generous calculation, a maximum of just 3% of the total dust in the plant could have been

generated from Manville asbestos and that the actual dust at the decedent’s work site

was, in all likelihood, significantly less. In light of plaintiff’s medical evidence which

indicated that even slight exposure would adversely affect the decedent’s health,

however, and in light of the total volume of asbestos at the UNARCO facility, we cannot

say that 3% is insignificant as a matter of law.” (Emphasis in original.) Id. at 360.

The court went on to explain that while the decedent testified that he could not remember

ever working with defendant’s asbestos, the plaintiff had presented sufficient evidence on

“proximity” based on the ability of asbestos fibers to drift through the air. Id. at 364-65. The

court concluded that the trial court properly denied defendant’s judgment n.o.v., and the

verdict was not against the manifest weight of the evidence. Id. at 366.

¶ 48 As in Thacker, we cannot conclude that Solis’s exposure to BASF diacetyl was

insignificant as a matter of law. As to the frequency of use of BASF diacetyl, the batch

records at Flavorchem show that BASF supplied at least 3.5% of the diacetyl used in the

Flavorchem powderroom duringSolis’s tenure.The 3.5% figure takes into account no BASF

diacetyl supplied before 2003, even though BASF sold diacetyl to Flavorchem beginning in

2001. While BASF challenges the validity of Solis’s testimony, Solis estimated that 50% of

the diacetyl used in the plant was BASF diacetyl between 2000 and 2004. He testified that

he arrived at this number because “most” of the drums he transferred were from BASF, and

for “a whole bunch of formulas *** [he] was using the diacetyl.”

¶ 49 Apart from Solis’s testimony, Dr. Egilman testified that if he assumed that the BASF

diacetyl in the plant was 2.5% to 3% of the diacetyl supplied to Flavorchem during the time

Solis worked there, that amount would have been enough to cause the disease by itself, even

“if it was his only exposure.” In his opinion, this amount was “not trivial” and “by itself

[was] enough to cause the disease” regardless of other exposures. Building on this

conclusion, Dr. Egilman opined that exposure to BASF diacetyl was a substantial factor in

causing Solis’s disease. Under the principles announced in Thacker–left unaltered by

Nolan–we conclude that plaintiff has presented competent evidence that BASF diacetyl was

“frequently used” in the powder mix area.

¶ 50 Beyond the frequencyrequirement, there is no question that Solisregularlyworked in the

powder mix area in proximity to BASF diacetyl. Solis testified that from 2000 to 2004, he

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used diacetyl on a daily basis in the powder mix area, and he remembered using BASF

diacetyl after 2000. NJH found that the highest levels of diacetyl in the Flavorchem plant

were in the dry mix or powder area, which is where Solis spent the majority of his time.

Starting in 2003, when Flavorchem began to keep records of which diacetyl was used in

which batch, Solis’s initials appear on Flavorchem records next to particular batches with

BASF-supplied diacetyl, meaning that Solis was either the compounder of those batches or

he completed the computer work associated with those batches. The evidence presented at

trial allowed for “a reasonable inference of substantial causation in fact.” Nolan, 233 Ill. 2d

at 434.

¶ 51 BASF points out that Solis had a respiratory injury before his first exposure to BASF’s

diacetyl, and Solis worked with diacetyl before starting at Flavorchem. As Dr. Parmet

explained, Solis’s gradual injury could be described as the result of “a continuing and

ongoing exposure over the course of his employment.” But again, Dr. Egilman testified that

Solis’s exposure to BASF diacetyl–without more–was enough to cause the disease. And Dr.

Parmet, whose opinion linked Solis’s condition more generally to flavoring chemicals rather

than diacetyl alone, testified that he believed that “[d]iacetyl is the predominant chemical,”

even though it was “not the only one.” Most importantly, Solis testified (and his experts and

treating physicians confirmed) that as the diacetyl usage increased at Flavorchem after

2000–during the time when BASF was supplying diacetyl to Flavorchem–Solis’s condition

deteriorated rapidly. A lung function comparison from 1999 to 2010 showed that Solis lost

about 600 to 700 cubic centimeters of lung capacity, which was 2 to 3 times more loss than

normal. Dr. Egilman noted that the 10% loss of lung function between 2000 and 2009 was

significant because Solis was at a “risk of death” if he contracted a cold, cough, small virus,

or an infection. Dr. Parmet testified that Solis’s symptoms were “manageable” prior to 2000,

but became worse after 2000: Solis had more emergency room visits, more coughing fits,

coughing episodes that led to loss of consciousness, a decrease in pulmonary function, and

a period of hospitalization. It is not as if the “damage was done” by the time Solis began to

work with BASF diacetyl; there was evidence that additional exposure to diacetyl caused

further deterioration of the lungs.

¶ 52 We note that BASF was not prevented from challenging Solis’s experts’ opinions or

inquiring about Solis’s other exposures. Following Nolan, the trial court allowed BASF to

“explore other exposures” at FONA and Olmarc so that the jury could “determine what, if

any, of those exposures were the sole proximate cause” or that “those exposures were just

an additional cause for [Solis’s] illness.” While we acknowledge that the evidence suggested

that there were other contributing factors to Solis’s injury, BASF is “ ‘liable for [its]

negligent conduct whether it contributed wholly or partly to the plaintiff’s injury as long as

it was one of the proximate causes of the injury.’ ” (Emphasis omitted.) Nolan, 233 Ill. 2d

at 440 (quoting Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 93 (1995)). We

conclude that Solis presented enough evidence of frequent, regular, and proximate exposure

to BASF diacetyl to present the question of causation to the jury. Moreover, because the

findings of the jurywere supported bythe evidence and not unreasonable or arbitrary (Maple,

151 Ill. 2d at 452), we conclude that the jury’s verdict was not against the manifest weight

of the evidence.

