## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Solis v. BASF

Corp. , 2012 IL App (1st) 110875

Appellate Court Caption GERARDO SOL I S, Plaintif f- Appellee, v. BA SF CORPORATI ON, Def endant- Appellant.

District & N o. First District, F ourth Division Docke t No. 1-11-0875

Filed October 4, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n a neg l i gen ce and strict liability action alleg ing that plaintiff’s lungs

wer e injured by a sy

nthetic chemica l he used in his work in the flavoring industry
, the tr i al court’s err or in direc ting a verdic t for plaintiff on defe ndant distributor’s claim that the action was barr ed by the statute of limit ations require d that the cause be rema nded for a n ew trial, since defe ndant prese nted evidenc e plaintiff knew of the poss i b l e wrong ful

cause of his lung cond i t i o n m ore than two y ear s prior to the time his complaint was filed.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 2006-L -012105; the Hon. Clare E . McWill iams, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l J ohn N. Scholnick, Neil L loyd, Heidi K. Oe rtle, and Shelley L

. Merkin, all of Schiff H ardin L L P, of Chicag o, for a ppellant.

Kenn et h B. McClain, of Humphrey
, Fa rring ton & McClain, of I ndepende n ce, Missouri, and Susan For d Robertson, of Robertson L aw Group, of K ansas City , Missouri, for appe llee.

Panel J USTI CE EPS TEI N deliver ed the judg ment of the c ourt, with opinion.
J ustices McB ride a

nd Howse c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 I n this persona l injury case , plaintiff Ger ardo Solis claims that his lu n gs we re i n jured while he worke d with diace ty l, a sy nthetic chemica l used in artificia l butter flavoring

. Solis broug ht neg lige nce and strict liability claims for failure to war n and defe ctive desig n ag ainst BA SF Corporation (B ASF), one of the distributors that supplied diace ty l to So li s ’s employ er, Flavo rc hem. The jury returne d a verdic t for Solis
, and BA SF now appea ls. BA SF raises a host of leg al and evidentiar y err ors, which it claims are the basis for a judgme nt as a matter of law or at least a new trial. Most centr al to our resolution of this appea l, BA SF claims that the trial court err ed by direc ting a verdic t in favor of Solis on BA SF’s statute of limit ations defe nse, wher e BA SF prese nted evidenc e that Solis was awa re of his lung injury and its
wrong ful cause more than two y ear s befor e he filed sui t. Be cause we find err or i n the t rial court’s decision to direc t a verdic t in favor of Solis on the statute of limit ations question, we

reve rse a nd rema nd for a new tria l.

¶ 2 BA CKGROUND ¶ 3 We provide an overvie w of the rele vant fa ct s , an d we ex p l o re the trial testimony in
g reater detail, as nece ssary , as part of our analy sis. BA SF primarily arg ues that the evidenc e

was insufficient as a matter of law to suppor

t Solis’s claims, and we there fore focus on the evidenc e pre sented by

Solis , as the pa

rties have on appea l.

¶ 4 Solis ’s Employ ment History ¶ 5 Ger ardo Solis worke d in the flavor i n g i n d u stry for near ly 20 y ear s for three differ ent I llinois employ ers

. Fr om 1987 to 1989, Solis worke d as a quality control technicia n and assistant supervisor at Olmarc Pa ck ag ing (Olmarc ), which packa g ed cake mix es, cer eals, microwave popcorn, and s im il a r f o ods for companies like Pill sbury

. Solis sometimes worke d in a product i o n are a at the Olmarc plant wher e butter flavoring s wer e mix ed with other ingr edients.

-2-¶ 6 Fr om 1989 to 1998, Solis worked at Flavor s of North Americ a (F ONA)
, which made

flavoring s (including cher ry , blueber

ry , vanilla, and butter) for food ingr edients. Solis started

as a compounder
, a job wher e he mix ed differ ent ingr edients into a fini s hed form, befor e becoming a supervisor in 1991. Solis worke d in two parts of the production are a: the spray dry are a, wher e he would heat a flavore d liquid until it beca me a powder ; and the liquids and powder s are a, wher e various piece s o f eq u i pment wer e used to make flavoring
, including butter flavoring

. As a compounder and supervisor in the production are a, Solis worke d with diace ty l and other c hemicals, includingace toin, buty ric a cids, and be nzaldehy de. ¶ 7 Fr om 1998 to 2006, S o l i s wo rk ed at Flavor chem, another manufa cture r of flavorings. Solis ag ain worke d as a compounder for approximately two y ear s and then was promoted to

a supervisor. I n both positions, Solis spent about 90% of his time in the powder are a making powder ed flavoring s, and he worke d in the liquids are a for about 10% of his time. I n 2000, Solis noticed an uptick in the use of diace ty l in butter and other flavoring

. Solis testified that his “ main exposure” to dia cetyl in butter flavors was from 2000 to 2004, a nd from 2004 to 2006, he was around diace ty l less often when there was an incre ase in hiring at Flavor chem. Solis worke d with a varie ty of chemica ls, including ace toin, benzaldehyde, and buty ric acid. Whil e he was mix ing p roducts, Solis would sometimes wea r a dust mask or a car

tridg e respirator, but he would take this off while wa lking a round the produc tion area

.

¶ 8 BA SF’s Supply of Diac etyl to Flavorc hem ¶ 9 BA SF distributed diace ty l during parts of the 1990s and 2000s. BA SF purcha sed diac etyl from BA SF’s indirect Ger man pare nt company , BA SF Aktieng esellscha ft (AG)
, which had 1 it manufa cture d by a third-par ty contra ctor. BA SF sold no diace ty l to Olmarc or FON A while Solis worke d there

. BA SF s old diace ty l to Flavor chem to make both li q u i d an d p o wder ed flavors, but Flavor chem purcha se rec ords (showing the total amount of diace ty l Flavor chem purcha sed from BA SF, b y d ate) do not specify how m uch diacetyl was used to make each ty pe of f lavoring

. ¶ 10 The batch rec ords at Flavor chem (identify ing the supplier of the diace ty l u s ed in eac h batch) show that from 2003 u ntil J une 2006 (whe n Solis left), Flavor chem used 4,133.57 pounds of diace ty l in the powder room, of which BA SF supplied 8.4% (347. 5 5 p o u n d s ). These wer e the only batch rec ords available : the president of Flavor chem, Ken Malinowski, testified that befor e J anuar y 1, 2003, there was no rec ord of which company ’s diace ty l was used in particula

r batche s of flavoring s. During Solis ’s tenure at Flavor chem, from 1998 to 2006, 9
, 9 34.5 pounds of diace ty l wer e used in the powder room, meaning that BA SF supplied at least 3.5% of the diace ty l used in the powder room. Dr. David Eg ilman, an expert for Solis
, testified that if he assumed that the BA SF diace ty l in the plant was 2.5% to 3% of the diace ty l supplied to Flavor chem during the time Solis worke d there
, that amount would

BASF is a whol ly owned sub si di a r y o f B ASF Am er ic as Corp ora ti on; BASF Am er ic as 1 Corp ora t i o n is a whol ly owned sub si dia ry of BASFI N Corp ora ti on; BASFI

N Corp ora ti on is a

m aj ori ty- owned sub si dia ry of BASF Nede rl and BV
, a Dutc h li m it ed li abi li ty company; and BA SF Nede rl andBV is in tu rn a who ll y owned s ubs idi ar y of BASF SE (f ormerl y k nown a s BASF AG)

.
-3-have been enoug h to cause Solis ’s disease (bronc hioliti s obliterans), even “if it was his only

exposure.” ¶ 11 Solis testified that from 2000 to 2004, he used diace ty l on a daily basis in the powder mix

are a. Acc ording to a health and hyg iene study conducte d by National J ewish Hospital (NJH)
at Flavor chem, the highe st levels of diace ty l in the Flavor chem plant wer e in the dry mix or powder are a, wher e Solis spent the majority of his time. Solis rec alled using diace ty l supplied by Polarome, Citrus & Allied (C&A ), O’L aughlin, a nd Elan. He estimated that 50% of the diace ty l used in the plant betwee n 2 000 and 2004 was BA SF diace ty l. Solis testified on

cross-e x amination that his estimate was based on his memory that BA S F’s label appear ed

on barr els of diace ty l and that many of the formulas he mix ed contained diace ty l. On redire ct examination, Solis testified his estimate was confirme d by revie w of Flavor chem purcha se

rec ords that purportedly showed the entire amount of diace ty l (used to make po wder and liquid flavoring s) that B ASF supplied to Flavorche m.

¶ 12 BA SF MSDS and the L C50 St udy ¶ 13 Solis ’s failure -to-wa rn claims cente r on materia l safe ty data sheets (MSDSs) for diac ety l that BA SF provided to Flavor chem. Fe dera l Occ upational Safety and Hea lth Administration (O S HA ) regula

tions require sellers and distributors of chemica ls to provide MSDSs t o purcha sers, and these purcha sers must make MSDSs available to their employ ees. OSHA’s
regulations also require employ ers to train employ ees to rea d and understand MSDSs. As Dr. Sandler, an expert witness for BA SF, explained, employ ers “must take these MSDSs, teac h the employ ees how to rea d them and what they mean” and “must train them as to the labels that are provided.” ¶ 14 Solis claims that BA SF’s MS DS for diacetyl fai led t o adequately disclose information from a 1993 study
, perf

ormed by AG, entitled “Study on the acute inhalation tox icity L C50 of Diace ty l FCC as a vapor in rats 4-hour exposure.” The “L ethal Concentration 50” (L C50) 2 study showed that “[d] uring necr opsy all animals that died showed g ener al cong estion,” that “[e]x posure to high conce ntration led to atelac tasis and bloody edema of the lungs, bronchia l edema and intensified hydrothorax,” an d t hat “the mid and high conce ntration g roups

reve aled exten s i v e hy

pere mia of the lung, *** [and] moderate emphy sema and foca l h y p er em i a o f t he lungs.” The study conclude d that the l evel at which 50% of t he rats died (betwe en 2.25 and 5.2 mg/l exposure for 4 hours) fell within a conce ntration rang e classified as “mode rate ly

tox ic.” ¶ 15 BA SF rec eived it s MSDSs for diace ty l from AG. Fr om 1995 to 2006, BA SF’s MSDS
repor ted the study data as “Rat, Inh al ati on L C50–2.25-5.2 MG/L ” with the desig nation “Moder ately Tox ic.” BA SF’s MSDS stated that “[ i ] n h alation cause s irritation to the respiratory trac t” and also repor ted that “[t] here are no known chronic eff ects associate d with
t h i s m ater ial.” The MSDS advised using an “[a]pproved org anic vapor mist respirato r as

n ecessary” and “loca l exhaust to control vapors/mists.” In May 2006, the Calif o rn i a

For inh al at ion exp er iments
, the con cen tr at ion of the che m ic al in ai r tha t kill s 50% of the 2
te stani m al s i n a giv en t ime (us ual ly fou r h our s) is th e LC50 value

.
-4-Depa rtment of He alth Service s contac ted B ASF about r evisions to the MSDS for diac etyl. BA SF subsequently chang ed its MSDS in J une 2006 to add the phrase “Ove rex p o s u re to high conce ntrations may cause pulmonary irritation that could be associate d with lung disease ( bronchiolitis oblit era ns).” ¶ 16 At Fl avorc hem, Solis was responsible for g iving employ ees instructi o n o n wh er e t o

acc ess MSDSs, and he would sometimes r ead various MSDSs with employ ees so that they had “some understanding ” of what the war nings said. When asked if he rea d any MSDSs on diace ty l at Flavorche m, Solis explained that “[t] here was no need” beca use he had read “a lot of MSDSs” at FONA, including M S DS s for the diace ty l. As to the MSDS, Dianne Hamer nick, a Flavor chem employ ee, testified that if Flavor chem had the study in hand as of 2001, it would have “update d” and “cha ng ed” the MSDS and “see n if additional p er s onal protec tive equipment was ne eded.” ¶ 17 Whil e the parties agree that BA SF rec eived a copy of the L C50 study from AG no ear lier than 2001, Solis introduced evidenc e reg arding the inability of industry g roups to obtain the study (or simil ar information) in the 1990s. Solis prese nted testimony from J ohn Hallag an, g ener al counsel for the Flavor and Ex trac t Manufa cture rs Association (F EMA), an industry
tr ade org anization. He testified that FEMA maintains a databa se that contains safe ty information for diace ty l, available to members of FEMA and the Resear ch Instit u t e for Fr ag ranc e Materia ls (RI FM), the scientific arm of the flavoring industry

. Hallag an testified that had FEMA been provided the L C50 study in the late 1990s, it would have disseminated the information to diace tyl users. Solis ’s co u n s el solicited testimony from Solis ’s expert wi t n es ses that if BA SF had “come forwa rd” with the study in the 1990s, the medi ca l an d scientific community could have discovere d the causa l a s s o c iation betwee n diace ty l and lung injury befor e 2002.

