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A worker allegedly sickened by exposure to dangerous chemicals contained in certain food flavorings has won a new trial against the supplier of those flavorings, after an appeals court ruled the trial judge improperly disclosed the plaintiff’s status as an undocumented immigrant.

The ruling in Velasquez v. Centrome, Inc. underscores the responsibility companies have to protect against exposure to harmful products – a responsibility that should not be diminished simply because of a plaintiff’s immigration status.

According to court records, the plaintiff alleged his lung disease was the result of occupational exposure to a chemical compound called diacetyl, which gives an intense buttery flavor and was distributed by the defendant. The plaintiff began work as a temporary employee at a company that made food flavorings, and within a year, he became a full-time, permanent employee.

As part of his duties, he moved diacetyl in both open and closed bags and containers from one part of the facility to another. He also used a sprayer to mix the chemical compound into batches of dry and liquid flavoring. In other cases, he hand-mixed the compound into certain products.

In carrying out these jobs, he regularly breathed in particles of the compound that floated into the air. During this time, the defendant produced roughly 80 percent of this specific compound that the plaintiff’s employer used.

Although material safety data sheets indicated the chemical was “harmful by inhalation,” it didn’t include any specific warnings on any diseases associated with exposure.

At the time, there weren’t any federal restrictions limiting exposure to the compound. It wasn’t until four years after the worker stopped working at the firm that state-level OSHA officials issued exposure limits.

During one incident in 2005, the worker reportedly inhaled a combination of chemical compounds that included a different chemical than the one at issue here. It was after that incident that he first experienced trouble breathing and sought medical intervention. A doctor gave him an inhaler and diagnosed him with a respiratory infection. However, his condition didn’t improve, and he was hospitalized twice before a company physician informed him he could no longer work in his condition.

It wasn’t until after he left the job that he was diagnosed with a rare lung disease called bronchiolitis obliterans. The condition is usually fatal.

While claims of negligence against his employer were barred under the exclusive remedy provisions of state workers’ compensation law, he was free to pursue a product liability claim against the maker of the allegedly dangerous compound. His claim specifically asserted negligence, negligence per se, strict product liability, and failure to warn.

Prior to trial, the plaintiff filed a number of motions, including one that would bar presentation of any evidence or comment referencing his immigration status or the fact he had falsified information when applying for employment. The plaintiff argued the evidence was irrelevant to the claim (he was not seeking loss of earnings or earning capacity), it was more prejudicial than probative, and it would constitute as “bad acts” that would tend to prove character.

The defense countered that evidence of the plaintiff’s immigration status should be allowed for the purpose of allowing expert testimony regarding his ability to receive a lung transplant, which he would need in the future to survive. The defense said it would not contest the motion if the plaintiff would drop his claim on the future necessity of a lung transplant.

The trial judge ultimately decided that, while undoubtedly highly prejudicial, such evidence was important in terms of why the plaintiff was ineligible to receive a lung transplant. Jurors were informed of the plaintiff’s illegal immigrant status and subsequently ruled in favor of the supplier, finding its acts were not a substantial factor in causing the plaintiff harm.

However, the appellate court reversed on the grounds it was error to disclose the plaintiff’s status to jurors.

The Ferraro Law Firm handles claims resulting from defective products or dangerous pharmaceuticals. Call (888) 554-2030 for a free and confidential consultation. Offices in Miami and Washington, D.C.

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