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Rosas v. BASF Corp.

California Court of Appeals, Second District, Fifth Division

May 21, 2015

ISMAEL ROSAS, Plaintiff and Appellant,
BASF CORPORATION et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC400974 Amy D. Hogue, Judge.

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Metzger Law Group, Raphael Metzger, Kimberly A. Miller, Kathryn A. Saldana and Kenneth A. Holdren for Plaintiff and Appellant.

Schiff Hardin, John N. Scholnick, Amy M. Rubenstein and Kathleen A. Stimeling for Defendant and Respondent BASF Corporation.

Wilson Elser Moskowitz Edelman & Dicker, Thomas C. Corless, Josephine C. Lee-Nozaki; Cray Huber Horstman Heil & Vanausdal, Daniel K. Cray and Scott D. Pfeiffer for Defendant and Respondent Berje Inc.

Booth, Jason M. Booth and Emily J. Atherton for Defendant and Respondent Citrus and Allied Essences Ltd.

Horvitz & Levy, David M. Axelrad, Dean M. Bochner; Lewis, Brisbois, Bisgaard & Smith, Peter L. Garchie, Ruben Tarango; Sedgwick, Craig S. Barnes and Robert Kum for Defendant and Respondent Centrome, Inc.

Arnett Law Group, Daniel J. Arnett, Kurt B. Drain; Wood, Smith, Henning & Berman and Tracy M. Lewis for Defendant and Respondent Elan Chemical Company, Inc.

Gordon & Rees, Miles D. Scully, Jason F. Meyer, J. Todd Konold and Kara Persson for Defendant and Respondent Emoral, Inc.

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WFBM, Karen M. Sullivan and Sadaf A. Nejat for Defendant and Respondent O'Laughlin Industries, Inc.

Alston & Bird, Peter Masaitis and Jesus J. Torres for Defendants and Respondents O'Laughlin Industries Co., Ltd. and O'Laughlin Tianjin Industries Co.



Plaintiff and appellant Ismael Rosas appeals from judgments entered after the trial court granted summary judgment in favor of defendants and respondents BASF Corporation; Berje Inc.; Citrus and Allied Essences Ltd.; Centrome, Inc., doing business as Advanced Biotech; Elan Chemical Company, Inc.; Emoral, Inc.; O'Laughlin Industries, Inc.; O'Laughlin Industries Co.. Ltd.; and O'Laughlin Tianjin Industries Co.[1] He also appeals the order denying his postjudgment motion for relief and reconsideration.

The result on appeal turns on whether the evidence[2] is susceptible to only one legitimate inference supporting the conclusion that, as a matter of law, Rosas was aware of his injury and facts that would lead a reasonable person to suspect a wrongful cause for that injury. The trial court concluded that a two-year statute of limitations began to run on Rosas’s claims in 2003, because the undisputed evidence demonstrated he was hospitalized with an unknown disease that he suspected was caused by exposure to a particular chemical at his work in a food flavoring plant. We conclude the evidence is susceptible to more than one legitimate inference, and that it is a question of fact for the jury to determine whether the facts known to Rosas before November 2006 were enough to put a reasonable person on inquiry notice that his lung disease was caused by the wrongful act of another. Accordingly, we reverse the trial court’s order granting summary judgment and remand for further proceedings.

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Rosas was an employee at Gold Coast Ingredients, Inc. from 1994 or 1995 until April 2007. The company manufactures and sells food flavoring products. After he was transferred to the powder production room in 1996, Rosas’s responsibilities included mixing various powders and liquids, including liquid chemicals such as diacetyl and benzaldehyde, to make food flavorings. Rosas testified he used many liquid chemicals, too many to remember all their names. Between 1996 and 2001, Rosas made flavorings using diacetyl about three times a day, and after 2001, the frequency increased to about six times a day, because the company was making larger amounts of butter flavoring.

Sometime after he began working with the powders and chemicals, he began experiencing pain or irritation in his nose, eyes, throat, and lungs. He began coughing around 2000 or 2002. In 2001, he saw a doctor for flulike symptoms and was given antibiotics. He was out of work for two or three days due to his illness, and returned with a doctor’s note stating he had "chronic acute bronchitis."

In 2003, Rosas spent four days in the hospital for symptoms of pneumonia. He had a lot of coughing, fever, phlegm, and pain in his nose and lungs. Rosas shared with his doctors his suspicions that his illness might be related to chemicals at work, but the doctors never communicated a diagnosis to him or told him his illness was due to his work.