¶ 18 Solis ’s Lung Conditi on and Diagnosis W ith Bronc hioliti s Obliterans ¶ 19 I n 1990, a y ear afte r starti n g wo rk at FO NA, Solis was diag nosed 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 y ear betwee n 1990 and 1999 for treatment. Soli s testified that as of 1998, he had shortness of breath, coug hing, and whee zing. In 1999, Solis took a pulmonary function test as part of an initial health clea ranc e at Flavor chem. Acc ording to Solis ’s expert, Dr. Allen Parmet, the test sho wed “obstructive lung disease,” though he descr ibed Solis ’s
sy mptoms as “manag eable ” prior to 2000. ¶ 20 I n 2004, Flavor ch em m an age m en t i n v ited doctors from NJ H, who provide “ expert advice ” to flavoring plants, t o d o an assessment of the Flavor chem fac ility and worke rs’ health at the plant. As part of the visit, Solis rec eived another pulmonary function test. The
test showed decr ease d lung function, and Dr. Cecile Rose, a pulmonologis t at NJ H,

rec ommended that Solis be taken out of the dry mix are a. 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 qu es t i o n n aire in connec tion with one of NJ H’s visits. As part of the questionnaire, S o l is was asked if he felt that particula r tasks or proce sses in his job wer e likely to cause breathing problems, and he chec ked “y es.” He al s o re s p o n d ed “yes” to the

-5-question “Ar e y our sy mptoms worse at work? ” S olis testified t hat at t h e ti me he filled out this questionnaire, he felt that working around cer tain chemica ls, including diace ty l, “ca used [hi s] breathing problems.” I n J une 2006, Solis was told by Dr. Rose of NJ H that he had the lung disease b ro n ch i o l itis obliterans, a rar e lung disease in which the bronchioles, the branc hes near the end of the bronchia l tree , are scar red, obstructing the airflow. Dr. Rose told Solis that his c ondition wa s cause d by exposure to dia cety l a t w ork, and Solis testified that this was the first time he understoo d t h at his lung condition was cause d by chemica l
exposure. ¶ 21 Be fore his diag nosis, Solis ’s lung condition had been g rowing progressively worse since 2000, just as the diace tyl usag e incre ased at Flavor chem. He visited t h e em er gen cy room

more often, his sy

mptoms b ec am e m o re sever e, and he was hospitaliz ed for a few day s. Dra wing from results of Solis ’s lung function tests, Dr. Eg ilman explained that Solis had lost
ten perc ent loss of lung function betwee n 2000 and 2009. He noted that Solis was at a “risk of death” i f he contra cte d a co l d
, s m all virus, or i nfec tion. Acc ording to Dr. P arme t, Solis was “ perma

nently and totally

disabled” a

nd was in nee d of a lungtransplant.

¶ 22 Procee dings B elow ¶ 23 Solis initially filed suit on November 17, 2006, ag ainst 20 defe ndants, arguing that eac h

was responsib le f

o r So li s c ontrac ting bronchiolitis obliterans from exposure to diace ty l. Solis filed an amende d complaint on Au gu st 30, 2007, adding BA SF as a party

. BA SF was the

o n l y re m ai n i n g defe ndant at trial. After the jury returne d a verdic t of $32 milli on, finding Solis 5% at fault and BA SF 95% at fault, the trial court denied BA SF’s posttrial motions for judgme nt notwithst andingthe ver dict or a ne w trial. This appe al followed.

¶ 24 ANALYSI S ¶ 25 BA SF contends that it is entitled to a judgme nt as a matter of law, or at least a new tria l, for three principal rea sons. First, BA SF argues that the trial court err ed in direc ting a verdic t in favor of Solis on BA SF’s statute of limit ations defe nse, wher e there was evidenc e showing that Solis knew of his injury and its wrong ful cause more than two y ear s befor e he filed suit
ag ainst BA SF. Second, BA SF argues t h at there was insufficient evidenc e of causation beca use Solis failed to show that diace ty l supplied by BA SF was a substantial fa ct o r in causing his injury
, and beca use Solis admitted that he did not rea d BA SF’s MSDSs at Flavor chem. Third, BA SF arg ues t hat t he jury was im proper ly instructed that BA SF had a duty to warn the flavoringindustry –and not just the users of its diace ty l–about the hazards of diace ty l. Apar

t from these issues, BA SF argues that Solis failed to make t h e n ec es sary showing that di ac et y l was unrea sonably dang erous in order to support his strict liability claims. BA SF also raises sever al claims of evidentiar y and instructional err or, arguing that it is entit led to a new

trial. ¶ 26 At the outset, we mark the bounds of our revie w on BA SF’s argument that it was e ntitled to judgment notwiths tanding the verdict (judg ment n.o.v. ) and that it was improper for the trial court to enter a direc ted verdic t in favor of Solis on the statute of limit ations issue. “[I ]t is the province of the jury to resolve conflicts in the evidenc e, to pass upon the cre dibilit y of

-6-the witnesses, and to decide what weig ht should b e gi v en to the witnesses’ testimony .”

Maple v. Gustafson
, 15 1 I ll. 2d 445, 452 (1992). A judgme nt n.o.v. or direc ted verdic t is
proper ly enter ed in those limit ed case s wher e “all of the evidenc e, when viewed in its aspec t most fa vorable to the opponent, so overwhelmingly favor s movant that no contra ry verdic t b ased on that evidenc e could ever stand.” (I nterna l quotation marks omi tted.) Jablonski v. Ford Motor Co.
, 2011 I L 110096, ¶ 88; Maple
, 151 I ll. 2d at 453. In ruling on a motion for judgme nt n.o.v. or direc ted verdic t, “a court does not weig h the evidenc e, nor is it conce rned with the cre dibilit y of the witnesses; rathe r it may only consider the evidenc e, and any infere nces the ref

rom, in the light most favor able to the pa rty resisting the motion.” Maple
, 151 I ll. 2d at 453 & n.1. I f there is any evidenc e, tog ether

with rea sonable infe renc es to be drawn there from, demonstrating a substantial fac tual dispute, or wher e the assessment of

cre dibilit y of t he witnesses or t he determination reg arding conflictingevidenc e is decisive
to the outcome, the court should not enter a judgme nt as a matter of law. Id. at 454. We revie w de novo the decision deny ing BA SF’s motion for judgme nt n.o.v. and the decision to direc t a v er d i ct for Solis

. Id. ; Lazenby v. Mark’ s Construction, Inc.
, 236 I ll. 2d 83, 100 (2010).

¶ 27 Statute of L imitations ¶ 28 BA SF contends that Solis ’s claims are barr ed by the two-y ear persona l injury statute of limit ations. See 735 I L CS 5/13-202 (W est 2008). In persona l injury actions, the statute of limit ations g ener ally beg ins to run on the date of the injury

. Golla v. Gene ral Motors Corp.
, 167 I ll. 2d 353, 360 (1995). I n case s of exposure to harmful substances, howeve r, plaintiffs
g ener ally do not “discove r that they suffe red any injury until long afte r the tortious conduct

occur red,” and cour t s apply the discovery rule “to preve nt the unfairne ss of char g ing the plaintiff with k n o wl edge of fac ts which wer e ‘unknown and inhere ntly unknowable.’ ” (Emphasis in orig inal.) Id. at 367 (quoting Urie v. Thompson
, 337 U.S. 163, 169 (1949)) ; see Prosser and Kee ton on Torts § 30, at 165-67 (W. Pag e Kee ton et al. eds., 5th ed. 1984); see also Clay v. Kuhl
, 189 I ll. 2d 603, 6 1 1 (2 0 0 0 ). The discovery rule “postpone[s] the

commence ment of the rele vant statute of l i m i t ati ons until the injured plaintiff knows or

rea sonably

should have known that he has been injured and that his injury was wr ong fully

cause d.” Goll a , 167 I ll. 2d at 361. When a plaintiff asser ts the discovery rule to delay

commence ment of the statute of limit ations, he has the burden of proving the date of discovery

. Gr edel l v. W

yeth Labor atories, Inc.
, 346 I ll. App. 3d 51, 58 (2004). Accor ding
to BA SF, Solis ’s claims wer e untimely beca use he knew or rea sonably should have known of his “lung condit i o n and its possible wrong ful cause ” more than two y ear s befor e September 17, 2 0 0 7
, t he date Solis filed his complaint ag ainst BA SF. The trial court 3 disag ree d and dire cted a

verdic t on the statute of limitations question i n favor of Solis.

BASF con te nds
, and Sol is doe s not dis put e, tha t the fi li ng dat e of the amended complai nt, 3 add ing BASF as a par ty, is the ope ra ti ve d at e in thi s cas e bec aus e BASF did not re cei ve noti ce of the sui t unti l the amended complai nt was ser ved. See 735 I LCS 5/2- 616( d) (W est 2008 ) (amended complai nt re la te s bac k to dat e of the ori ginal complai nt onl y wher e add ed par ty had not ic e of the ori ginal complai nt)

.

-7-¶ 29 I n this case , the trial court’s direc ted verdic t for Solis can stand if all the evidenc e, when

viewed in its aspec t most favor able to BA SF, so overwh el m i n g ly favor s Solis that no contra ry verdic t ba sed on that evidenc e could ever stand. Lazenby , 236 I ll. 2d at 100. “The issue of when a party knew or should have known both of the inj u ry an d that it was wrong fully cause d is g ener ally one of fac t. [C itations.] Thus, in most case s, the time at which

a party knows or rea sonably should have known both of her injury and that it was wrong fully

cause d will be a disputed question for the trier of fac t.” Y oung v. McKiegue
, 303 I ll. App. 3d 380, 387 (1999). ¶ 30 Solis contends that we can quickly dispense with th e s t at u t e o f l i mitations question beca use the evidenc e was u n d i s p u ted that Solis was not diag nosed with bronchiolitis obliterans befor e 2006. I t was this argument that convince d the trial court to direc t a verdic t for Solis

. The court noted that beca use “the first time [S olis] beca me awa re of [hi s diagnosis] was with Dr. Rose’ s note in 2006,” the statute of limitations questi on was a “nonissue.” I

n

a posttrial order
, the court reiter ated that it enter ed a verdic t in favor of Solis beca use he “wa s not officially

diag nosed with [bronchioliti s obliterans] until 2006, and he filed this lawsuit in 2007.” ¶ 31 We disa g ree that an off icial diag nosis was requir ed to trig g er the running of the statute of limit ations. Our supreme court has explained that a plaintiff need not “know the full extent of [her] injuries befor e the statute of limit at i o n s is trig g ere d.” Golla
, 167 I ll. 2d at 364. “[T] he limit ations period commence s when the plaintiff i s i n jured, rathe r than when the plaintiff rea liz es the conseque nces of the injury or t h e fu l l ex tent of her injuries.” Id. The prior cases of this court and our supreme court make clea r t hat an offici al d i agn o s i s is not require d to trig g er the statute of limit ations. In Nolan v. Johns-M anville Asbestos
, 85 I ll. 2d 161 (1981), for example, the plaintiff soug ht treatment for brea thing difficulties in 1957 and

was told at that t i m e t h at h e h ad “ ‘lung problems.’ ” Nolan
, 85 I ll. 2d at 163. There was

so m e q u es t ion whether plaintiff understood that his lung problems wer e occupationally

cause d based, in part, on information he might have rec eived from his doctor. Id. at 165-66. I n 1973, less than two y ear s befor e he eventua lly filed suit, the plaintiff was diag nosed with asbestosis and was told that his condition was caused by exposure to asbestos m ater ial s at work. Id. at 166. ¶ 32 I n applying the discovery rule, the court rec og nized that the statute of limit ations can be trig g ere d befor e an officia l dia g nosis. The court noted that the plaintiff “could not possibly have been a

war e of his injury

until, at the ear liest, 1957, when the first symptoms began to
appear .” (Emphasis added.) Id. at 169. Whil e the appellate court had held that the cause of action acc rued when the plaintiff “ ‘knew or, in the exercise of rea sonable diligenc e, should have discove red that he had contracted the disease asbestosis due to defe nd an ts’ acts or

o m i s s i o n s , ’ ” the supreme court stated that the “pre fer red rule is that the cause of actio n

acc rues when the plaintiff knows or rea sonably should know of an injury and also knows or

rea sonab l y s h o u l d know that the injury was cause d by the wrong ful acts of another .” (Emphasis added.) Id

. T h e co urt acknow ledg ed 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 cause d by exposure to asbestos materia ls at work,” but explained that “[t] he evidenc e is conflicting as to whether

or when [t he plaintif

f] wo u l d have had sufficie nt information to reach such a conclusion

-8-earlier .” (Empha sis added.) Id. at 171-72.