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¶ 53 We must address one final argument from BASF as to “insufficient exposure.” BASF

argues that the trial court erred in allowing Solis’s experts to testify as to their conclusions

regarding the cause of Solis’s injury. BASF acknowledges that an expert may offer opinion

testimony regarding the ultimate issue in a case. Richardson v. Chapman, 175 Ill. 2d 98, 107

(1997). This testimony does not usurp the province of the jury because the jury is not

required to accept the expert’s opinion. Id.; see also Pyskaty v. Oyama, 266 Ill. App. 3d 801,

820 (1994) (finding no error in allowing expert to testify regarding causation). BASF claims,

however, that Dr. Egilman’s testimony was contrary to the standard for causation set forth

in Thacker because he asserted that any and every exposure, no matter how small, was a

substantial factor in bringing about his injury. We take a different view of Dr. Egilman’s

testimony. As noted above, Dr. Egilman testified that if he assumed that BASF supplied

2.5% to 3% of the diacetyl to Flavorchem at the time Solis worked there, that amount, alone,

was enough to cause his disease. On cross-examination, Dr. Egilman made clear that it was

not his conclusion that every exposure, no matter how small, was a “substantial factor” in

causing Solis’s injury. He explained that there was a “de minimus” exposure level, which he

marked at “less than one part of a billion total exposure,” though “exposure that’s 2 to 1

percent, 5 percent to 10 percent [would be] a significant contributing factor if the total

exposure is 100.”

¶ 54 Without mentioning anyof the above statements, BASF points to a single statement from

Dr. Egilman–among his hundreds of pages of testimony–to support the argument that Dr.

Egilman professed an “any exposure is a substantial factor” theory. On redirect examination,

Dr. Egilman testified regarding his opinion that BASF failed to release the LC50 study. His

counsel then asked about his views of the significance of not releasing that study:

“Q. Your view regarding the publication of this study has not changed since you

became aware that they did not release this to the public?

A. That’s correct.

Q. And do you believe it’s a substantial contributing factor to Mr. Solis’s disease

regardless of how much BASF diacetyl he was exposed to?

A. Yes.”

We view this testimony as expressing Dr. Egilman’s opinion that BASF’s failure to release

the LC50 study to Flavorchem contributed to Solis’s injury. We note that labeling BASF’s

alleged failure to warn as a “contributing factor,” regardless of how much BASF diacetyl

Solis was exposed to, is particularly confusing. That testimony is also contrary to the

requirement that Solis must prove that he was exposed to more than a de minimus amount

of BASF diacetyl in order to prevail on all of his negligence and strict liability claims. This

particular testimony from Dr. Egilman should not be repeated on remand. Based on our

review of Dr. Egilman’s entire testimony, however, we conclude that his opinion on

causation was not contrary to the requirement set forth in Thacker or Nolan.

¶ 55 Causation: Failure-to-Warn Claims

¶ 56 BASF next argues that it is entitled to a judgment n.o.v. because Solis failed to prove

proximate causation on his failure-to-warn claims sounding in negligence and strict liability.

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To prove these claims, Solis had to show (1) that BASF failed to disclose or instruct about

a danger of diacetyl, and (2) that this failure to disclose proximately caused his injuries. See

Salerno v. Innovative Surveillance Technology, Inc., 402 Ill. App. 3d 490, 498 (2010) (strict

liability failure to warn); Kane v. R.D. Werner Co., 275 Ill. App. 3d 1035, 1037 (1995)

(negligent failure to warn). BASF contends that Solis’s claims fail on the second element,

because Solis admitted that he never read any BASF warnings for diacetyl while at

Flavorchem.

¶ 57 In failure-to-warn cases, “it has been held that there must be sufficient evidence

supporting a reasonable inference, rather than a guess, that the presence of adequate warnings

would have prevented the plaintiff’s injuries.” Broussard v. Houdaille Industries, Inc., 183

Ill. App. 3d 739, 744 (1989); see also Brobbey v. Enterprise Leasing Co. of Chicago, 404 Ill.

App. 3d 420, 433 (2010) (question of proximate cause is ordinarily one for the jury). In Kane

v. R.D. Werner Co., 275 Ill. App. 3d 1035 (1995), this court held that a plaintiff who does

not read an allegedly inadequate warning cannot maintain a product liability action premised

on a failure-to-warn theory, unless the nature of the alleged inadequacy is such that it

prevents him from reading it. Kane, 275 Ill. App. 3d at 1037. The Kane plaintiff, injured in

a fall from a ladder, alleged that the defendant manufacturer had failed to warn of the

ladder’s various “dangerous propensities” on the warning label attached to the ladder. Id. at

1035-36. Because the plaintiff admitted that he had never read the warning labels, the

appellate court agreed with the trial court that the plaintiff had failed to show that the

warning labels on the ladder were the proximate cause of his injury. Id. Drawing from a

decision of the Alabama Supreme Court, the appellate court reasoned that the plaintiff

“ ‘could have read this allegedly inadequate, unspecific warning as easily as he could have

read an adequate, specific warning. And, no amount of specificity would have protected this

plaintiff, because he would not have read a warning.’ ” Id. at 1037 (quoting E.R. Squibb &

Sons, Inc. v. Cox, 477 So. 2d 963, 971 (Ala. 1985)). In other words, even if the warning were

adequate, the plaintiff would have been in no better position, and thus the failure to warn did

not cause any injury to him.

¶ 58 While we do not quarrel with the statement of law underlying BASF’s argument, we

cannot agree that any improvement in the warnings BASF provided to Flavorchem would

have been overlooked by Solis. BASF essentially asks the court to draw only one factual

inference from the evidence: if BASF had disclosed the study to Flavorchem, that

information would have been communicated solely through a revision in the MSDS, without

any accompanying announcement, and that revision would have gone unnoticed by Solis.

The evidence, when viewed in a light most favorable to Solis, does not lead to that single

factual conclusion.

