Losing by Winning: Popcorn Lung Verdict

Sometimes you can lose big by winning, a plaintiff in Illinois found out the hard way, losing a $30 million verdict in a popcorn lung case.

The 45-year-old plaintiff was diagnosed with bronchiolitis obliterans, presumably as the result of working in a butter flavor processing plant for nearly 20 years. His lungs are shot, down to 25% of capacity.

Plaintiff’s lawsuit alleged that a bunch of companies allowed the plaintiff to be exposed to diacetyl in the factory in which he worked, and that they knew of the risks associated with diacetyl, but did not warn those exposed to it. Everyone else was smart enough to settle the case except BASF, the manufacturer, who apparently thought a jury would buy their nonsense. They reportedly offered $350,000 to settle.

Not so much. The jury crushed BASF with a $30 million verdict ($32 million cut back by 5% with comparative negligence). The jury might have been swayed by, you know, the proof that the company knew that rats exposed to diacetyl developed severe lung disease from their own study and told no one and did nothing.

But… here’s the problem. The Fourth Division First District Illinois Appellate Court flipped the verdict and ordered a retrial. Why? Plaintiff won a directed verdict on the issue of the statute of limitations with respect to when he knew he may have suffered an injury as the result of the plaintiffs’ negligence.

So BASF argued that the trial court erred by directing a verdict for plaintiff on the SOL issue when it was “undisputed that plaintiff had some knowledge of an injury (a severe condition in his lungs) that, if found to put plaintiff on notice, would have barred plaintiff’s claim. The court believed that the evidence was not so clear so that no reasonable jury could have concluded plaintiff did not know or should not have known the cause of his lung injury.

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I can’t fault plaintiff’s lawyers here. I would have done exactly what they did. When you can knock out an easy way for the jury to avoid compensating your client, you almost always have to take that out. But the jury awarded $32 million. When they asked for this ruling, you have to think they were getting good vibrations from the jury. Usually, although certainly not always, you can feel a jury before it renders a verdict like that. So, I think they made the right call based on the knowledge they had when they sought judgment on that issue. But I bet they swallowed hard first.

So BASF wins. Lucky for them. That jury still would have hit them, I’ll bet you anything. But here’s the bad news for them: they have to try the case again. And the facts have not changed one bit.

You can find the opinion in Solis v. BASF here.

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