¶ 33 Nolan sug g ests that a definitive diag nosis coupled with an explanation of the cause of the illness will g ener ally mark the endpoint of when the statute of limit ations beg ins to run. But it does not follow that the statute of l i m itations cannot beg in to run befor e an aff irmative diag nosis. As this court has rec og nized, “ Nolan and later prec edent firmly establish that an aff irmative diag nosis of an injury is not the bellwether that g ives rise to a plaintiff’s claim.” Healy v. Ow ens-I

llinois

, Inc.
, 359 I ll. App. 3d 186, 194 (2005). For ex ample, i n W i l s o n v. Dev onshire Realty of

Danville
, 307 I ll. App. 3d 801 (1999), the plaintiff argued that “she was immediately awa

re of sy mptoms of an ill n ess but not the latent pulmonary disease, which

was not diag nosed until April 1997.” W ilson
, 307 I ll. App. 3d at 805-06. The court reje cted this claim, noting that plaintiff admitted that she had occupational ast hma and multipl e chemica l sensitivit y

in 1995. Id. at 806. The c ourt rea soned that “the prese nt case does not i n v o lve a plaintiff who failed to discover any injury but, rathe r, a plaintiff who failed t o discover the full extent of her injuries befor e th e ex p i ra t i on of the statute of limit ations.” (Emphasis in o ri g inal.) Id. ; see also Hutson v. Hartke
, 292 I ll. App. 3d 411, 415 (1997) (conc luding that the plaintiff knew or should have known of her injuries in a case involving
exposure to ammonia fumes and ex plaining that it was “sufficient that she ex perie nced an identifiable episode which irritated her nose and throat and started a pattern of coug hing that subsequently worsene d and continued for wee ks,” even if she did not know the “full extent of the injury

that the ammonia fume s would cause ”). ¶ 34 As the fore g oing discussion illust rate s, to say that the statute of limit ations question does
not turn on an officia l diag nos i s d o es n o t end our inquiry

. We must decide if the fac ts establish one way or the other that Solis knew or rea sonably should have known that he was injured and that the injury was wrong fully cause d–or if there is a fac tual question that should have g one to the jury

. I n this c ase, it is undisputed that plaintiff had some knowledg e of an injury (a sever e condition in his lungs) at least by 2004. Pulmonary function tests in 1999 and 2004 showed that Solis had decr ease d l ung function. Be tween 2000 and 2004, Solis ’s
sy mptoms wer e severe: he had several emerg en cy ro o m v isits, coug hing fits, and a period of hospitaliz ation. After 2000, Solis rec og nized his sy mptoms as being “outside the ordinary
, outside of asthma.” ¶ 35 The central question here
, as i n m an y case s related t o exposure to harmful substanc es, is whether Solis knew or should have known that those sy mptoms had a wrong ful cause

. On
appea l, Solis contends t h at h e s i mply thought he had asthma, even if sever e, and never

connec ted his condition to any wrong ful cause

. The term “wr ong ful cause ” ref ers to the point in time when “the injured party become s possessed of sufficie nt information conce rning his injury and it s cause to put a reason ab le person on inquiry to deter mine whether actionable conduct is involved.” Knox College v. Celotex Co r p

. , 8 8 I ll. 2d 407, 416 (1981). This standard “does not require knowledg e on the part of plaintiff that the defe ndant’s conduct fits the technica l leg al definition of neg lige nce or that all the leg al elements of a particula r cause of action are otherwise satisfied.” Mitsias v. I-Flow Corp.
, 2011 I L App (1st) 101126, ¶ 24. I nstead, it is the rea sonable knowl ed ge o f i njury and its wrong ful cause that imposes a “burde n *** to investigate whether she has a viable cause of action.” Id. ¶ 23; acc ord Martin

v. A& M Insulation Co.
, 207 I ll. App. 3d 706, 710 (1990). Additionally
, this co u rt h as

-9-rec og nized “that unless a cle ar de finitive diag nosis is given by a doctor , in many

instances it is a compilation or a series of statem en t s , ev en t s or circ umstances and thoughts that chang es mere suspicion to rea sonably knowing that a *** condition was wrong fully cause d.” LaManna v. G.D. Se arle &Co. , 204 I ll. App. 3d 211, 219 (1990). ¶ 36 The evidenc e prese nted at trial reve als sever al indicators that befor e September 17, 2005, Solis had sufficie nt information about his injury and its cause to spark inquiry as to whether his injury might be leg ally actionable

. In 2004, Fl a v o r c h e m ma

n a g e me nt invited doctors from NJ H to do an asse ssment of the F lavorc hem fa cility and wor kers’ health at the plant. Solis testified that his understanding of the visit was that NJ H was “doing some sampling” so that Flavor chem could g et better ventilation and employ ees could g et the corr ect respirators. As part of the visit, Solis re ceive d a pulmonary function test from NJ H that showed decr ease d lung function, and Dr. Cecile Rose of NJ H rec ommended that Solis be taken out of the dry mix are a. Stil l, Solis tes t i fied that at this time, he did not have any idea than something at work c ould be ca

using his lungproblems. ¶ 37 I n Dec ember 2004, Solis went to m ee t wi t h h i s p u lmonologist, Dr. Sherman. Solis confirme d that he had “some discussion with [Dr. Sherman] ab o u t the fac t that [he was] having some problems while [he] was at work with breathing.” Whil e Solis initially testified that he could not rec all if Dr. Sherman asked any questions about “what kinds of exposures to various chemica ls or fumes” Solis had at work, he then equivocated as to what he had told Dr. Sherma

n: “Q

. Did y ou tell Dr. Sherman that y ou wer e fee ling worse at work, and that y o u thought it related to the kinds of things y ou wer e inhaling while y ou wer e working there ?
A. I might, but I don’t think so. I mean, by walking
, I fee l sic k, you know, it trig g er asthma [ sic ]. Imean, so I

probably did. I ’m not sure.” Sometime in late 2004 or mid-2005, Solis filled out a medical que stionnaire in conne ction with the NJ H visit. (A follow-up questionnaire has the marking “pre vious ” followed by October 28, 2004 and May 2005, and Solis testified that the first questionnaire he filled out

was probably from October 2004 or May 2005.) As part of the questionnaire, Solis was asked if there wer e particula

r tasks or proce sses in his job that he felt wer e likely to cause breathing problems, and he chec ked “y es.” He al so responde d “y es” to the question “Ar e y our sy mptoms worse at work? ” S olis ad m i t t ed that at t he ti me he filled out this questionnaire, he felt that working around cer tain chemica ls, including diac et y l
, “caused [hi s] breathing problems.” ¶ 38 W h en v i ew ed i n a l i gh t m o s t fa v o ra b l e t o BA SF, the evidenc e does not so 4

W h il e BASF ci te s to oth er re cor ds in it s bri ef in sup por t of it s st at ute of li m i t a t i o n s 4

ar gum ent , the se doc um ent s wer e si m ply at ta che d to a pre vious summ ar y j udgm ent m oti on, and the re is no ind ic at ion tha t the se doc um ent s wer e par t of the eviden ti ar y re cor d. For exa m ple
, BASF ci te s to a le tt er fr om Dr. Rose
, dat ed J une 2, 2005
, exp la ini ng tha t NJ H per for m ed ano t h er m edi cal

scr een ing in Ma y 2005 as par t of a “t est ing pro gram * * * t o scr een peo ple for work- re la te d lun g dis eas e.” T hat le tt er app ar ent ly was not in eviden ce. BASF al so ci te s to a Novem ber 5, 2004 le tt er fr om Dr. Sher m an, whic h di scu sse s “ si gnifi can t occ upa ti ona l his tor y” a nd inc lud es a han dwri tt en

-10-overwhelmingly favor Solis th at n o jury could have conclude d that Solis did not know or

should not have known of hi s lung condition’s wrong ful cause

. More than one con cl u sion can be drawn from the e vidence prese nted to the jury . We a cknowledg e that Solis testified that the first time he connected his lung condition to chemi ca l s at work was in J une 2006, when Dr. Rose told him that she was worrie d that he may have bronchiolitis obliterans from fl av o ring chemica ls. But Solis ’s testimony must be place d in context of the evidenc e prese nted at trial. Be fore 2005, Solis ’s condition was g rowing signific antly worse, a hospital
g roup came to d o a h ea lth assessment at Flavor chem, the hospital g roup tested the lung function of Solis and other employ ees, and Solis was told he could not work in the dry mix

are a. At trial, Solis confirme d that in late 2004 or m i d -2 0 05, he felt that cer tain chemica ls

cause d his breathing problems, and his health questionnaire listed diace ty l as a chemica l that

was “l i k ely to cause brea thing problems.” Solis ’s testimony –which itself is sometimes
contra dictory

–either cre ates a fac tual dispute or raises questions about h i s cre dibilit y

. “[W ]here the resolution of fac tual disputes or the assessment of witness cre dibilit y is critica l
to the outcome of an action, a circ uit court m ay n o t direc t a verdic t or g rant a judgme nt notwithstanding the verdic t.” Poulos v. Lutheran Socia l S ervices of Illinois, Inc.
, 312 I ll. App. 3d 731, 739 (2000) ( citing Maple , 151 I ll. 2d at 454). ¶ 39 We ac k n o wl ed ge that “re asonable knowledg e of wrong ful cause require s more than a

mere suspicion that wrong doing might have occur red, if that suspicion is not y et supported by fac ts known to plaintiff.” Mitsias
, 2011 I L App (1st) 101126, ¶ 24. As th i s co u rt has explained, howeve r, the question is not simply what Solis knew, b u t what he should have known: “[W ]hether a party possessed the requisite constructive knowledg e contemplates an objective analy sis of t he fa ctual cir cumstance s involved in the case. Thus, the relevant deter mination rests on what a rea sonable person s hould have known under the circ umstances, and not on what the particula r party specific ally suspected. Th e trier of fac t must examine the factual circumstance s upon which the suspicions are p redic ated and determine if they

would lead a

rea sonable pe rson to believe that wrong ful conduct was involved.” Y

oung v. Mc

Kiegue , 303 I ll. App. 3d 380, 390 (1999).
I t is for the jury to deter

mine whether Solis rea sonably conclude d that he simply had sever e asthm a from some non-occ upational cause , or whether
, based on the information he possessed, Solis should have inquired as to some possible fault on the part of the defe ndant. W h er e BA S F prese nted some evidenc e that Solis knew or should have known of some possible fault on the part of BA SF, it was err or to direc t a verdic t in fa v o r o f S o l i s o n the

not e, “Di ace tyl exp osu re @ work.” Alt hough the le tt er is inc lud ed wit hin Dr. S h e r man’ s re cor ds admitt ed int o eviden ce at a pos tverd ic t con fe re nce , BASF ci te s no te st imony re gardi ng the Novem ber 5, 2004 le tt er

. I n re viewin g the tr ia l cou rt ’s dir ect ed verdi ct for Sol is
, ent er ed j ust bef ore cl osi ng a rgum ent s, we con si der onl y t he eviden ce add uce d at tr ia l. See Peop le ex rel

. Rey nol ds v. Ald ri dge
, 107 I ll

. App. 3d 679, 684 (19 82) (“ We fi nd no m er it in the Sta te ’s ar gum ent tha t the tr ie r of fa ct can be re verse d by the tr ia l j udge on the bas is of fa ct s whic h wer e avail abl e at the ti m e of tr ia l but never pro ff

er ed. T he tr ia l cou rt is to bas e a j udgme n t n

. o

. v

. s o le ly on the bas is of eviden ce int rod uce d at tr ia l.” ).

-11-statute of limit ations question. See Seke rez v. Rush University Medic al Center
, 2011 I L App

(1st) 090889, ¶ 59 (finding that trial court err ed by direc ting a verdic t on medical neg lige nce claim wher e evidenc e was in c onflict). When draw ing all rea sonable infere nces in B ASF’s favor
, the evidenc e did not “so overwhelmingly favor [] [S olis] that no contra ry verdic t based

on that evidenc e could ever stand.” (Interna l quotation marks omitted.) Lazenby
, 236 I ll. 2d
at 100. Acc ording ly
, we reve rse and rema nd for a new trial so that the jury can consider the statute of limitations question.