¶ 59 At Flavorchem, Solis was responsible for giving employees instruction on where to

access MSDSs, and he would sometimes read various MSDSs with employees so that they

had “some understanding” of what the warnings said. When Solis was asked if he read any

MSDSs on diacetyl at Flavorchem, Solis explained that “[t]herewas no need” because he had

read “a lot of MSDSs” at FONA, including MSDSs for the diacetyl. Solis explained that

based on this knowledge, he did not have any questions about the MSDSs for diacetyl and

did not review them. Other testimony from Flavorchem employees establishes that BASF’s

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disclosure of the LC50 study to Flavorchem would have caused Solis to review the MSDS

for diacetyl or would have otherwise triggered his awareness of the study. The president of

Flavorchem, Malinowski, testified that during Solis’s tenure, the company was “proactive

at the time in dealing with diacetyl” and had meetings with employees, including Solis, about

how to handle diacetyl. Malinowski suggested that Flavorchem would have investigated

whether Solis and other employees should wear additional protective gear when using

diacetyl. As to the MSDS, Dianne Hamernick, a Flavorchem employee, specifically testified

that if Flavorchem had obtained the study as of 2001, it would have taken action to change

the MSDS:

“Q. If you had that study with all of those words that listed bloody edema, atelectasis,

hyperemia, all of those things that we just looked at, would that have changed what you

put on the Flavorchem MSDS in any way?

A. We would have brought that up to Orr Safety and seen if additional personal

protective equipment was needed and then, in turn, updated the MSDS–

* * *

Q. In terms of what you would have put on the MSDS you would have relied on Orr

Safety and those things would not have changed what you yourself put on there; is that

right?

A. Well, we would have updated it or changed it.”

What the evidence reveals is that Flavorchem communicated with employees about how to

handle diacetyl, and if given the study, Flavorchem would have updated and changed the

MSDS and possibly changed the protective equipment required to handle diacetyl. While

Solis did not repeatedly review the MSDSs for diacetyl because he felt familiar with the

information provided in them, we conclude that, in view of the evidence, the jury could have

rationally concluded that Solis would have become aware of the additional information from

the LC50 study if BASF had supplied that information to Flavorchem. The jury’s finding on

proximate cause as to the failure-to-warn claims was not “so palpablyerroneous as to warrant

a different result.” Lee, 152 Ill. 2d at 456.

¶ 60 BASF also argues that the jury should have been specifically instructed that if Solis did

not read the available warning, the alleged failure to warn did not proximately cause his

injury. The trial court has discretion to determine which instructions to give the jury and that

determination will not be disturbed absent an abuse of that discretion. People v. Simms, 192

Ill. 2d 348, 412 (2000). The standard for deciding whether a trial court abused its discretion

is whether, taken as a whole, the instructions fairly, fully, and comprehensively apprised the

jury of the relevant legal principles. Schultz v. Northeast Illinois Regional Commuter R.R.

Corp., 201 Ill. 2d 260, 273 (2002).

¶ 61 Here, where the jury was properly instructed that Solis was required to prove proximate

causation, the jury was apprised of the relevant legal principles, and BASF’s additional

instruction would have been redundant.Moreover, as the foregoing discussion illustrates, the

proposed instruction may have been confusing to the jury in light of the evidence before it.

This was not a simple case where Solis’s admission that he did not read MSDSs for diacetyl

while at Flavorchem foreclosed his abilityto prove causation. Therewas evidence suggesting

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that a change in the BASF MSDS would have triggered action by Flavorchem and caused

Solis to review the MSDS. BASF certainly could (and did) challenge the inferences to be

drawn from the evidence, arguing to the jury that Solis would never have seen any change

in BASF’s MSDS for diacetyl. Where the jury was otherwise properly instructed on Solis’s

burden to show proximate cause on the failure-to-warn theory, however, the trial court did

not abuse its discretion in denying BASF’s proposed instruction.

¶ 62 Negligence: Scope of BASF’s Duty to Warn

¶ 63 BASF next argues that the jury received an improper instruction on the failure-to-warn

claim sounding in negligence. The court instructed the jury that “Gerardo Solis claims that

he was injured and sustained damage and that BASF Corporation was negligent in one or

more of the following respects: *** in failing to disclose the results of scientific research

available to it indicating that the use of diacetyl causes lung disease or risk of harm to

others.” BASF argues that the instruction imposed an expansive duty on BASF to warn the

flavoring industry (or the world) about diacetyl’s risks, rather than those to whom BASF

distributes its product. The parties agree that Solis’s first potential exposure to BASF diacetyl

was in 2001, when BASF first distributed diacetyl to Solis’s employer, Flavorchem.

According to BASF, the instruction allowed the jury to fault BASF for failing to disclose the

study to the industry before 2001 because the instruction referenced “a duty to disclose”

without specifying that BASF only had a duty to disclose to those who receive BASF

distributed products.

¶ 64 The imposition of a duty to warn depends on whether BASF and Solis stood in such a

relationship to each other that the law imposed upon BASF an obligation of reasonable

conduct for the benefit of Solis. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.

2d 507, 525 (1987). The parties agree that BASF had a duty to warn the users of its products

of the dangers of diacetyl. See Venus v. O’Hara, 127 Ill. App. 3d 19, 23 (1984) (“[F]ailure

to warn of a product’s dangerous propensities may be a basis for strict liability in tort

[citation] and that strict liability therefore may be imposed upon all parties within the chain

of distribution, including suppliers, distributors, wholesalers, and retailers [citation].”);

Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 647-48 (1985) (noting that

distributor may be liable for failure-to-warn claim sounding in negligence (quoting

Restatement (Second) of Torts § 388 (1965))); Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 265

(1990) (noting that “[e]ach manufacturer owes a duty to plaintiffs who will use its drug or

be injured by it” but “the duty is not so broad as to extend to anyone who uses the type of

drug manufactured by a defendant”). The parties also agree that because BASF Corporation

distributed diacetyl to Flavorchem starting in 2001, it had a duty to warn Flavorchem–and

by extension Solis–of the LC50 study as of that date.