Rosas continued to experience coughing and flu-like symptoms in 2004, but the appellate record does not contain evidence any doctor diagnosed the problem or its cause. Sometime in 2005, Rosas asked to be moved from the powder production room to the warehouse, because he felt the powder related to his increasing cough. According to Rosas’s testimony, he brought a note from one of his doctors and Gold Coast transferred him to the warehouse a few days later. However, Rosas’s supervisor testified he did not recall learning of any health issues as a result of Rosas’s work at Gold Coast until after Rosas stopped working in 2007.

In May 2005, Rosas was referred to Dr. Korotzer, a pulmonary physician at Kaiser, because his symptoms were no longer "flu-like." Dr. Korotzer examined Rosas and determined that he had severe obstructive lung disease, but that its etiology, or cause, was unclear. Dr. Korotzer’s medical report included a medical history that noted Rosas’s past diagnoses of chronic bronchitis and his hospitalization in February 2003 for pneumonia. It notes a chronic runny nose and congestion, including postnasal drip, and that a February 2003 sinus X-ray was consistent with chronic sinusitis. Dr. Korotzer also notes that a

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chest X-ray from February 2005 "is relatively unchanged from x-rays dating back to February 2003, although there may be some slight increase in the prominence of the lung markings over this time period.” The “social history” section of the report stated: “The patient works in a boiler room. In the past, he has been exposed to some dust, which is sand-like, and he thinks it is some sort of sugar molecules, although he is not sure of the exact name of it. He wore a mask during this time, and was exposed to this dust for approximately three years. He is no longer working in that department, and is now no longer exposed to any type of dust. He does work with some chemicals at the present time. These do not cause him any kind of irritation.” Dr. Korotzer ordered a CAT scan to rule out some possible explanations for Rosas’s lung disease.

On April 26, 2006, Rosas saw his primary care physician, Dr. Rodriguez, because his cold was more constant and his nose was very itchy. Dr. Rodriguez told him it was normal for people who worked with powder to have allergic symptoms like a cough and runny nose. The doctor gave him a note stating Rosas “suffers from chronic lung disease. He should not work around chemicals or toxic substances. He also shouldn’t do work that requires moderate to heavy exertion.”

On July 14, 2006, Rosas returned to the pulmonary physician, Dr. Korotzer, who noted that the likely cause of his disease was an old infection. Dr. Korotzer wrote and gave Rosas the following note: “To Whom It May Concern: [¶] I am a pulmonary physician at Kaiser Permanente Bellflower caring for Ismael Rosas. The patient has a chronic lung condition. Usually with this chronic lung condition exposure to odors from chemicals or fumes from any type causes the patient’s respiratory condition and symptoms to worsen. Therefore, possible in the work environment minimization of any exposure to chemicals, fumes or odors will help the patient in [sic] and would be advisable if possible.” Although Dr. Korotzer believed that exposure to irritants such as strong odors or chemicals could exacerbate Rosas’s underlying chronic lung condition, causing a flare-up or increased symptoms such as severe cough and wheezing, he did not believe Rosas’s exposure to chemicals had caused the lung condition.

Rosas saw Dr. Korotzer again in September 2006 about his continuing cough and difficulty breathing. Rosas told Dr. Korotzer he worked with powder, and Dr. Korotzer responded that some people sometimes respond to that type of powder. The notes from that visit indicate that the cause of Rosas’s illness remained unknown, but the severe lung obstruction had worsened from August 2006. There is no evidence in the record that Dr. Korotzer asked any follow-up questions about the powders or chemicals Rosas was exposed to at work, and Rosas testified he did not tell the doctor

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about any suspicions the powders or chemicals might be causing his illness. Rosas did not list the particular powders or chemicals he was exposed to at work, but there is no evidence a doctor asked him to do so either. Dr. Korotzer wrote another “To Whom It May Concern” letter advising that Rosas has a chronic lung condition and is limited to carrying no more than 50 pounds for any length of time. The letter noted that this would greatly aid Rosas in terms of his respiratory function.

In November 2006, doctors from the National Institute for Occupational Safety and Health (NIOSH) met with Gold Coast employees, and a doctor informed Rosas the results from his pulmonary function test were the worst of all the employees, he had bronchiolitis obliterans, and his illness was caused by diacetyl. In early November, a doctor with the occupational health branch of the State Department of Health Services contacted Dr. Korotzer and informed him of the health risks associated with exposure to flavoring ingredients, including the chemical diacetyl, and its association to the lung disease bronchiolitis obliterans. Before communicating with the State Department of Health Services, Dr. Korotzer had never read anything about any connection between the flavoring industry and lung disease, and had never treated a patient for bronchiolitis obliterans. After reading some materials, Dr. Korotzer felt confident that chemical exposure had likely caused Rosas’s lung disease. Dr. Korotzer met with Rosas on November 22, 2006, noting that the ...

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