¶ 40 Causation: Proof of Exposure ¶ 41 BA SF next contends that Solis ’s strict liability and neg lige nce claims must fail bec ause Solis did not prove that BA S F was a “cause in fac t” of his injuries. BA SF arg ues t hat i t is entitled to judgme nt n.o.v. on all claims. Alternatively
, BA SF argues that the verdi ct was ag ainst the manifest weight of the evidenc e, and we should there fore order a new trial. “ ‘A verdic t is ag ainst the manifest weig ht of the evidenc e wher e the op p o s i t e conclusion is clea rly evident or wher e the finding s of t h e j u ry are unrea sonable, arbitra ry and not based
upon any of the e vidence .’ [Ci tations.] ” Maple , 151 I ll. 2d at 454. ¶ 42 At issue here is whether Solis has prese nted sufficie nt evidenc e that BA SF’s diace ty l was

a “ca use in fac t” of his injuries. Cause in fac t can only be established when there is a

rea sonable cer

tainty that a defe n d an t ’s acts cause d the plaintiff’s injury

. Lee v. Chicago Transit Authori t

y , 1 5 2 I l l

. 2d 432, 455 (1992). “It is axiom atic that liability cannot be premised mere ly upon surmise or conjec ture as to the cause of the injury .” Id. Causation in fac t “ is usually a question for the trier of fac t.” Thacker v. UNR Industries, Inc.
, 151 I ll. 2d 343, 355 (1992). ¶ 43 There are g ener ally two tests used by courts to deter mine “ca use in fac t”: the traditional “but for” test and the “ substantial fac tor” test. Id. at 354. On appe al, the par ties focus their
arguments on the “substantial fac tor” test, by which the “def endant’ s conduct is said to be

a cause of an event if it was a materia l element and a substantial fac tor in bring ing the event about.” Id. at 354-55. I n Thacker
, our supreme court adopted the “fr equenc y , regularity and proxi mity ” test as a means by which an asbestos plaintiff can establish that a specific defe ndant’s product was a substantial fac tor in being a cau s e i n fac t of a plaintiff’s inj ury

. Under that test, the plaintiff m u s t p ro v e that he was “exposed to the defe ndant’s asbestos th ro u gh p ro o f that (1) he regularly worke d in an are a wher e the defe ndant’s asbestos was fre quently used and (2) the injured worke r did, in fac t, work sufficie ntly close to this are a so

as to come into contac t with the defe ndant’s product.” Id. at 359. Our supreme court rec ently

rea ffirme d the use of this test in asbestos case s, b u t cl ar i fi ed that “the ultimate burden of proof on the eleme nt of

causation rema ins exclusively on the plaintiff,” and “ Thacker cre ates

no presumption on the i ssue of causation.” (Emphasis i n orig inal

. ) N olan v. W eil-Mc Lain
, 233 I ll. 2d 416, 435 (2009). ¶ 44 To beg in, we must addre ss an issue that the par ties brush aside rathe r quickly : whether Thacker ’s “fr equenc y , regularity and p ro x imity ” test applies in a case with alleg ations of
occupational exposure to diace ty l, or whether that test is limit ed to asbestos exposure case s. For his part, Solis simply asser ts, without discussion, that Thacker has no application beyond

-12-asbestos case s. In reply
, BA SF contends that no I llinois authority limit s Thacker to asbestos

case s. The court in Thacker noted the “unique problems posed by asbestos injury ” and identified several factors that led i t to appl y t h e “f requency , regularity and prox imity ” test in a n asbestos case , many related to “ how a plaintiff in an asbestos case can fairly meet the burden of production with reg ard to c ausation.” Thacker , 151 I ll. 2d at 356-57 (noting, for example, that “a plaintiff injured by asbestos fi b er s o ften does not know exactly when or wher e he was injured and there fore is unab l e t o d es cribe the details of how such injury

occur red” ). ¶ 45 The parties ci t e n o au thority to support their contentions reg arding the applicability of the Thacker test to exposure case s like this o n e, n o r d o t h ey discuss why it would be
appropr iate to apply that test in this case

. Where the parties have failed to adequately addre ss the issue, we w ill assume, but do not decide
, that the t est announce d in Thacker applies to this case of occupa

tional exposure to diace ty l. Compare Donaldson v. Central Illinois Public Servic e Co.
, 199 I ll. 2d 63, 92 (2002) (dec lining to adopt the fre quency , re gu l arity and
prox imity rule and “depa rt from traditional conce pts of causation” in a case involving environmenta l exposure, as opposed to asbestos exposure, beca use “[ e] n vironmental
exposure case s *** do not aff ord litigants the opportunity to specify with such cer tainty the
exact level and dose of exposure” or “whe n or wher e ex p o s u re o cc u rre d”), abrogated on other grounds by In re Commitment of Simons
, 213 I ll

. 2 d 5 2 3 (2 0 0 4), with Jame s v. Bessem er Processing Co.
, 714 A.2d 898, 911 (N.J. 1998) (discussing use of fre quen cy , regularity
, and proxi mity test in nonasbestos case s and ultimately “hold[ing] that a plaintiff in an occupa

tional-exposure, tox ic-tort case m ay demonstrate medical causation by establishing: (1) fac tual proof of the plaintiff’s fre quent, regular and proxi mate exposure to

a defe ndant’s products; and (2) m ed i ca l and/or scientific proof of a nexus betwee n the
exposure and the plaintiff’s condition”). Her e it is enoug h to say that in Nolan
, our supreme court explained that the fre q u en cy , regula rity and proxi mity test, ultimately g rounded in fundame ntal principles of tort law causation, does not alter the plaintiff’s burden to prove

causation: “Althoug h we noted [i n Thacker ] that asbestos plainti ff s fa ce unique challeng es in showing causa

tion, we did not car

ve out an ex ception for asbestos cases which relieve
t h o s e p l aint iffs from meeting the same burden as all other tort plaintiffs. Rather, we adopted Lohrmann ’s fre quency , regularity and proxi mity test–tailored to application in asbestos actions–as a means by which a plaintiff choosing to prove cause in fac t throug h use of the substantial f

actor test may meet that burde n.” Nolan , 233 I ll. 2d at 434. ¶ 46 As s u m i n g t h at t he fre quency , regularity and proxi mity test applies here
, we turn to BA SF’s ar g ument that beca use it supplied such a small amount of diac etyl to Flavorc hem, Solis could not prove that BA SF’s diace ty l was a substantial fac tor in causing Solis ’s injury

. BA SF arg

ues that Solis ’s ex p o s u re to diace ty l supplied by BA SF was “re latively insignifica

nt” beca use BA SF supplied as littl e as 3.5% of the diace ty l used in Flavor chem’ s powder room duringthe time Solis worke d there . BA SF points out that S olis was exposed
to diace ty l from other suppliers, as well as other potentially harmful chemicals, during his employ ment at Flavorche m, Olmarc, a nd FON A. ¶ 47 Our supreme court encounte red a s i m i l ar argument in Thacker

. There
, the def endant

-13-argued that it was entitled to a judgme nt n.o.v. on causation beca use the defe ndant supplied

o n l y a small amount of asbestos to the plant wher e dece dent worke d compared t o t h e quantity of asbestos supplied to the plant from other source s. Thacker
, 151 I ll. 2d at 355. The dece dent had worke d at the plant for eig ht y ear s, and defe ndant had supplied asbestos for three of those y ear s. Id. at 350. The plaintiff’s expert testified that the dece dent’s disease may have be en ca

used by any one, or a ny g roup, of the asbestos fibers inhaled by the decedent. Id. at 351. After adopting the “fr equenc y , regularity and proxi mity ” test for causation in fac t, the cour t turned to the evide nce be fore it as to the fre quency of use: “[T] he evidenc e showed that [t he dece ndent] worke d in the UNARCO plant for more than eight y ear s and that at l east 75 tons of d ef en d an t’s raw asbestos was proce ssed at the plant during this time. The defe ndant notes in its bri ef t h at even under the most g ener ous calc ulation, a maxi mum of just 3% of the total dust in the plant could have been
g ener ated from Manville asbestos and th at the actua l dust at the dece dent’s work site
was, in all likelihood, signific antly less. In light of plaint i ff’s m ed i cal evidenc e which indicated that even slight exposure would adver sely aff ect the dece dent’s health, howeve r, and in light of the total volume of asbestos at the UNARCO fac ility
, we cannot say that 3% is insignifica

nt as a matter

of law.” (Emphasis in orig inal.) Id. at 360. The court went on to explain that while the dece dent testified that he could not reme mber

ever working with defe ndant’s asbestos, the pl aintiff had prese nted s ufficien t ev i d ence on “proximi ty ” based on the ability of asbestos fibers to drift throug h the air. Id. at 364-65. The

co u rt concluded that the trial court proper ly denied defe ndant’s judgme nt n.o.v. , and t h e verdic t was not ag ainst the manifest we ight of the evidenc e. Id. at 366. ¶ 48 As in Thacker
, we cannot conclude t h at S o l i s ’s ex p o s u re to BA SF diace ty l was insignifica

nt as a matter of law. As to the fre quency of use of BA S F d i ac et yl, the batch

rec ords at Flavor chem show that BA SF supplied at least 3.5% o f t h e d i ac et yl used in the Flavor chem powder room during Solis ’s te n u r e

. T he 3.5% fig ure takes into acc ount no BA SF diace ty l supplied befor e 2003, even though BA SF sold diace ty l to Flavor chem beg inning in 2001. Whil e BA SF challeng es the validity of Solis ’s testimony
, Solis estimated that 50% of the diace tyl used in the plant was B ASF diac etyl betwee n 2000 and 2004. He testified that he arr ived at this number beca use “most” of the drums he transfe rre d wer e from BA SF, and for “ a whole bunc h of for mulas *** [he] was usingthe diace ty l.” ¶ 49 Apar

t from Solis ’s testimony
, Dr

. E gilman testified that if he assumed that the B ASF diace ty l in the plant was 2.5% to 3% of the diace tyl supplied to Flavor chem during the time Solis worke d there
, that amount would have been enoug h to cause the disease by itself, even “if it was his only exposure.” In his opinion, this amount wa s “n o t t ri vial” and “by itself [ wa s ] enoug h to cause the disease” reg ardle ss of other exposures. Building on t h i s conclusion, Dr. Eg ilman opine d that exposure to BASF diace ty l w as a substantial f actor in causing S o l i s ’s disease. Under the principles announce d in Thacker –left unaltere d by Nolan –we conclude that plaintiff has prese nted competent evidenc e that BA SF diace ty l was “fr equently

used” in the pow der mix area. ¶ 50 Be y ond the fre quency require ment, there is no question that Solis regularly worke d in the powder mix are a in proxim ity

to BASF diace ty l. Soli s testified that from 2000 to 2004, he

-14-used diace tyl on a d ai l y basis in the powder mix are a, and he reme mbere d using BA SF

diac et y l afte r 2000. NJ H found that the highe st levels of diace ty l in the Flavor chem plant

wer e in the dry mix or powder are a, which is wher e Solis spent the majo ri t y o f h i s time. Starting in 2003, when Flavor chem beg an to keep rec ords of which diace ty l was u s ed in which batch, Solis ’s initials appea r on Flavor chem rec ords next to particula r batche s wi th BA SF-supplied diace ty l, meaning that Solis was either the compounder of those batche s or he complete d the computer work a ssociated with those batches. The evidenc e pre sented at trial allowed for “a rea sonable infere nce of substantial causation in fac t.” Nolan
, 233 I ll. 2d at 434. ¶ 51 BA SF points out that Solis had a respiratory injury befor e his f irst e x posure to B ASF’s d i ace ty l, and Solis worke d with diace tyl befor e starting at Flavor chem. As Dr. P ar m et explained, Solis ’s g radua l injury could be des cr i bed as the result of “a continuing and
ong oing exposure over the course of his employ ment.” But ag ain, Dr. Eg ilman testified that Solis ’s exposure to BA SF diace ty l–without more–wa s enoug h to cause the disease. And Dr. Parmet, whose opinion linked Solis ’s condition more g ener ally to flavoring chemica ls rathe r than diace ty l alone, testified that he believed that “[d] iace ty l is the predominant chemica l,”

even though it was “not the only one.” Most importantly
, Solis testified (and his experts and
treating phy sicians confirme d) that as the diace ty l usag e i n creased at Flavor chem afte r 2000–during the time when BA SF was supply ing diace ty l to Flavor chem–Solis’s condition deter iorated rapidly

. A lung function compar ison from 1999 to 2010 showed that Solis lost about 600 to 700 cubic centimeter s of lung capa city
, which was 2 to 3 times more loss than normal. Dr. Eg ilman note d that the 10% loss of lung f unction betwee n 2000 and 2009 wa s signific ant beca

use Solis was at a “risk of death” if he contra cted a cold, coug h, small virus,

or an infec tion. Dr. Parmet testified that Solis ’s sy mptoms wer e “mana g eable ” prior to 2000, but beca me worse afte r 2000: Solis had more emer g ency room visit s , m o re coughing fits,
coug hing episodes that led to loss of consciousness, a decr ease in pulmonar y function, and

a period of hospitaliz ation. I t is not as if the “dama g e was done” by the time Solis beg an to work with BA SF diace t y l ; t h ere was evidenc e that additional exposure to diace ty l cause d further deter ioration of the lung s. ¶ 52 We note t h at BA S F wa s n ot preve nted from challeng ing Solis ’s experts’ opinions or inquiring a

bout Soli s’s other e x posures. F ollowing Nolan , the trial cour t a llowed BA SF to “explore other e x posures” at FO NA and O lmarc so that the j ury could “determine what, if
any , of t hose ex posures were the sole proxi mate cause” or t hat “those exposure s wer e jus t

an additional cause for [S olis’s] illness.” Whil e we acknow ledg e that the evidenc e sug g ested that there wer e other contributing fac tors to Solis ’s injury
, BA SF is “ ‘liable for [i ts]
neg lige nt conduct whether it contributed wholly or partly to the plaintiff’s injury as long as it was one of the prox imate causes of the i njury .’ ” (Emphasis om itted.) Nolan
, 233 I ll. 2d
at 440 (quoting Leonardi v. L o yo l a Uni versity of Chicago
, 168 I ll. 2d 83, 93 (1995))

. We conclude that Solis prese nted enoug h evidenc e of fre quent, regular, and proxi mate exposure to BA SF diace ty l to prese nt the question of causation to the jury

. Moreove r, beca use the finding s of the jury wer e supported by the evidenc e and not unrea sonable or arbitra ry ( Maple
, 151 I ll. 2d at 452), we c onclude that the jur y ’s ver dict was not ag ainst the manifest weig ht of the e vidence

.