¶ 65 The question is whether the relationship between BASF and Solis’s pre-2000 employers

was such that BASF had a duty to disclose its LC50 study to those employers. There is no

suggestion on appeal that BASF supplied diacetyl to either of Solis’s previous employers,

Olmarc or FONA, so there must be some other basis for imposing a duty that runs to the

benefit of Solis. On appeal, Solis offers none. Solis (somewhat puzzlingly) argues that the

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instruction given properly reflected BASF’s duty to disclose the study to Flavorchem,

“among others.” Unfortunately, Solis presents no argument–much less any applicable

authority–to support a finding that BASF had a duty to disclose the scientific study to those

companies working with diacetyl not distributed by BASF. See Brewster v. RushPresbyterian-St. Luke’s Medical Center, 361 Ill. App. 3d 32, 35-36 (2005) (reciting fourfactor test for deciding whether a duty of care exists (citingCity of Chicago v. Beretta U.S.A.

Corp., 213 Ill. 2d 351, 391 (2004))); cf. Kirk v. Michael Reese Hospital & Medical Center,

117 Ill. 2d 507, 525 (1987) (no duty to warn running from doctors to general public who

might come in contact with doctor’s patient). The only case that Solis cites as support that

the instruction was “proper” is Elam v. Lincoln Electric Co., 362 Ill. App. 3d 884 (2005), but

in that case the court recognized a manufacturer’s duty to warn the users of its welding rods,

where the plaintiff had used welding rods made by the defendant for 30 years. See Elam, 362

Ill. App. 3d 884. We note that the jurywas properly instructed, on the strictly liability failureto-warn claim, that “BASF Corporation had a duty to adequately warn and instruct the user

about the dangers of its product ***.” (Emphasis added.) Where Solis presents no authority

for some expanded duty, we can only presume that Solis means that BASF had a duty to

disclose the study to those to whom it distributes its products, including Flavorchem.

¶ 66 We are left to consider whether the instruction given properly informed the jury that

BASF’s duty to disclose the study to Flavorchem as of 2000, when it first began distributing

its product to Flavorchem. Given the unique facts of this case, that instruction did not fairly,

fully, and comprehensively apprise the jury of the relevant legal principles. Schultz, 201 Ill.

2d at 273-74.

¶ 67 BASF contends that the instruction, without mentioning to whom the duty ran, expanded

the concept of duty to the entire flavoring industry, if not the general public. Under the facts

of this case, the court should state, specifically, that BASF’s duty to disclose ran to those

who use the products that BASF distributes. The jury heard testimony that two industry

groups, FEMA and RIFM, did not have the LC50 study until after 2000, but if they had been

provided the LC50 study in the late 1990s, they would have disseminated the information to

diacetyl users. Solis’s counsel solicited testimony from Solis’s expert witnesses that if BASF

had “come forward with this information they had in their animal study, *** the medical and

scientific communitycould have discovered the causal association in 1995 rather than 2002.”

With that evidence before the jury, and with the instruction given, there was a unique risk

that the jury would conclude that BASF had a duty to warn the entire flavoring industry.

¶ 68 BASF next argues that the instruction allowed the jury to fault BASF for failing to

disclose the LC50 before BASF could have possibly became aware of the contents of that

LC50 study before 2001. According to BASF, the instruction allowed Solis to “impute”

AG’s knowledge to BASF. To prove a product defect claim based on a defendant’s failure

to warn, a plaintiff must show “that the defendant knew or should have known, in the

exercise of ordinary care, that the product was unreasonably dangerous and defendant failed

to warn of its dangerous propensity.” Blue v. Environmental Engineering, Inc., 215 Ill. 2d

78, 96 (2005); accord Baltus v. Weaver Division of Kidde & Co., 199 Ill. App. 3d 821, 830

(1990). The trial court instructed the jury that BASF had a duty to warn with information

“available to it.” While this language comes close to the appropriate standard, we think the

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language too inexact in light of the facts of this case. Again, we note that the trial court

properly instructed the jury on the strict liability failure-to-warn claim, explaining that

“BASF Corporation has a duty to adequately warn and instruct the user about the dangers of

its products of which it knew, or in the exercise of ordinary care, should have known, at the

time the product left its control.” On remand, the court should provide a similar instruction

with regard to the negligent failure-to-warn claim, explaining that BASF only had a duty to

disclose scientific information that it knew or should have known.

¶ 69 Strict Liability: Diacetyl as Unreasonably Dangerous

¶ 70 BASF argues that Solis failed to prove that “BASF Corporation-supplied diacetyl” was

unreasonably dangerous. In a strict product liability action, “[a] product may be found

unreasonably dangerous by virtue of a physical flaw, a design defect, or a failure of the

manufacturer to warn of the danger or instruct on the proper use of the product as to which

the average consumer would not be aware.” Sollami v. Eaton, 201 Ill. 2d 1, 7 (2002) (citing

Renfro v. Allied Industrial Equipment Corp., 155 Ill. App. 3d 140, 155 (1987)). At BASF’s

request, the trial court instructed the jury that “[a] product bearing an adequate warning is not

defective, nor is it unreasonably dangerous.” To find in favor of Solis on the strict liability

claims, then, the jury had to conclude that BASF’s warning was inadequate.

¶ 71 A manufacturer has a duty to warn where the product possesses dangerous propensities

and there is unequal knowledge with respect to the risk of harm, and the manufacturer or

distributor, possessed of such knowledge, knows or should know that harm may occur absent

a warning. Sollami, 201 Ill. 2d at 7. The Restatement (Second) of Torts explains that “a seller

is not required to warn with respect to products, or ingredients in them, which are only

dangerous, or potentially so, when consumed in excessive quantity, or over a long period of

time, when the danger, or potentiality of danger, is generally known and recognized.”

Restatement (Second) of Torts § 402A cmt. j, at 353 (1965) (explaining that “dangers of

alcoholic beverages” are “generally known or recognized”). Where the product is defectively

designed or manufactured or where the possibility of injury results from a common

propensity of the product that is not obvious to the user, however, the manufacturer or

distributor must provide an adequate warning. Sollami, 201 Ill. 2d at 20 (citing Genaust v.

Illinois Power Co., 62 Ill. 2d 456, 467 (1976)). A product bearing such a warning “is not in

defective condition, nor is it unreasonably dangerous.” Restatement (Second) of Torts

§ 402A cmt. j, at 353 (1965).

