Jury Duties

The Old "Don't Say Anything Defense" Doesn't Work Anymore. Neither Does the "Corporate Parent Didn't Tell Us" Defense..

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Jim MontagueBy Jim Montague, Executive Editor

Some days it really doesn't pay to look in the mailbox. Bills aside, I recently got a notice to show up for jury duty, and so on July 29, I went to the Circuit Court of Cook County's branch at the Richard J. Daley Center in downtown Chicago. And, as usual, I made it to the last few minutes of the day without being selected, was sure I wouldn't be picked, and then was empaneled for a civil trial. Eeek!

What followed was a two-week odyssey that I couldn't talk about until its arguments and deliberations ended late on Aug. 14. Afterwards, Circuit Court Judge Claire McWilliams said I could even write a column. So here it is.

Now one reason I thought I wouldn't be picked is the lawsuit was Solis vs. BASF, which turned out to be a "popcorn lung" case. I explained that I often cover the chemical industry, but acknowledged I could be objective anyway. Yes, I sometimes wish I could lie better.

Now, I also covered my share of criminal and civil trials in my years as a general assignment and police reporter. Back then, I learned that—unlike on TV and in the movies—it's hard to tell the good guys from the bad guys because there are few if any heroes, especially in civil litigation. Unfortunately, civil trials too often consist of parties who think they can do better, either get more or pay less, in a trial than by sucking it up and coming to a compromise and settlement on their own.

So this time, my fellow jurors and I were barraged with close to 80 hours of testimony. The plaintiff was Gerardo Solis from South Elgin, Ill., who worked for Flavorchem in Downers Grove, Ill., from about 1999 to 2006. During that time, he helped produce many products, including butter flavorings containing the chemical diacetyl. Solis already had asthma, but a host of experts brought in by his lawyers reported that diacetyl, some of which was made by BASF, caused him to get brochiolitis obliterans (BO). This illness scars the tiny airways in victims' lungs until they develop debilitating and permanent obstructive pulmonary disease. There was plenty of self-conscious coughing in the court room as the trial unfolded.

Anyway, the plaintiffs next sought to establish a tenuous (I felt) link between BASF's routine acute-inhalation study of diacetyl in rats and chronic exposure in humans, but then backed it up with more expert testimony. The animal study was conducted in 1993 by BASF Corp.'s parent company in Germany, and the plantiffs claimed that BASF hid these results from its customers and users, while the defense argued that BASF didn't hide the test results; that it had properly classified diacetyl as an irritant on its material safety data sheets (MSDSs); and that Solis had severe asthma and not BO.

In the end, the jury deliberated for about for four hours, and awarded about $30 million to Mr. Solis, which included more than $6 million for lost and expected wages and the two lung transplants he will almost undoubtedly require in the next few years. I thought this was more than what was needed and said so, but my fellow jurors were unconvinced, and I couldn't justify being a holdout in this situation.

So what's the take home message here? Get your corporate baloney together. Fill out your MSDSs or whatever other documentation you need, and then make some more serious and proactive efforts to educate customers and users about the potential dangers and safe handling procedures for your products and equipment. The old "don't say anything defense" doesn't work anymore. Also, better coordinate between corporate divisions. The old "corporate parent in Europe didn't tell us" defense also seems to be equally ineffective. These days, full disclosure of a thorough risk-assessment plan and its implementation is likely the best defense.

Juries, like most of their fellow registered voters, seem to be more than a little grumpy these days, especially if they've been away from their regular jobs for a couple of weeks. We're not talking Old Testament retribution here, but waiting to settle issues like this in court is no way to run a railroad. (Cough.)

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