-15-¶ 53 W e m u s t addre ss one final argument from BA SF as to “insuffic ient exposure.” B AS F

argues that the trial court err ed in a llowing Solis ’s experts to testify as to their conc lusions
reg arding the cause of Solis ’s injury

. BA SF acknow ledg es that an expert may offe r opinion testimony reg arding the ultimate issue in a case

. Richardson v. Chapman
, 175 I ll. 2d 98, 107 (199 7 ). T h i s t estimony does not usurp the province of the jury beca use the jury is not require d to acc ept the expert’s opinion. Id. ; see also Pyskaty v. Oyama
, 266 I ll. App. 3d 801, 820 (1994) (finding no err or in allowing expert to testify reg arding causation). BA SF claims, howeve r, that Dr. Eg ilman’s testimony was contrary to the standard f or ca usation set forth in Thacker beca

use he asser

ted that any and ev er

y ex posure, no matter how small, was a substantial fac tor in bring ing about his injury

. W e t ak e a differ ent view of Dr. Eg ilman’s testimony

. As noted abov e, Dr

. Eg ilman testified that if he assumed that BA SF supplied 2.5% to 3% of the diace ty l to Flavor chem at the time Solis worke d there
, that amount, alone,

was enoug h to cause his disease. On cross-e x amination, Dr. Eg ilman made clea r that it was not his conclusion t hat every exposure, no matter how small, was a “su b s t an t i al fac tor” in causing Solis ’s injury

. He explained that there was a “ de minimus ” exposure level, which he marke d at “less than one part of a b i l l ion total exposure,” though “exposure that’s 2 to 1
perc ent, 5 perc ent to 10 perc ent [would be] a signific ant contri b u t i ng fac tor if the total exposure is 100.” ¶ 54 Wit hout mentioning any of the above statements, BA SF points to a single statement from Dr. Eg ilman–among his hundreds of p ages of testimony –to support the argument that Dr. Eg ilman profe ssed an “any exposure is a substantial fac tor” theory

. On redire ct examination, Dr. Eg ilman testified reg arding his opinion that BA SF failed to rele ase the L C50 study

. His counsel then a sked about his views of the signific ance of not rele asing that study : “Q. Your view reg arding the publicat i o n of this study has not chang ed since y ou beca me awa re that they

did not relea se this to the public? A. That’s c orre ct. Q. And do y ou believe it’s a substantial contributing fac tor to Mr. Solis ’s disease
reg ardle ss of how much B ASF diac etyl he was e x posed to?
A. Yes.”
We view this testimony as expressing Dr. Eg ilman’s opinion that BA SF’s failure to rele ase the L C50 study to F lavorc hem contributed to Solis’s injury . We note that labeling BA SF’s alleg ed failure to war

n as a “c o n t ri buting fac tor,” reg ardle ss of how much BA SF diace ty l Solis was exposed to, is particu l ar l y confusing

. That testimony is also contra ry to the require ment that Solis must prove t hat he was ex posed t o more than a de minimus amount of BA SF diace ty l in order to preva il on all of his neg lige nce and strict liability claims. This particula r testimony from Dr. Eg ilman should not be repe ated on rema nd

. Ba s ed on our

re v iew of Dr. Eg ilman’s entire testimony
, howeve r, we conclude that his opinion o n

causation was not contrar y to the require ment set forth in Thacker or Nolan

.

¶ 55 Causation: Failure -to-Warn Claims ¶ 56 BA SF next argues that it is entitled to a judgme nt n.o.v. beca use S o l i s fa i l ed to prove proxi mate causation on his failure -to-wa rn claims sounding in neg lige nce and strict liability

.

-16-To prove these claims, Solis had to show (1) that BA SF failed to disc lose or instruct about

a dang er of diace tyl, and (2) that this failure to disclose proxi mately cause d his injuries. See Salerno v. Innovative Surveillance Technology, Inc.
, 402 I ll. App. 3d 490, 498 (2010) (strict liability failure to war

n); Kane v. R

. D. W

erner Co.
, 275 I ll. App. 3d 1035, 1037 (1995) (neg lige nt failure to war

n). BASF contends that Solis ’s claims fail on the s econd elemen t , b ec au s e Solis admitted that he never rea d any BA SF war nings for diace ty l while at Flavor chem. ¶ 57 I n fa i l u re -t o-wa rn case s, “it has been held that there must be suffic i en t ev i d en ce supporting a rea sonable in f ere nce, rathe r than a g uess, that the prese nce of adequa te war nings would have preve nted the plaintiff’s injuries.” Broussard v. Houdaille Industries, Inc.
, 183 I ll. App. 3d 739, 744 (1989); see also Brobbey v. Enterprise Leasing Co. of Chicago
, 404 I ll. App. 3d 420, 433 (2010) (question of proxi mate cause is ordinarily one for the jury ). In Kane v. R.D. W erner Co.
, 275 I ll. App. 3d 1035 (1995), this court held that a plainti ff who does
not rea d an alleg edly inadequate war ning cannot maintain a product liability action premised

on a failure -t o -w ar n t h eory , unless the nature of the alleg ed inadequa cy is such that it
preve nts him from rea ding it. Kane
, 275 I ll. App. 3d at 1037. The Kane plaintiff, injured in

a fall from a ladder
, allege d that the defe ndant manufa cture r had failed to war n of the ladder ’s various “dang erous propensities” on the war ning label attache d to the ladder

. Id. at 1035-36. Be cause the plaintiff admitted that he had never rea d the war ning labels, the appellate court ag ree d with the trial court that the plaintiff had failed to sho w t h at t he

war ning labels on the ladder wer e the proxi mate cause of his in j u ry

. Id. Dra

wing from a decision of the Alabama Supreme Court, the appellate co u rt rea soned that the plaintiff “ ‘could have rea d this a lleg edly inadequate, unspecific war ning a s easily

as he c ould ha

ve

rea d an adequa

te, specific war

ning. And, no amount of specific ity would have protec ted this plaintiff, bec ause he would not ha ve rea d a war

ning.’ ” Id. at 1037 (quoting E.R. Squibb & Sons, Inc. v. Cox
, 477 So. 2d 963, 971 (Ala. 1985)). In other words, even if the war ning wer e adequate, the plaintiff would have been in no better position, and thus the failure to war n did
not cause any

injury to him. ¶ 58 Whil e we do not quarr el with t h e s t at em en t o f law underly ing BA SF’s argument, we

ca n n o t agr ee that any improvement i n the warning s BA SF provided to Flavor chem would have been overlooke d by Solis

. BA SF essentially as k s t h e co u rt to draw only one fac tual infere nce from the ev i d ence: if BA SF had disclosed the study to Flavor chem, that information would have been communicated solely throug h a revision in the MSDS, without
any acc ompany

ing announce ment, and that revision would have g one unnoticed b y Solis

. The evidenc e, when viewed in a light most favor able to Solis
, does not lead t o t hat single fac tual conclusion. ¶ 59 At Flavor chem, Solis was responsible fo r gi v i n g em p l o y ees instruction on wher e to

acc ess MSDSs, and he would sometimes r ead various MSDSs with employ ees so that they had “some understanding ” of what the war nings said. When Solis was asked if he rea d any MSDSs on diace tyl at Flavor chem, Solis explained that “[t] here was no need” beca use he had

rea d “a lo t of MSDSs” at FON A, including MSDSs for the diace ty l. Solis explained that based on this knowledg e, he did not have any questions about t he MS DSs for diac etyl and did not revie w them. Other testimony from Flavor chem employ ees establishes that BA SF’s

-17-disclosure of the L C50 study to F lavorc hem would have cause d Solis to review the MSDS

for diace ty l or would have otherwise trig g ere d his awa rene ss of the study

. The president of Flavor chem, Malinowski, testified t hat during S olis’s tenure , the compa n y was “proac tive
at the time in dealing with diace ty l” and had meeting s with employ ees, including Solis
, about how to handle diace ty l. Malinowski sug g ested that Flavor chem would have investiga ted whether Solis and other empl o y ees should wea r additional protec tive g ear when using diace ty l. As to the MSDS, Dianne Hamer nick, a Flavor chem employ ee, specific ally testified that if Flavor chem had obtained the study as of 2001, it would have taken action to c hang e the MSDS: “Q. I f y ou had that study with all of those words that listed bloody edema
, atelec tasis, hy pere mia, all of those things that we just looked at, would that have chang ed what y ou put on the Flavor chem MSDS in any way ?
A. We would have broug ht that up to Orr Safety and seen if additional persona l protec tive equipment was ne eded a nd then, in turn, updated the MSDS–
* * * Q. I n terms of what y ou would have put on the MSDS y ou would have relied on Orr Safety and those thing s would not have chang ed what you y ourself put on there ; is that rig ht? A. Well, we would have updated it or c hang ed it.”
What the evidenc e reve als is that Flavor chem communicated with employ ees about how to handle diace ty l, and if g iven the study
, Flavor chem wou l d have updated and chang ed the MSDS and possibly chang ed the protec tive equipment require d to handle diace ty l. Whil e Solis did not repe ate d l y revie w the MSDSs for diace tyl beca use he felt familiar with the information provided in them, we conclude that, in view of the evidenc e, the jury could have rationally conclude d that Solis would have become awa re of the additional information from the L C50 study if BA SF had supplied that information to Flavor chem. The jury ’s finding on proxi mate cause as to the failure -to-wa rn claims was not “so palpably err oneous as to war rant a diffe rent re sult.” Lee , 152 I ll. 2d at 456. ¶ 60 BA SF also argues that the jury should have been specific ally instructed that if Solis did
not rea d the availab l e wa rn i n g, the alleg ed failure to war n did not proxi mately cause his injury

. The trial court has discretion to deter mine which instructions to g ive the jury and that deter mination will not be disturbed absent an abuse of that discretion. People v. Simms
, 192 I ll. 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 compre hensively apprised the jury of t he relevant lega l principles. Schultz v. N ortheast Illinois Regional Commuter R.R. Corp. , 201 I ll. 2d 260, 273 (2002). ¶ 61 Her e, wher e the jury was proper ly instructed that Solis was require d to prove proxi mate

causation, the jury was apprised of the rele vant leg al principles, and BA SF’s additional instruction would have been redunda nt. M o reove r, as the fore g oing discussion illust rate s, the proposed instruction ma

y have been confusing to the jury in light of the evidenc e befor e it. This was not a simple case wher e Solis ’s admission that he did not rea d MSDSs for diace ty l

wh il e at Flavor chem fore closed his ability to prove causation. There was evidenc e sug g est in g

-18-that a chang e in t h e BA S F M S DS would have trigg ere d action by Flavor chem and cause d

Solis to revie w the MSDS. BA SF cer tainly could (and did) chal l en ge t h e i nfer ence s to be drawn from the evidenc e, arg uing to the j ury that Solis would never have se en any

chang e in BA SF’s MSDS for diace ty l. Where the jury was otherwise proper ly instructed on Solis ’s burden to show proxi mate ca use on the fa ilure-to-w arn the ory , howeve r, the trial c ourt did not abuse its discretion in deny ing B ASF’s pr oposed instruction.