¶ 72 In this case, the question for the jury was whether diacetyl itself was “unreasonably

dangerous” because it failed to contain a warning apprising Flavorchem and Solis of the

dangers of diacetyl. The nature of Solis’s claim was that BASF’s MSDS was inadequate

because it labeled diacetyl as “moderately toxic” and failed to disclose that exposure to high

concentrations of diacetyl could cause bronchiolitis obliterans. On appeal, BASF does not

claim that the potential for injury with high exposures was generally known and recognized

by those using diacetyl. Instead, BASF again argues that Solis failed to prove that he was

exposed to BASF-supplied diacetyl that exceeded a threshold “safe level.” In other words,

BASF simply repeats the argument that Solis failed to prove that he was exposed to more

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than a de minimus level of BASF’s diacetyl. We have already addressed, and rejected, that

argument. Where BASF presents no other challenge with regard to the strict liability claims,

we find no error in submitting those claims to the jury.

¶ 73 Evidentiary Errors

¶ 74 Although we have determined that this case must be remanded for a new trial, BASF

raises a number of claims of evidentiary error that are likely to arise again on remand. In the

interest of judicial economy, we address the specific evidentiary issues likely to recur on

remand. See Petre v. Kucich, 331 Ill. App. 3d 935, 944 (2002). A trial court’s decision

regarding whether to admit evidence is reviewed for abuse of discretion. Gill v. Foster, 157

Ill. 2d 304, 312-13 (1993).

¶ 75 Subsequent Remedial Measures: Changes to BASF’s MSDS

¶ 76 BASF first argues that it was improper for the trial court to admit evidence that after

Solis left Flavorchem, BASF revised its MSDS to include a specific mention that

overexposure to high levels of diacetyl may be associated with bronchiolitis obliterans.

Evidence of postaccident remedial measures is inadmissible to prove prior negligence.

Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995). Evidence of subsequent remedial

measures may be used for impeachment purposes, however, so long as the value of the

impeachment does not rest on an “impermissible inference *** of prior negligence.” Id. at

301.

¶ 77 We agree with Solis that the 2006 MSDS was properly used to impeach Dr. Weill, an

expert witness for BASF who testified that “it was not scientifically proven that diacetyl

could cause bronchiolitis obliterans” and “[t]he association between butter flavoring and

bronchiolitis obliterans is unproven.”When asked on cross-examination if he was aware that

BASF’s 2006 MSDS states that “[o]verexposure to high concentration maycause pulmonary

irritation that could be associated with lung disease (bronchiolitis obliterans),” Dr. Weill

admitted that he was not aware of this statement. BASF did not object to this testimony at

trial and fails to address it on appeal.5

¶ 78 Despite Solis’s claim that the MSDS was used to impeach other BASF witnesses, the

record shows that the 2006 MSDS was not used for impeachment with at least three

witnesses: Julie Klees, the associate medical director at BASF; Ralph Parod, a toxicologist

at BASF; and Louise Noell, product regulatory manager at BASF. None was asked whether

exposure to diacetyl caused bronchiolitis obliterans before being questioned about the

revisions to the MSDS; instead, each witness was presented the 2006 MSDS and simply

We are particularly troubled that in discussing whether the 2006 MSDS was used for 5

impeachment, BASF represented that Solis’s counsel never even attempted to impeach BASF’s

experts with the 2006 MSDS. This is not true. In its brief, BASF provides record citation to the

testimony of two of three expert witnesses, but provides no mention of BASF’sthird expert witness,

Dr. Weill. It is difficult to place an innocent construction on this crucial omission.

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asked to confirm that BASF had changed it. While we agree that the 2006 MSDS could be 6

used for impeachment for any witness who denied that diacetyl could cause bronchiolitis

obliterans, the MSDS was not properly used to impeach these witnesses.

¶ 79 We turn to Solis’s alternative argument, raised for the first time on appeal, that the

change in the MSDS was admissible because BASF did not act voluntarily, but was required

to act by an outside governmental authority. See, e.g., Bulger v. Chicago Transit Authority,

345 Ill. App. 3d 103, 110 (2003); LoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684, 693

(1999); Gaunt &Haynes, Inc. v. Moritz Corp., 138 Ill. App. 3d 356, 365 (1985) (finding that

postlawsuit change to entrance was “not a voluntary act” because it was required by

Department of Transportation order). Solis claims that the OSHA Hazard Communications

Standard (29 C.F.R. § 1910.1200(a) et seq.) requires chemical manufacturers to post new

information regarding hazards posed by a chemical within three months of the receipt of the

information, and BASF’s changes to its MSDS therefore was not a voluntary act, but was

required by government authority. We disagree. First, we question whether BASF, as a

distributor, was under an obligation to act under the specific provisions that Solis identifies,

which Solis asserts apply to manufacturers. Second, there is no testimony from BASF

personnel that BASF revised its MSDS pursuant to mandatory OSHA requirements or any

other outside government authority. The impetus for the changes appears to be

correspondence from the California Department of Health Services in May 2006

recommending revisions to the MSDS for diacetyl, and Solis points to no testimony showing

that the California department did (or could) mandate a change to BASF’s MSDS. Where

no testimony establishes that BASF’s action was not a voluntary, discretionary act, any use

of the 2006 MSDS for purposes other than impeachment was improper.

¶ 80 Hearsay Documents

¶ 81 BASF argues that several documents were improperly admitted into evidence. BASF

contends that these documents are hearsay and not admissible under any exception to the

hearsay rule.

¶ 82 BASF first challenges the admission of a case report authored by Dr. Yadava, Solis’s

treating pulmonologist, and a number of other physicians, which was published in a medical

journal between the time of the filing of the lawsuit and trial. We agree with BASF that was

By contrast, other BASF witnesses agreed that diacetyl was harmful to the lungs and could 6

cause bronchiolitis obliterans without reference to the 2006 MSDS. For example, Patrick Conner,

a medical director for BASF, testified that he understood that diacetyl has “toxicity to the lungs,”

based on his review of a study by Dr. Price at NIOSH that found that “bronchiolitis obliterans was

being caused in workers overexposed to diacetyl.” Similarly, Pherne Lewis agreed that diacetyl can

cause “serious lung disease.” Even Julie Klees, who was questioned about the 2006 MSDS, agreed

that “overexposure to high concentrations of diacetyl may cause pulmonary irritation that could be

associated with lung disease such as bronchiolitis obliterans.”

