Recently, the Illinois Fourth District Appellate Court reversed a $32 million judgment against BASF Corp., which had been found liable for the plaintiff’s lung disease. The plaintiff had developed bronchiolitis obliterans that allegedly resulted from exposure to diacetyle. The diacetyle, which was distributed by BASF, was traced to the plaintiff’s work at a plant that produced powdered flavoring, such as butter popcorn flavoring.

BASF claimed that the claim was barred because it was not filed within the two year statute of limitations for personal injury cases in Illinois. The trial court, however, accepted the plaintiff’s argument that because he was not diagnosed with bronchiolitis obliterans until 2006, and the suit was filed in 2007, the case was viable.

On appeal, the appellate court determined that an official diagnosis date is not necessarily the date upon which the statute of limitations period begins to run. Noting that the two year limitation period begins when the plaintiff “knew or should have known” of his injury, the appellate court reversed the trial court’s decision and remanded the case for a new trial. Relying upon evidence of lung testing performed at the plaintiff’s workplace, and his subsequent lung-related work restrictions in 2005, the appellate court determined that it was for the jury to determine whether the plaintiff knew, or should have known, of his injury prior to his 2006 diagnosis, and thus, whether the case was filed within the limitation period.

The case is Gerardo Solis v. BASF Corp., case number 1-11-0875, in the Illinois Fourth District Appellate Court.