¶ 62 Neg lige nce: Scope of B ASF’s Duty to Warn ¶ 63 BA SF next ar g ues that the jury rec eived an improper instruction on the failure -to-wa rn claim sounding in ne g lige nce. The court instructed the jury that “Ge rar do Solis claims that he was injured and sustained damag e and t h at BA S F Corporation was neg lige nt in one or

more of the following respe cts: *** in failing to disclose the results of scienti fi c re s earch available to it indic at i n g that the use of diace ty l cause s lung disease or risk of harm to others.” BA SF arg

ues that the instruction imposed an expansive duty on BA SF to war n the flavoring industry (or the world) about diace tyl’s risks, rath er than those to whom BA SF distributes its product. The parties ag r e e th a t Solis ’s first potential exposure to BA SF diace ty l

was in 2001, when BA SF first d i s t ributed diace ty l to Solis ’s employ er, Flavor chem. Acc ording to BA SF, the instruction allowed the jury to fault BA SF for failing to disclose the study to the industry befor e 2001 beca use the instruction ref

ere nced “a duty to disclose” without specify

ing that BA SF only had a duty to discl o se to those who rec eive BA SF distributed products. ¶ 64 The im position of a duty to war n depends on wheth er BA S F and Solis stood in such a relationship to eac h other that the l aw i m p osed upon BA SF an obligation of rea sonable conduct for the benef

it of Solis

. Kirk v

. Michae l Ree se Hospital & Medic al Center
, 117 I ll. 2d 507, 525 (1987). The parties ag ree that BA SF had a duty to war n the users of its products of the dang ers of diace tyl. See Venus v. O’Hara , 127 I ll. App. 3d 19, 23 ( 1984) (“[F]ailure
to war n of a product’s dang erous propensi t i es m ay be a basis for strict liability in tort [citation] and that strict liability there fore may be imposed upon all parties within the chain of distribution, including suppliers, distributors, wholesale rs, an d retailers [citation] .”); Riordan v. International Armament Corp.
, 132 I ll. App. 3d 642, 647-48 (1985) (noting that d i s t ributor may be liable for failure -to-wa rn claim sounding in neg lige nce (quoting Restatement (Second) of Torts § 388 (1965)) ); Smith v. Eli Lill y & Co.
, 137 I ll. 2d 222, 265 (1990) (noting that “ [e] ach ma nufac turer owes a duty to plaintiffs who wil l use i ts drug or be inj ured by it” but “the duty i s n o t s o b ro ad as t o extend to anyone who uses t he ty pe of drug manufa cture d by a defe ndant”)

. The parties also ag ree that beca use BA SF Corporation distributed diace tyl to Flavor chem starting in 2001, it had a duty to war n Flavor chem–a

nd by extension S olis–of the L C50 study as of that da

te. ¶ 65 The question is whether the relationship betwee n BA SF and Solis ’s pre- 2000 employ ers was such that BA SF had a duty to disclose i ts L C50 study to those employ ers. There is no

s u gg estion on appea l that BA SF s upplied diace ty l to either of Solis ’s previous emplo y er s , Olmarc or FON A, so there must be some other basis for imposing a dut y t h at runs to the benef it of S olis. On appeal, Solis offers none . Solis (somewhat puzz lingly ) arg ues t hat t he

-19-instruction g iven proper ly ref lected BA SF’s duty to disclose the s t u d y to Flavor chem, “among others.” Unfortunately
, Solis prese nts no argument–much less any ap p l i ca b le authority –to support a finding that BA SF had a duty to disclose the scientific study to those companies working with diace ty l not distributed by BA SF. See Brewster v. RushPresbyte rian-St. Luk

e’ s Medic al Center
, 361 I ll. App. 3d 32, 35-36 (2005) (re citing fourfac tor test for deciding whether a duty of car e exis ts (citing City of Chicago v. Beretta U.S.A. Corp.
, 213 I ll. 2d 351, 391 (2004)) ); cf. Kirk v. Michae l Ree se Hospital & Medic al Center
, 117 I ll. 2d 507, 525 (1987) (no duty to war n running from doctors to g ene ra l p u blic who might come in contact with doctor’s patient). The only case that Solis cites as support that the instruction was “prope r” is Elam v. Lincoln Electric Co.
, 362 I ll. App. 3d 884 (2005), but in that case the court rec og nized a manufa cture r’s duty to war n the users of its welding rods, wher e the plaintiff had used welding rods made by the defe ndant for 30 y ear s. See Elam
, 362 I ll. App. 3d 884. We note that the jury was proper ly instructed, on the strictly liability failure

to-war n claim, that “B ASF Corporation had a duty to adequately war n and instruct the user about the dang ers of its product ***.” (Emphasis added.) Where Solis prese nts no authority for s o m e ex p an d ed duty
, we can only presume that Solis means that BA SF had a duty to disclose the study

to those to whom it di stributes its products, including F lavorc hem. ¶ 66 We are left to consider whether the instruction g iven p ro p er l y informed the jury that BA SF’s duty to disclose the study to Flavor chem as of 2000, when it first beg an distributing its product to Flavor chem. Given the unique fac ts of this case , that instruction did not fairly
, fully
, and compre hensively apprise the jury of the rele vant leg al principles. Schultz
, 201 I ll. 2d at 273-74. ¶ 67 BA SF contends that the instruction, without mentioning to whom the duty ran, e x panded the conce pt of duty to the entire flavoring industry
, if not the g ener al public. Under the fac ts of this cas e, t h e court should state, specific ally
, that BA SF’s duty to disclose ran to those who use the products that BA SF dis t ri b u t es. The jury hear d testimony that two industry
g roups, FEMA and RI FM, did not have the L C50 study until afte r 2000, but if they had been provided the L C50 study in the late 1990s, they would have disseminated the information to diace ty l users. Solis ’s counsel solicited testimony from Solis ’s expert witnesses that if BA SF had “come forwa

rd with this information they had in their animal study
, *** the medical and scientific community could hav e d is c o vere d the causa l association in 1995 rathe r than 2002.” Wit h that evidenc e bef

o re t h e jury
, and with the i nstruction g iven, t here was a unique risk that the jury

would conclude that BA SF had a duty to warn the entire f

lavoringindustry

. ¶ 68 BA SF next argues that the instruction allowed the j u ry t o fa u l t BASF for failingto d i s cl o s e t he L C50 befor e BASF could have possibly beca me aware of t he contents of t hat L C50 study befor e 2001. Acc ording to BA SF, the instruction allowed Solis to “impute” AG’s knowle dg e to B ASF. To prove a product de fec t claim based on a defe ndant’s fa ilure
to war n, a plaintiff must show “that the defe ndant knew or should h av e k n o wn , in the exercise of ordinary car e, that the product was unrea sonably dang erous and defe ndant failed
to war n of i ts dang erous propensity .” Blue v. Environmenta l En gineering, Inc.
, 215 I ll. 2d 78, 96 (2005); acc ord Baltus v

. W eave r Division of Kidde & Co.
, 199 I ll. App. 3d 821, 830 (1990). T h e trial court instructed the jury that BA SF had a duty to war n with information “ava ilable to it.” Whil e this languag e comes close to the appropr iate standard, we think the

-20-lang uag e too inexact in light o f t h e fa cts of this case

. Ag ain, we note that the trial court

proper ly instructed the jury on the strict liability failure -to-wa rn claim, ex p l ai n ing that “B ASF Corporation has a duty to adequately war n and instruct the user about the dang ers of its products of which it knew, or in the exercise of ordinary car e, should have known, at the time the product left its control.” On rema nd, the court should provide a simil ar instruction with reg ard to the neg lige nt failure -to-wa rn claim, explaining that BA SF only had a duty to disclose scientific inf

ormation that it knew or should have known.

¶ 69 Strict L iability : Diace ty l as Unre asonably Dang erous ¶ 70 BA SF argues that Solis failed to prove that “B ASF Corporation-supplied diace ty l” was

unrea sonably dang erous. I n a strict product liability action, “[ a] product may be found

unrea sonably dang erous by v i rt u e o f a p hy sical flaw, a desig n defe ct, or a failure of the manufa cture r to w arn of the dang er or instruct on the proper use of the product as to which the aver ag e consumer would not be awa re.” Sollami v. Eaton
, 201 I ll. 2d 1, 7 (2002) (citing Renfro v. Allied Industrial Equipment Corp.
, 155 I ll. App. 3d 140, 155 (1987))

. At BA SF’s
reque st, the trial court instructed the jury that “[a] product bear ing an adequate war ning is not defe ctive, nor is it unrea sonably dang erous.” To find in favor of Solis on the strict liability claims, then, the jury

had to conc lude that B ASF’s wa rning was inade quate. ¶ 71 A manufa cture r has a duty to war n wher e the product possesses dang erous pr opensities and there is unequal knowledg e with respe ct to the risk of h ar m , an d t h e manufa cture r or distributor, possessed of such knowledg e, knows or should know that harm may occur absent

a war ning. Sollami
, 201 I ll. 2d at 7. The Restatement (Second) of Torts explains that “a seller is not require d to war

n with respe ct to products, or ingr edien t s i n t h em, which are only dang erous, or potentially so, when consumed in excessive quantity
, or over a long period of time, when the d anger , or potentiality of dang er, is g ener ally known and rec og nized.” Restatement (Second) of Torts § 402A cmt. j, at 353 (1965) (explaining that “dang ers of alcoholic bever ag es” are “g ener ally known or rec og nized”). Where the product is defe ctively desig ned or manu fa ct u red or wher e the possibili ty of injury results from a common propensity of the product that is n o t o b v i o us to the user, howeve r, the manufa cture r or distributor must provide an adequate warning

. Sollami
, 201 I ll. 2d at 20 (citing Genaust v. Illinois Power Co.
, 62 I ll. 2d 456, 467 (1976))

. A product bear ing such a war ning “is not in defe ctive condition, nor is it unrea sonably dang erous.” Restatement (Second) of Torts § 402A cmt. j, at 353 (1965). ¶ 72 I n this case , the question for the jury was whether diace ty l i t s el f wa s “u n re as onably dang erous” beca

use it failed to contain a war ning apprising Flavor chem an d Solis of the dang ers of diace ty l. The nature of Solis ’s clai m wa s t h at BA SF’s MSDS was inadequate beca use it labeled diace ty l as “moder ately tox ic” and failed to disclose that exposure to high

conce ntrations of di ace ty l could cause bronchioliti s obliterans. On appea l, BA SF does not claim that the potential for injury with high exposures was g ener ally known and rec og nized by those using diace ty l. Instead, BA SF ag ain argues that Solis failed to prove that he was exposed to BASF- supplied diace ty l that exceeded a threshold “sa fe le vel.” In other words, BA SF simply repe ats the ar gument that Solis failed to prove that he was exposed to more

-21-than a de minimus level of B ASF’s diac etyl. We have alr eady addre ssed, and reje cted, that
argument. Where BA SF prese nts no other challeng e with reg ard to the strict liability claims, we f ind no error

in submit ting those c laims to the jury

.

¶ 73 Evidentiary Error s ¶ 74 Although we have deter mined that this case must be rema nded for a new t ri al
, BA SF raises a number of claims of evidentiar y err or that are likely to arise ag ain on rema nd. In the interest of judicial economy , we ad d re s s the specific evidentiar y issues likely to rec ur on

re m an d

. S ee Petre v. Kucich
, 331 I ll. App. 3d 935, 944 (2002). A trial court’s decision
reg arding whether to admit evidenc e is revie wed for abuse of discretion. Gill v. Foster
, 157 I ll. 2d 304, 312-13 (1993).

¶ 75 Subsequent Re medial Me asures: Changes to BASF’s M SDS ¶ 76 BA SF first argues that it was improper for the trial court to admi t ev i d en ce that afte r Solis left Flavor chem, BA SF revised its MSDS to include a specific ment i o n t h at

overe x posure to high levels of diace ty l may be associate d with bronchiolit i s o b literans. Evidence of postacc ident reme dial measure s is inadmissible to prove prior neg lige nce. Herzog v. Lexington Townshi p , 167 I ll. 2d 288, 300 (1995). Evidence of subsequent reme dial

measure s may be used for impeachme nt purpos es , h o we v er , so long as the value of the impeachme nt does not rest on an “ impermissible infere nce *** of prior neg lige nce.” Id. at 301. ¶ 77 W e agr ee with Solis that the 2006 MSDS was proper ly used to impeach Dr. Weill, an expert witness for BA SF who testifi ed that “it was not scientifica lly proven that diace ty l could cause bronchiolit i s o b l iterans” and “[t] he association betwee n butter flavoring and bronchiolitis obliterans is unproven.” When asked on cross-e x amination if he was awa re that BA SF’s 2006 MSDS states that “[o] vere x posure to high conce ntration may cause pulmonary irritation that could be associate d with lu n g disease (bronc hioliti s obliterans),” Dr. Weill admitted that he was not awa re of this statement. BASF did not object to this testim ony at trial and fa ils to address it on appea l. 5 ¶ 78 Despite Solis ’s claim that the MSDS was used to impeach other BA SF wi t n esses, the

rec ord shows that the 2006 MSDS was not used fo r i m p eachment with at least three witnesses: J ulie Klees, the associate medical direc tor at BA SF; Ralph Parod, a tox icolog ist
at BA SF; and L ouise Noell, product regulatory manag er at BA SF. None was asked whether

ex p o s ure to diace ty l cause d bronchiolitis obliterans befor e being questioned about the revisions to the MSDS; instead, eac h witness was prese nted the 2006 M S DS an d s i mply

We ar e par ti cul ar ly tr oubl ed tha t i n d i s c u s si ng whet her the 2006 MSDS was use d for 5 impeach m ent , BASF r e p r e sen te d tha t Sol is ’s cou nse l never even at te m pte d to impeach BASF’s
exp er ts wit h t h e 2006 MSDS

. T his is not true. I n it s bri ef
, BASF pro vides re cor d ci ta ti on to the
te st imony of two of thr ee exp er t wit nes ses , but pro vides no m ent ion of BASF’s thi rd exp er t wit nes s, Dr. W ei ll . I t i s di ff

ic ult to pl ace an inn oce nt con st ruc ti on o n t his cruci al omissi on.