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error to admit the case report as substantive evidence at the postverdict exhibit conference.7

The trial court’s stated grounds for admitting it–that it was a “document authored by this

particular witness”–is not a recognized hearsay exception.

¶ 83 Solis argues that it was nonetheless proper for Dr. Yadava to refer to the report during

his testimony because Yadava reasonably relied on the report to explain the basis for his

opinion. “[T]he underlying facts or data upon which an expert in a particular field is found

to have reasonably relied are not admitted for their truth. The underlying facts or data are

admitted ‘for the limited purpose of explaining the basis for the expert witness’ opinion.’ ”

City of Chicago v. Anthony, 136 Ill. 2d 169, 185 (1990) (quoting People v. Anderson, 113

Ill. 2d 1, 12 (1986)). The record shows that the case report was not used to explain the basis

for Yadava’s opinion; the published article simply rehashed and confirmed Yadava’s

testimony. The case report’s only purpose was to bolster Yadava’s opinion testimony by

showing that he (and other doctors) had previously reached the same conclusion in a case

report that was accepted and published in a medical journal. Use of the case report for this

purpose was improper. See People v. Prince, 362 Ill. App. 3d 762, 776 (2005) (concluding

that expert’s testimony that her work was “peer reviewed and verified by anotherresearcher”

was improper, where there was no testimony that expert relied on opinions of others in

forming an opinion, and noting that “the peer review or verification necessarily takes place

after the expert has alreadydone his or her work”); Michael H. Graham, Graham’s Handbook

of Illinois Evidence § 703.1, at 685 (10th ed. 2010) (“[T]he content of the published material

to be read to the jury must be reasonably relied upon as a basis for the expert’s opinion, not

merely to corroborate that opinion.”). It was error to question Dr. Yadava about his published

article, where the only function was to bolster his opinion testimony.

¶ 84 BASF also challenges the admission of two letters sent to Dr. Yadava by two physicians

who also examined Solis: Dr. Gottschall of National Jewish Hospital in Denver, Colorado,

and Dr. Orris. Both letters recounted the doctors’ views of Solis’s condition and his work

history, and in the letters, both physicians concluded that Solis’s bronchiolitis obliterans was

induced byhis work with diacetyl. The trial court admitted both as substantive evidence, over

objection. In a postverdict conference, the court ruled that the letter from Dr. Gottschall to

Dr. Yadava was a medical record, and the trial court admitted the Orris letter during trial

The trial court held a conference to admit several exhibitsinto evidence several weeks after

7

the jury returned its verdict. While the parties apparently agreed that no exhibits would go back to

the jury unless it requested a specific exhibit (which the jury did not), we find it troublesome that

the court ruled on the admissibility of the documentary exhibits after the verdict. The exhibits

considered at the conference were either read into the record or displayed to the jury during witness

testimony. We question how the trial court could rule, over objection, that a particular document

could be shown or read to the jury, but the court could later conclude, based on argument after the

verdict, that the document was “inadmissible.” For example, at the postverdict conference there were

several objections based on hearsay and foundation; if any of these documents lacked foundation or

were hearsay, they should not have been presented to the jury during trial. A document’s

admissibility, the basis for its admission, and any appropriate limiting instruction should be ruled

upon during trial, not after the verdict.

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after a conversation took place off the record.

¶ 85 “Medical records are *** admissible in Illinois courts as long as a sufficient foundation

is laid to establish that they are business records.” Troyan v. Reyes, 367 Ill. App. 3d 729, 733

(2006); see also Ill. R. Evid. 803(6) (eff. Jan. 1, 2011). “Satisfying foundational requirements

to admit business records requires that the party tendering the record establish that the record

was made in the regular course of business at or near the time of the event or occurrence.”

Werner v. Nebal, 377 Ill. App. 3d 447, 457 (2007); Kimble v. Earle M. Jorgenson Co., 358

Ill. App. 3d 400, 414 (2005). Any person familiar with the business and its mode of operation

may provide testimony establishing the foundational requirements of a business record. In

re Marriage of Fields, 283 Ill. App. 3d 894, 905 (1996).

¶ 86 Dr. Yadava explained that he referred Solis to two specialists, Dr. Gottschall and Dr.

Orris, and those doctors reported back to him in writing. Dr. Yadava certainly received the

doctors’ reports in the regular course of his practice, as necessary to fashion a proper course

of treatment for Solis, and he was, of course, familiar with his practice and its mode of

operation. Although we recognize that Dr. Gottschall and Dr. Orris did not make their

records in the regular course of Dr. Yadava’s medical practice, the incorporation of those

letters into Dr. Yadava’s course of treatment is enough to satisfy the business records

exception. “Where a third party is authorized by a business to generate the record at issue,

the record is of no use to the business unless it is accurate and, therefore, the record bears

sufficient indicia of reliability to qualify as a business record under the hearsay rule.”

Argueta v. Baltimore &Ohio Chicago Terminal R.R. Co., 224 Ill. App. 3d 11, 20-21 (1991).

While we acknowledge that “a person receiving a document from a business could not solely

by virtue thereof lay a sufficient foundation for admitting the document,” there is an

exception where “the business receiving the information, acting in the regular course of

business, integrates the information received *** and relies on it in its day-to-day

operations.” Michael H. Graham, Graham’s Handbook of Illinois Evidence § 803.6 (10th ed.

2010) (collecting cases). The trial court did not abuse its discretion in admitting the reports

sent to Dr. Yadava.

