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Rosas v. BASF Corp. B257127 2015 DJDAR 5570 (2nd Dist.)

Where employee relies on doctors’ assurances and is not reasonably aware of the cause of his injury, toxic tort claims not barred by statute of limitations.

Ismael Rosas was an employee at Gold Coast Ingredients Inc., a company that manufactured and sold food flavoring products. He experienced health problems after he began working with various powders and liquid chemicals, including diacetyl. In 2003, he was hospitalized for symptoms of pneumonia. In 2005, Rosas was diagnosed with severe obstructive lung disease. His two treating physicians told him that chemical exposure might be aggravating his disease but that it was not the cause of it. In November 2006, a doctor from the National Institute for Occupational Safety and Health told Rosas that he had bronchiolitis obliterans, caused by diacetyl. Rosas sued Gold Coast and others in 2008. The court granted defendants’ summary judgment motion, finding Rosas’ action barred by the statute of limitations.

Reversed and remanded. Under prong two of the California Code of Civil Procedure Section 340.8, a plaintiff in a toxic tort action must file a complaint within “two years after the plaintiff becomes aware of, or reasonably should have become aware of . . .the physical cause of an injury.” Here, it is reasonable for a patient with no information about potential wrongdoing to rely on a physician’s assurance that the chemical exposure was aggravating but not causing the underlying disease and to assume that chemicals used to make food flavorings for human consumption would be safe. The court also erred in drawing inferences and construing ambiguities in favor of defendants instead of Rosas. Thus, the court erred in granting summary judgment.