-22-asked to confirm that BA SF had chang ed it. Whil e we ag ree that the 2006 MSDS could be 6 used for impeachme nt for any witness who denied that diace ty l co u l d cause bronchiolitis obliterans, the MSDS was not prope rly used to impeac h these witnesse s. ¶ 79 We turn to Solis ’s al t er n at i v e argument, raised for the first time on appea l, that the chang e in the MSDS was admissible beca use BA SF did not act voluntarily
, but was require d
to act by an outside g overnme ntal authority

. See, e.g. , Bulger v. Chicago Transit Authority
, 345 I ll. App. 3d 103, 110 (2003); LoCoco v. XL Disposal Corp. , 307 I ll. App. 3d 684, 693 (1999); Gaunt & Hayne

s, Inc. v. Moritz Corp.
, 138 I ll. App. 3d 356, 365 (1985) (finding that postlawsuit chang e to entra nce was “not a voluntary act” beca use it was re q u i re d by Depa rtment of Transpor

tation order). Solis claims that the OSHA Hazard Communi cations Standard (29 C

. F.R. § 1910.1200(a) et seq. ) require s chemica l manufa cture rs to post new information reg arding hazards posed by a chemica l within three months of the rec eipt of the information, and BA SF’s ch anges to its MSDS there fore was not a voluntary act, but was require d by g overnme nt authority

. We disag ree

. First, we question whether BA SF, as a distributor, was under an obligation to act under the specific provisions that Solis identifies, which Solis asser

ts apply to manufa cture rs. Second, there is no test i m o n y fr om BA SF
personne l that B ASF revised its MSDS pur suant to mandatory OSHA re quirements or a ny other o u tside g overnme nt authority

. The impetus for the chang es appea rs to be

corr espondenc e from t h e C alifornia Depa rtment of Hea lth Service s in May 2006

rec ommending revisions to the MSDS for diace ty l, and Solis points to no testimony showing that the C alifornia depar

tment d i d (o r could) mandate a chang e to BA SF’s MS DS. Where

no testimony establishes that BA SF’s action was not a voluntary
, discretionar y act, any use of the 2006 MSDS for purpose s other than impea chment wa s improper.

¶ 80 Hearsay D ocume nts ¶ 81 BA SF argues that s ev er al d o cu m ents wer e improperly admitted into evidenc e. B ASF contends that these documents are hear say and not admissibl e under any exception to the hear say rule. ¶ 82 BA SF first challeng es the admission of a ca s e repor t authore d by Dr. Yadava, Solis’s
treating pulmonologist, and a number of other phy sicians, which was published in a medical journal betwee n the time of the filing of the lawsuit and trial. We ag ree with BA SF that was

By con tr ast , oth er BASF wit nes ses agree d tha t dia cet yl was har m ful to the lun gs and cou ld 6

cau se bro nch iol it is obl it er ans wit hout re fe re nce to th e 20 06 M SDS. For exa m ple , Pat ri ck Conne r,

a m edi cal dir ect or for BASF, te st if ie d tha t he unde rs too d tha t dia cet yl has “t oxi ci ty to the lun gs,” bas ed on his review of a study by Dr. Pri ce at NI OSH tha t fou nd that “br onc hio li ti s obli te ra ns was bei ng cau sed in worker s overex pos ed to dia cet yl.” Simila rl y, Pher ne Lewi s agree d tha t dia cet yl can

cau se “se ri ous lun g dis eas e.” Even J uli e K le es, who was que st ion ed abo ut the 2006 MSDS
, agree d tha t “overe xpos ure to high con cen tr at ion s of dia cet yl m ay cau se pul m ona ry irri ta ti on tha t cou ld be

ass oci at ed wi th lun g dise ase suc h as br onc hio li ti s ob li te ra ns.”

-23-err or to admit the case repor t as substantive evidenc e at the postverdict exhibi t confe renc e. 7 The t ri al court’s stated g rounds for admitting it–that it was a “docume nt authore d by this particula r witness”–is not a r ecognized hearsa y exception. ¶ 83 Solis argues t hat i t was nonetheless proper for Dr. Yada va to ref er t o the report during his testimony beca

use Yada va rea sonably reli ed o n the repor t to explain the basis for his opinion. “ [T] he under ly ing fac ts or data upon which an expert in a particula r field is f ound
to have rea sonably relied ar e not admitted for their truth. The underly ing fac ts or data are admitted ‘for the limit ed purpose of explaining the basis for the expert witness’ opinion.’ ” City of Ch i ca go v. Anthony
, 136 I ll. 2d 169, 185 (1990) (quoting People v. Anderson
, 113 I ll. 2d 1, 12 (1986))

. The rec ord shows that the case repor t was not used to explain the basis for Yada va’s opinion; the published article simply reha shed and confirme d Yadava’s testimony

. The case repor t’s only purpose was to bolster Yadava’s opinion test i m o n y b y showing that he (and other doctors) had pre v i o u sly rea ched the same conclusion in a case repor t that was ac cepte d and published in a medic al journal. Use of the c ase r eport for this
purpose was improper. See People v. Prince
, 362 I ll. App. 3d 762, 776 (2005) (conc luding that expert’s testimony that her work was “pee r revie wed and verifie d by another rese arc her”

was improper, wher e there was no testimony that expert relied on o p i n i o n s o f others in forming an opinion, and noting that “the peer revie w or verific ation nece ssarily takes place afte r the expert has alre ady done his or her work” ); Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence § 703.1, at 685 (10th ed. 2010) (“[T]he content of the published materia l
to be rea d to the jury must be rea sonably relied upon as a basis for the expert’s opinion, not

mere ly to corr oborate that opinion.”). I t was err or to question Dr. Yadava about his published article , wher e the only

function wa s to bolster his opinion t estimony

. ¶ 84 BA SF also challeng es the admission of two letters sent to Dr. Yadava by two phy sicians who also examined Solis : Dr. Gottschall of National J ewish Hospital in Denve r, Colorado, and Dr

. Orris. Both letters rec ounted the doctors’ views of Solis ’s condition and his work history
, and in the letters, both phy sicians conclude d that Solis ’s bronchiolitis obliterans was induced by his work with diace ty l. The trial court admitted both as substantive evidenc e, over objection. In a postverdic t confe renc e, the c ourt ruled that the le tter fr om Dr. Gottschall to Dr. Yada va was a medical rec ord, and the trial court admitt ed the Orris letter during trial

T he tr ia l cou rt hel d a con fe re nce to admit sever al exh ibi ts int o eviden ce sever al weeks af te r 7 the j ury re tur ned it s v er dic t. Whi le the par ti es appa re ntl y agree d that no e xhi bit s would g o back to the j ury unl ess it re que st ed a spe ci fi c exh ibi t ( whic h t he j ury did not ), we fi nd it tr oubl eso m e tha t the cou rt rul ed on the admissi bil it y o f the doc um ent ary exh ibi ts af te r the verdi ct

. T he exh ibi ts

con si der ed at the con fe re nce wer e ei the r re ad int o the re cor d or dis pla yed to the j ury dur ing wit nes s t e s t i mo n y. W e que st ion how the tr ia l cou rt cou ld rul e, over obj ect ion
, tha t a par ti cul ar doc um en t

cou ld be shown or rea d to the j ury, but the cour t coul d lat er con cl ude , based on argum ent af te r t he verdi ct , tha t the doc um ent was “i nad m is si ble .” For exa m ple
, at the pos tverd ic t con fe re nce the re wer e

sever al obj ect ion s bas ed on hea rs ay and fou nda ti on; if any of the se doc um ent s la cked fou nda ti on or

wer e hea rs ay, the y sh o u l d n o t have bee n pre sen te d to the j ury dur ing tr ia l. A doc um ent ’s admissi bil it y, t he bas is for it s admissi on, and any a p p rop ri at e li m it ing ins truct ion sho uld be rul ed
upon dur ing tr ia l, n ot af

te r t he ver dic t.

-24-afte r a c onversation took place off the re cord. ¶ 85 “Medic al rec ords are *** admissible in I llinois courts as long as a sufficie nt foundation is laid to establish that they are business rec ords.” Troyan v. Rey es , 367 I ll. App. 3d 729, 733 (2006); see also I ll. R. Evid. 803(6) (ef f. J an. 1, 2011). “Satisfying foundational require ments to admit business rec ords require s that the party tender ing the rec ord establish that the rec ord was made in the re gular c ourse of business at or nea

r the time of the event or occur renc e.” W erner v. Nebal
, 377 I ll. App. 3d 447, 457 (2007); Kimble v. Earle M. Jorgenson Co.
, 358 I ll. App. 3d 400, 414 (2005). Any person familiar with the business and its mode of operation
may provide testim ony establishing the foundational re quirements of a business rec ord. In re Marriage of Fields , 283 I ll. App. 3d 894, 905 (1996). ¶ 86 Dr

. Ya d av a ex p lained that he ref err ed Solis to two specia lists, Dr. Gottschall and Dr. Orris, and those doctors repor ted back to him in writing. Dr. Yadava cer tainly rec eived the doctors’ repor

ts in the regular course of his prac tice, as nece ssary to fashion a proper course of treatment for Solis
, and he was, of course , familiar with h i s p ra ct i ce and its mode of
operation. Although we rec og nize that Dr. Gottschall and Dr. Orri s d i d n o t make their

rec ords in the reg

ular course of Dr. Yadava’s medical prac tice, the incorporation o f those letters into Dr. Yada

va’s course of treatment is en o u g h to satisfy the business rec ords exception. “Where a third party is authorized by a busi ness t o g ener ate the rec ord at issue, the rec ord is of no use to the business unless it is acc urate and, there fore
, the rec ord bear s sufficie nt ind i ci a o f reliabili ty to qualify as a business rec ord under the hear say rule.” Argueta v. Baltimore & Ohio Chicago Terminal R.R. Co.
, 224 I ll. App. 3d 11, 20-21 (1991). Whil e we acknow ledg e that “a person rec eiving a document from a business could not solely by virtue there of lay a s u ff i ci en t foundation for admitting the document,” there is an exception wher e “the business rec eiving the i n fo rm at i o n, acting in the regular course of business, integ rate s t h e i nformation rec eived *** and relies on it in its day -to-day
operations.” Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence § 803.6 (10th ed. 2010) (collec ting case s). The trial court did not abuse its discretion in admitting the repor ts sent to Dr. Ya dava. ¶ 87 The next document at iss u e i s a handwr itten note that Solis rec eived from Dr. Rose at NJ H, which stated “I am worrie d that y ou may have bronchiolitis obliterans (B O) from flavor chemica ls.” Solis testified about the note, explaining that he a sked Dr. Rose to write down the diag nosis so that he could reme mber the name “bronc hioliti s obliterans.” BA SF forf eited this objection for revie w beca use it did not object to Solis testify ing ab o u t the note. See Stapleton v. Moore
, 403 I ll. App. 3 d 1 4 7, 156 (2010). Moreove r, at trial BA SF did not dispute that the document was not of fer ed for the truth of the matter asser ted, but was used to show that Soli s was on notice of his diag nosis. See Brawner v. City of Chicago , 337 I ll. App. 3d 875, 888 (2003) (When “out-of- court statements are offe red to prove their eff ect on

a listener’s mind or to show why the listener s u b s eq uently acte d as he did, they are not hear say and are admissible.”). The Depa rtment of L abor questionnaire, in which Dr. Yadava provides a summary of Solis ’s medical condition, was not admitted into evidence until the postverdict conf

ere nce. A t the confe renc e, Solis’s counsel informed the trial court that Dr

. Yada va had testified reg arding the d o cu m en t

. In fac t, Dr. Yadava did not provide any testimony about the document, and Solis ref ere nces no other testimony that would establish

-25-a foundation for admitting the document as a medical rec ord. The questionnaire should not

have be en admitted as substantive e vidence

.