¶ 87 The next document at issue is a handwritten note that Solis received from Dr. Rose at

NJH, which stated “I am worried that you mayhave bronchiolitis obliterans (BO) from flavor

chemicals.” Solis testified about the note, explaining that he asked Dr. Rose to write down

the diagnosis so that he could remember the name “bronchiolitis obliterans.” BASF forfeited

this objection for review because it did not object to Solis testifying about the note. See

Stapleton v. Moore, 403 Ill. App. 3d 147, 156 (2010). Moreover, at trial BASF did not

dispute that the document was not offered for the truth of the matter asserted, but was used

to show that Solis was on notice of his diagnosis. See Brawner v. City of Chicago, 337 Ill.

App. 3d 875, 888 (2003) (When “out-of-court statements are offered to prove their effect on

a listener’s mind or to show why the listener subsequently acted as he did, they are not

hearsay and are admissible.”). The Department of Labor questionnaire, in which Dr. Yadava

provides a summary of Solis’s medical condition, was not admitted into evidence until the

postverdict conference. At the conference, Solis’s counsel informed the trial court that Dr.

Yadava had testified regarding the document. In fact, Dr. Yadava did not provide any

testimony about the document, and Solis references no other testimony that would establish

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a foundation for admitting the document as a medical record. The questionnaire should not

have been admitted as substantive evidence.

¶ 88 AG’s German MSDS

¶ 89 BASF next challenges the trial court’s decision to admit an MSDS apparently created by

BASF’s German parent company, AG, in 1996 (German MSDS). AG’s German MSDS used

the words “harmful by inhalation,” but BASF’s MSDS did not. Solis argues that it was

improper for Solisto question Julie Klees and Ralph Parod about the German MSDS, display

the German MSDS to the jury, and then admit the German MSDS into evidence, where Solis

called no witness to lay a foundation for the German MSDS and simply asked BASF

witnesses to compare the language in the German MSDS to BASF’s MSDS. (BASF explains

that BASF produced a copy of the German MSDS to Solis’s counsel during discovery in

another lawsuit.) Solis acknowledges that a proponent of documentary evidence must lay a

foundation for its introduction by showing that record was made in the regular course of

business and that the record is what it is claimed to be. See, e.g., Anderson v. Human Rights

Comm’n, 314 Ill. App. 3d 35, 42 (2000) (citing Michael H. Graham, Cleary & Graham’s

Handbook of Illinois Evidence § 901.1 (7th ed. 1999)); Kimble v. Earle M. Jorgenson Co.,

358 Ill. App. 3d 400, 415 (2005). But on appeal, Solis references no testimony that explains

how the German MSDS was created or otherwise provides any foundation for using it to

cross-examine fact witnesses. As noted above, in the absence of evidence regarding the

circumstances of a document’s creation, “the business records exception is not justified

merely by evidence regarding the practice of the document’s retention.” Apa v. National

Bank of Commerce, 374 Ill. App. 3d 1082, 1088 (2007). Questioning Klees and Parod about

the German MSDS, without laying a sufficient foundation, was improper.

¶ 90 Solis’s Calculations

¶ 91 BASF next challenges the trial court’s decision to allow Solis to testify regarding

calculations he made about BASF’s sales of diacetyl to Flavorchem. On redirect

examination, Solis pulled a piece of paper out of his pocket and explained that he had

calculated how much diacetyl BASF supplied to Flavorchem. He based his calculations, done

over lunch apparently without the knowledge of his attorneys, on Flavorchem purchase

records he saw on counsel’s table. (It is unclear if the purchase records had previously been

admitted into evidence.) These records extended from 1998 to 2006 and included all sales

of diacetyl, without distinguishing whether the diacetyl was used in the powder room and

liquid room.

¶ 92 On appeal, Solis contends that the records were properly used as a “demonstrative aid”

for his testimony. Solis’s calculations were not used to explain or illustrate this testimony,

however; he testified that he had no knowledge of the information contained in the records

before he found them on counsel’s table. Solis had previously testified that he believed that

BASF supplied 50% of the diacetyl Flavorchem used between 2000 and 2004, but that

estimate was based on his encounters with BASF diacetyl at the Flavorchem facility. Solis

used the record he found in an attempt to reinforce his testimony, not illustrate it. Solis could

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offer no definitive testimony about what information was contained in the records, and he

could not lay a proper foundation to establish that the records were what he claimed them to

be. See Anderson, 314 Ill. App. 3d at 42. The manner in which Solis attempted to inject the

sales information at trial was improper.

¶ 93 Improper Expert Testimony

¶ 94 We have already addressed some of BASF’s complaints regarding the testimony of

Solis’s experts regarding causation. BASF also argues that Dr. Egilman improperly testified

that BASF may have indirectly supplied diacetyl to FONA. Over objection, Dr. Egilman

testified BASF may have supplied diacetyl to C&A, and C&A supplied diacetyl to FONA.

Dr. Egilman then went on to opine that even though he could not trace how much, if any,

BASF diacetyl Solis was exposed to at FONA, BASF could have prevented Solis’s injuries

if it had adequately warned FONA about the harmful effects of diacetyl. On crossexamination, Dr. Egilman admitted he did not know whether C&A sold any BASF diacetyl

to FONA. It is well established that “expert opinions based upon *** guess, speculation, or

conjecture as to what *** might have happened are inadmissible.” Modelski v. Navistar

International Transportation Corp., 302 Ill. App. 3d 879, 886 (1999). It was improper to

allow Dr. Egilman to testify about a wholly speculative link between BASF diacetyl and

FONA and to further testify that based on that supposed link, BASF’s failure to warn FONA

contributed to Solis’s injury.

¶ 95 Exclusion of Statute of Limitations Evidence

¶ 96 BASF next argues that the trial court improperly barred BASF from questioning Solis

about his statements in medical records kept by his physician, Dr. Sherman. On crossexamination, counsel for BASF questioned Solis about a meeting he had with Dr. Sherman.

When Solis testified that he could not remember the meeting, counsel then attempted to

refresh Solis’s recollection with Dr. Sherman’s records:

“Q. Did you tell Dr. Sherman, on December 15, 2004, that you had exposures to

chemicals and fumes while you were at work. Does that help you with that?

A. I don’t think so, no.

Q. Okay. You don’t remember?

A. I don’t remember.

Q. All right. You don’t dispute what he says in the record?

[Solis’s Counsel]: Your Honor, the record–I don’t think it can be used that way.

THE COURT: Sustained.”

BASF did not pursue the line questioning. BASF apparently relied on an entry from Dr.

Sherman’s records that Solis “did relate significant occupational exposures at that time.”

¶ 97 We find no error in the trial court’s ruling. Where counsel’s attempt to refresh

recollection failed, counsel could not simply press on and ask if Solis disputed the contents

of a letter Dr. Sherman sent to another physician. Counsel could have attempted to impeach

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Solis’s trial testimony through the introduction of admissible evidence sufficient to establish

that Solis made the statement to Dr. Sherman. See, e.g., People v. Shatner, 174 Ill. 2d 133,

153 (1996) (where witness testified that she did not remember giving a statement to

detective, counsel could only impeach her through the testimony of the detective, not by

using the detective’swritten statement on cross-examination). Moreover, because BASF now

argues that this evidence was relevant to its statute of limitations defense, BASF must

establish that the evidence was admissible not just for impeachment purposes, but as

substantive evidence (i.e., to prove that Solis did in fact relate “significant occupational

exposures” to Dr. Sherman). Even though Solis’s statement may be admissible as a party

opponent admission, BASF must also establish that Dr. Sherman’s letter meets some

exception to the hearsay rule in order to rely on Solis’s admission. See, e.g., Horace Mann

InsuranceCo. v. Brown, 236 Ill. App. 3d 456, 461 (1992) (Where one out-of-court statement

is found within another out-of-court statement, “both levels must fall within an exception to

the hearsay rule in order to be used as substantive evidence.”). Where BASF did not properly

pursue any questioning to impeach Solis or to introduce his statement as an admission of a

party opponent, the trial court did not err in its ruling.

¶ 98 Instructional Errors

¶ 99 BASF presents two arguments as to the jury instructions. The trial court’s decision on

which instructions to give the jury will not be disturbed absent an abuse of that discretion.

Simms, 192 Ill. 2d at 412. The standard for deciding whether a trial court abused its

discretion is whether the instructions fairly and fully apprised the jury of the relevant law.

Schultz, 201 Ill. 2d at 273-74.

¶ 100 BASF argues that the trial court abused its discretion in giving IPI 400.10, which states

in part, “it is not a defense that the condition of the product could not have been discovered

by BASF Corporation or that care was used in the manufacture of the product.” The trial

court noted that it gave the instruction to address BASF’s contention that BASF did not

breach its duty to warn because it did not know of the harmful effects of diacetyl and did not

know of the LC50 study before Solis’s exposure. We agree with BASF that the instruction

should not have been given. While BASF argued that it could not have known about the

harmful effects of diacetyl, it did not advance a “due care” defense by claiming that BASF

exercised care in the manufacturing process or could not discover the condition of the

product. See Baier v. Bostitch, 243 Ill. App. 3d 195, 208 (1993) (Illinois Pattern Jury

Instructions, Civil, No. 400.10 (2d ed. 1971) was appropriate where defendant’s engineer

“testified as to the defendant’s extensive testing processes and as to the developments and

new materials in manufacturing processes”). BASF was a distributor, not a manufacturer.

Moreover, Illinois Pattern Jury Instructions, Civil, No. 400.10 (Supp. 2009) (hereinafter, IPI

Civil (Supp. 2009)) “should not be given if plaintiff’s claim of liability is failure to warn.”

IPI Civil (Supp. 2009) No. 400.10, Notes on Use, at 120. In this case, IPI Civil (Supp. 2009)

No. 400.07D addressed the appropriate standard for the failure-to-warn claim by instructing

the jury that “BASF Corporation has a duty to adequately warn and instruct the user about

the dangers of its product[s] of which it knew, or, in the exercise of ordinary care, should

have known, at the time the product left its control.” IPI Civil (Supp. 2009) No. 400.07D.

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That instruction fully addressed any claim that BASF did not know or should not have

known about the harmful effects of diacetyl. See Woodill v. Parke Davis &Co., 79 Ill. 2d 26,

35 (1980) (finding that the “knew or should have known” standard is appropriate for strict

liability failure-to-warn cases).

¶ 101 BASF argues that the trial court abused its direction in giving IPI Civil (Supp. 2009) No.

400.07C, stating that “BASF Corporation has the duty to manufacture and sell a product that

is not in an unreasonably dangerous condition. That duty cannot be delegated to another.”

While it was unnecessary to include a reference to a “duty to manufacture” with respect to

BASF, the trial court did not abuse its discretion in giving IPI Civil (Supp. 2009) No.

400.07C, stating that BASF has a nondelegable duty to “sell a product that is not in an

unreasonably dangerous condition.” An instruction is justified when it is supported by some

evidence, even slight, in the record. Leonardi v. Loyola University of Chicago, 168 Ill. 2d

83, 100 (1995). Here, a BASF employee testified that employers like Flavorchem are

required by OSHA to understand the chemicals that are brought into the workplace and the

engineering controls needed to handle those chemicals. We find no abuse of discretion in

giving this instruction based on the evidence before the trial court.

¶ 102 CONCLUSION

¶ 103 We conclude that it was error to direct a verdict in favor of Solis on the statute of

limitations issue, and we must therefore reverse and remand for a new trial. We also find

errors in the admission of evidence and the jury instructions. Solis nonetheless argues that

any proceedings on remand should be limited to the question of Solis’s liability, leaving the

damages award to stand. We disagree. 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. A

liability-only retrial is therefore inappropriate. See Banovz v. Rantanen, 271 Ill. App. 3d 910,

920 (1995) (exercising discretion to order partial liability-only retrial where amount of

damages awarded to plaintiffs was completely unaffected by error in failing to dismiss

defendants’ counterclaims against one another); Tyco Electronics Corp. v. Illinois Tool

Works, Inc., 384 Ill. App. 3d 830, 835 (2008) (finding damages-only retrial inappropriate

where “the precise acts for which a defendant is held liable determine the extent of liability”).

For the foregoing reasons, we reverse and remand for a new trial.

¶ 104 Reversed and remanded.

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