¶ 88 AG’s Ge rman MSDS ¶ 89 BA SF next challeng es the trial court’s decision to admit an MSDS appar ently cre ated by BA SF’s Ger

man pare nt company , AG, in 1996 (Ge rman MSDS). AG’s Ger man MSDS used the words “har

mful by i n h al ati on,” but BA SF’s MSDS did not. Solis argues that it was improper for Solis to question J ulie Klees and Ralph Parod about the Ger man MSDS, display the Ger man MSDS to the jury
, and then admit the Ger man MSDS into evidenc e, wher e Solis called no witness to lay a foundation for t h e Ger man MSDS and simply asked BA SF witnesses to compar e the languag e in the Ger man MSDS to BA SF’s MSDS. (B ASF explains that BA SF produce d a copy of the Ger man MSDS to Solis ’s cou n s el d u ri ng discovery in another lawsuit.) Solis acknow ledg es that a proponent of documentar y evidenc e must lay a foundation for its introduction b y s h o wi n g that rec ord was made in the regular course of business and that the rec ord is what it is claimed to be. See, e.g. , Anderson v. Human Rights Comm’n
, 314 I ll. App. 3d 35, 42 (2 0 0 0 ) (c i t ing Michae l H. Gra ham, Cleary & Gra

ham’s Handbook of I llinois Evidence § 901.1 (7th ed. 1999)); Kimble v. Earle M. Jorgenson Co.
, 358 I ll. App. 3d 400, 415 (2005). But on appea l, Solis ref ere nces no testimony that explains how the Ge rm an M S DS was cre ated or otherwise provides any foundation for using it to

cross-e x amine fac t witnesses. As noted ab o v e, in the absenc e of evidenc e reg arding the circ umstances of a document’s cre ation, “the business rec ords exc eption is not justified

mere ly by evidenc e reg arding the prac tice of the docume n t ’s re t ention.” Apa v. National Bank of Commerce
, 374 I ll. App. 3d 1082, 1088 (2007). Questioning Klees and Parod about the Ger man MSDS, without laying a sufficie nt foundation, was imprope r.

¶ 90 Solis’s Calculati ons ¶ 91 BA SF next challeng es the trial court’s decision to al l o w S o l i s t o t es t i fy reg arding calc ulat i o n s he made about BA SF’s sales of diace ty l to Flavor chem. On redire ct examination, Solis pulled a piece of paper out of hi s pocket and explained that he had

c a lc u la te d h ow much diace ty l BA SF supplied to Flavor chem. He based his calc ulations, d o n e

over lunch appar ently without the knowledg e of his attorney s, on Flav o rchem purcha se

rec ords he saw on counsel’s table. (I t is unclea r if the purcha se rec ords had previously been admitted into evidenc e.) These recor ds extended from 1998 to 2006 and included a ll sales

o f d i acetyl, without distinguishing whether the diace ty l was used in the powder room an d liquid room. ¶ 92 On appea l, Solis contends that the rec ords wer e proper ly used as a “demonstrative aid” for his testimony

. Solis ’s ca lculations were not used to expl ain or illustrate this testimony
, howeve r; he testified that he had no knowledg e of the information contained in the rec ords befor e he found them on counsel’s table. Solis had previously testified that he believed that BA SF supplied 50% of the diace ty l Flavor chem u s ed betwee n 2000 and 2004, but that estimate wa s based on his encounte rs with B ASF diace ty l a t the Flavor chem f

acility . Solis used the rec ord he found in an attempt to reinfor ce his testimony
, not illust rate it. Solis could

-26-offe r no definitive t estimony about what information was contained in the records, an d h e

could not lay a proper foundation to establish that the rec ords wer e what he claimed them to be. See Anderson
, 314 I ll. App. 3d at 42. The manner in which Solis attempted to inject the sales information at trial was improper

.

¶ 93 Improper Ex pert Testimony ¶ 94 We have alre ady add re s s ed s o m e of BA SF’s complaints reg arding the testimony of Solis ’s experts reg arding causation. BA SF also argues that Dr. Eg ilman improperly testified that BASF may have indirectly supplied diace ty l to FON A. Over objection, Dr. Eg ilman testified BA SF may have supplied diace ty l to C& A, and C& A supplied diace ty l to FON A. Dr. Eg ilman then went on to opine that even though he could n o t t ra ce how much, if any , BA SF diace ty l Solis was exposed to at FON A, BA SF could have preve nted Solis ’s injuries if i t had adequately war ned FON A about the harmful eff ects of diace ty l. On crossexamination, Dr. Eg ilman admitted he did not know whether C&A sold any BA SF diace ty l
to FON A. I t is well established that “expert opinions based upon *** g uess, speculation, or conjec ture as to what *** might have h appened are inadmissible.” Modelski v. Navistar International Transport ation Corp

. , 3 0 2 I l l

. App. 3d 879, 886 (1999). I t was improper to allow Dr. Eg ilman to testify about a wholly speculative lin k b et we en BA SF diace ty l and FON A and to further testify that based on that supposed link, BA SF’s failure to war n FON A contributed to Solis’s injury

.

¶ 95 Exc lusion of St atute of Limit ations Evidence ¶ 96 BA SF next argues that the trial court improperly barr ed BA SF from questioning Solis about his statements in medical re co rd s kept by his phy sician, Dr. Sherman. On crossexamination, counsel for BA SF questioned Solis about a meeting he had with Dr. Sherman. When Solis testified that he could not reme m b er the meeting
, counsel then attempted to ref resh Solis’s rec ollection with Dr. Sherman’ s rec ords: “Q. Di d y o u t ell Dr. Sherman, on Dec ember 15, 2004, that y ou had exposures to chemica ls and fumes while you wer e at wor k. Does that he lp y ou with that?
A. I don’t think so, no. Q. Okay . You don’t re member?
A. I don’t reme mber. Q. All rig ht. You don’t dispute what he sa y s in the rec ord? [S olis’s Counsel] : Your Honor, the rec ord–I don’t think it can be used tha t way

. THE COURT: Sustained.”
BA SF did not pursue the line questioning. BA SF appar ently re l i ed on an entry from Dr. Sherman’s r ecor ds that Soli s “did rela te sig nificant oc cupational e x posures at that time.” ¶ 97 We find no err or i n t h e t ri al co u rt ’s ru l i n g. W h er e counsel’s attempt to refr esh

rec ollection failed, counsel could not simply press on and ask if Solis disputed the contents of a letter Dr. Sherman sent to another phy sician. Counsel could have attempted to impeach

-27-Solis ’s trial testimony throug h the introduction of admissible evidenc e sufficie nt to establish

that Solis made the statement to D r. Sherman. See, e.g. , People v. Shatner
, 174 I ll. 2d 133, 153 (1 9 9 6 ) (w h er e witness testified that she did not reme mber g iving a statement to detec tive, cou n s el could only impeach her throug h the testimony of the detec tive, not by using the detec tive’ s writ

te n s ta te me nt o n c r o s s

- e xa

mi nation). Moreove r, beca use BA SF now argues that this evidenc e was rele vant to its statute of limit ations defe nse, BA SF must establish that the evidenc e was admi s s i b l e not just for impeachme nt purposes, but as substantive evidenc e ( i.e.
, t o prove that Solis did in fac t relate “sig nificant occupational exposures” to Dr. Sherman). Even though Solis ’s statement may be admissible as a party opponent admission, BA SF must also establish that Dr. Sherman’s l ett er meets some exception to the hear say rule in or der to r ely on Solis ’s admission. See, e.g. , Horace Mann Insurance Co. v. Brown
, 236 I ll. App. 3d 456, 461 (1992) (Where one out-of-c ourt statement is found within another out-of-c ourt statement, “both levels must fall within an exception to the hear say rule in order to be used as substantive evidenc e.”)

. Where BA SF did not proper ly
pursue any questioning to impea ch Solis or to introduce his state ment as an admission of a party opponent, the trial c ourt did not err in its ruling

.

¶ 98 Instructional Err ors ¶ 99 BA SF pre s en t s t wo ar guments as t o the j ury instructions. The trial court’s decision on which instructions to g ive the jury will not be dis turbed absent an abuse of that discre tion. Simms
, 192 I ll. 2d at 412. The s t andard for deciding whether a trial court abused its discreti o n i s whether the i nstructions fairly and fully apprised the jury of t he relevant law. Schultz , 201 I ll. 2d at 273-74. ¶ 100 BA SF argues that the trial court abused its discretion in g iving I PI 400.10, which states in part, “it is not a defe nse that the condition of the product could not have been discovere d by BA SF Corporation or that ca re was used in the manufa cture of the product.” The trial
court noted that it g ave the instruction to addre ss BA SF’s co n t en tion that BA SF did not brea ch its duty to war

n beca use it did not know of the harmful eff ects of diace tyl and did not know of the L C50 study

befor e Solis’s ex posure. We agree with B ASF that the instruction should not have been g iven. Whil e BA SF argued that it could not have kn o wn ab o u t the harmful e ffe cts of diac etyl, it did not advanc e a “due car e” defe nse by claiming that BA SF exercised car e i n t h e manufa cturing proce ss or could not discover the condition of the product. See Baier v. Bostitch
, 243 I ll. App. 3d 195, 208 (1993) (I llin o i s Pattern J ury I nstructions, Civil
, No. 400.10 (2d ed. 1 9 7 1) was appropr iate wher e defe ndant’s eng ineer “testified as to the defe ndant’s extensive testing proce sses and as to the developments and

new materia ls in manufa cturing proce sses”). BA SF was a distributor, not a manu fa ct u re r. Moreove r, I llinois Pattern J ury Instructions, Civil
, No. 400.10 (Supp. 2009) (her einaf ter, I PI Civil (Supp. 2009)) “ should not be g iven if plaintiff’s c laim of liability is failure to wa

rn.” I PI Civil (Supp. 2009) No. 400.10, Notes on Use, at 120. In this case , I PI Civil (Supp. 2009) No. 400.07D addre ssed the appropr iate standard for the failure -to-wa rn claim by instructing the jury that “B ASF C orporation has a duty to adequa tely war n and instruct the use r about
t h e d an gers of its product[s] of which it knew, or, in the exercise of ordinary car e, s h o u l d have known, at t he ti me t he product left i ts control.” I PI Civil (Supp. 200 9 ) No

. 4 0 0 .07D.

-28-That instruction fully addre ssed any claim that BA SF did not know or should not have

known about the harmful eff ects of diace ty l. See W

oodill v. Parke Davis & Co.
, 79 I ll. 2d 26, 35 (1980) ( finding that the “kne w or should have known” standa rd i s appropr iate for

strict liability failure -to-wa

rn ca ses). ¶ 101 BA SF argues that the trial court abused its direc tion in g iving I PI Civil (Supp. 2009) No. 400.07C, stating that “B ASF Corporation has the duty to manufa cture and sell a product that is not in an u n re as o nably dang erous condition. That dut y cannot be deleg ated to another .” Whil e it was unne cessa

ry to include a r efe renc e to a “ duty to manufac ture” with respe ct to BA SF, the trial court did not abuse its discretion in g iving I PI Civil (Supp. 2009) No. 400.07C, stating that BA SF has a nondeleg able duty to “sell a product t h at i s n o t i n an

unrea sonably dang erous condition.” An instruction is justified when it is supported by some evide n ce , ev en sl ight, in the record. Leonardi v. L oyola University of Chicago
, 168 I ll. 2d 8 3, 100 (1995). Her e, a BA SF employ ee testified that employ ers like Flavor chem are require d by OSHA to understand the chemica ls that are broug ht into the workplac e and the
eng ineer ing con trols neede d to handle those chemica ls. We find no abuse of discretion in
g iving this instruction based on the e vidence befor e the tria l court.

¶ 102 CONCL USI ON ¶ 103 W e conclude that it was err or to direc t a verdic t in favor of Solis on t h e s t at u t e o f limit ations iss u e, an d we must there fore reve rse and rema nd for a new trial. We also find

err ors in the admission of evidenc e and the j ury instructions. Solis nonetheless argues t hat
any proce eding s on rema

nd should be limit ed to the question of Solis ’s liability
, leaving the damag es awa

rd to stand. We disag ree

. The evidentiar y and instructional err o rs ar e intertwined with the extent of BA SF’s liability
, espec i al ly with reg ard to the scope of BA SF’s duty to war

n, and those issues af

fe ct t h e jury ’s deter

mination on damag es. A liability -only retria l is there fore inappropriate. See Banovz v. Rantanen
, 271 I ll. App. 3d 910, 920 (1995) (exercising discretion to orde r p artial liability -only retria l wher e amount of damag es awa

rded to plaintiffs was completely unaff ecte d by er ro r i n failing to dismiss defe ndants’ counter claims ag ainst o ne another ); Tyco Electronics Corp. v. Illinois Tool W orks, Inc.
, 384 I ll. App. 3d 830, 835 (2008) (finding damag es-only retria l inappropriate wher e “the prec ise acts for which a defe ndant is held liable deter mine the extent of liability ”). For the fore g oing r easons, we reve rse a nd rema nd for a new tria l.

¶ 104 Reverse d and re manded.

-29-