AREGOOD et al v. INTERNATIONAL FLAVORS & FRAGRANCES INC. et al
ORDER granting in part and denying in part Givaudan Flavors Corporation's 455 Motion for Summary Judgment as to all Plaintiffs. (SEE ORDER). Signed by Judge Larry J. McKinney on 6/1/2017. (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
GREGORY AREGOOD, JR.,
GIVAUDAN FLAVORS CORPORATION,
ORDER ON GIVAUDAN MOTION FOR SUMMARY JUDGMENT
AS TO ALL PLAINTIFFS
Remaining Defendant Givaudan Flavors Corporation (“Givaudan”) has moved for
summary judgment on the claims brought by all Plaintiffs because (1) Plaintiffs cannot
prove that Givaudan’s conduct was the proximate cause of their injuries, rather ConAgra
failed in its duty to protect Plaintiffs, Gregory Aregood, Jr., Rick Arndt, Sandy Arndt, David
Black, Luther Daniel Cole, Rick Ellis, Rhonda Gross, Michele Hedden, Leslie Hinman,
Robert Holbrook, Kathy Howard, Michael Hudak, Marvin Jeffrey, Grace Jones, Kent
Korniak, Shirley Legrand, Stephen Lilly, Bob Maciejewski, Jr., Janalu Mckay, Randi
Nagel, Laura Riley, Sharon Smith, William Tompkins, Brian Vallee, Dave Walker,
Rebecca Yoder, Linda Zickmund (collectively, “Plaintiffs”), from harm; (2) Count II for
failure to warn is barred by Indiana’s sophisticated intermediary doctrine; (3) Count I for
strict liability and Count III for common law negligence are not viable under the Indiana
Products Liability Act (“IPLA”); and (4) Plaintiffs’ claim for punitive damages fails with
their underlying claims (the “global MSJ”).
Dkt. No. 455.
For the reasons stated
herein, the Court GRANTS in part and DENIES in part Givaudan’s global MSJ.
I. FACTUAL BACKGROUND 1
Plaintiffs provide no citations to any evidence to dispute the facts presented by
Givaudan. See generally, Dkt. No. 36. Rather, Plaintiffs set forth additional material facts
that they assert create a genuine issue for trial, or entitle them to summary judgment on
Givaudan’s learned intermediary defense. Id. at 4-21. With that proviso, the undisputed
facts and the facts in the light most favorable to the Plaintiffs follow. See Estate of Cole
v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996).
Plaintiffs worked in various capacities at a ConAgra Snack Foods Group
(“ConAgra”) microwave popcorn packaging facility located in Rensselear, Indiana (the
“Plant”). Dkt. Nos. 457 at 1. Plaintiffs allege that their exposure to butter flavors that
contained diacetyl, which were sold to ConAgra by Givaudan, caused them to develop
respiratory injuries. Id.
A. GIVAUDAN’S KNOWLEDGE REGARDING BUTTER FLAVORS
For many years Givaudan, or its predecessors-in-interest, has been a member of
the Flavor and Extract Manufacturers Association (“FEMA”), a trade association for
flavoring companies that promotes food flavorings. Dkt. No. 466 at 6. In 1985, FEMA
provided Tastemaker, Givaudan’s predecessor-in-interest, access to a service called
Flavor and Fragrance Ingredient Data Sheet (“FFIDS”) that contained information
regarding hazards of flavoring chemicals. Id. The FFIDS for diacetyl stated that upon
inhalation, diacetyl was “harmful” and “capable of producing systemic toxicity.” Id. There
To streamline this Order, unless otherwise noted, the Court cites to the ECF page
number or numbers where the relevant facts are set forth in the parties’ briefs and such
citation should be presumed to include the exhibit(s) cited therein.
is no evidence, however, that FEMA or any other organization had specifically linked
diacetyl or butter flavors to respiratory illness at this time. Dkt. No. 481 at 8.
In 1986, Givaudan was a party to two lawsuits brought by employees of
International Bakers Services (“IBS”) who alleged that they suffered from lung disease
from exposure to hundreds of flavoring chemicals at their plants. Id. at 6; Dkt. No. 481 at
7. Diacetyl was among the 46 chemicals that those plaintiffs’ experts opined combined
to cause the adverse health effects. Id. at 6; Dkt. No. 481 at 7. However, Givaudan was
dismissed from the cases prior to the IBS plaintiffs’ experts ever offering this opinion. Dkt.
No. 481 at 7.
In 1992, Tastemaker/Givaudan learned that one of its former employees, Janice
Meenach Irick, who worked at its plant near Cincinnati, Ohio, had died from chronic lung
disease. Dkt. No. 466 at 7; Dkt. No. 481 at 8-9. In fact, the County Coroner requested
Tastemaker/Givaudan. Dkt. No. 466-10. Around that same time, Tastemaker/Givaudan
became aware of cases of bronchiolitis obliterans, or other chronic lung diseases, in at
least two other workers at the same plant, Joey Wallace and Clifford Walker. Dkt. No.
466 at 7; Dkt. No. 481 at 8-9. However, the company did not know what, if anything, at
its plant was causing some of its employees to have respiratory problems, but it did start
to investigate possible causes. Dkt. No. 481 at 9.
In 1992, Tastemaker/Givaudan required its personnel to wear goggles and a full
face respirator when working with liquid diacetyl. Dkt. No. 466 at 7; Dkt. No. 466-12.
Specifically, Tastemaker/Givaudan’s Operational Procedures required:
containing diacetyl in a liquid state must be labeled respirator required . . . . Whenever
material is in any tank, lids must be closed. If ventilation (mechanical) is not connected
to tank or is unavailable, a respirator must be worn at all times while in the room.” Dkt.
No. 466-12 at 2. The procedures suggested that chemical goggles were required when
working in a room that contained powdered diacetyl or powder formed from liquid diacetyl.
By 1993 Tastemaker/Givaudan had created a task force to investigate the lung
injuries at its plant. Dkt. No. 466 at 8; Dkt. No. 481 at 9-11. Diacetyl was one of many
chemicals used at the Tastemaker/Givaudan plant that the company investigated. Dkt.
No. 466 at 8; Dkt. No. 481 at 9-11. But, at that time, there was no publicly available
toxicity data about diacetyl or information connecting diacetyl to respiratory illness. Dkt.
No. 481 at 9-11.
MSDS sheets from Tastemaker/Givaudan during the 1990s did not include
warnings regarding use of respirators when using products containing liquid diacetyl or
products that contained powdered diacetyl, such as butter flavors. Dkt. No. 466 at 8. The
MSDSes stated that in well ventilated areas, respirators were not normally required. Id.
Consistently with its internal policy regarding working with materials that contained
powdered diacetyl, the butter flavor MSDSes suggested that protective gloves and
chemical goggles should be worn. Id.
Between 1992 and 1996 at least 8 employees of Tastemaker/Givaudan were
diagnosed with bronchiolitis obliterans. Dkt. No. 466 at 9. Two of these diagnoses were
confirmed in 1994 by Dr. Stuart Brooks, an occupational medicine specialist retained by
Tastemaker/Givaudan. Id. Dr. Brooks studied the problem with Givaudan, but concluded
that none of the ingredients used at Givaudan were known to cause bronchiolitis
Dkt. no. 481 at 10-11.
Although Dr. Brooks recommended further
investigation to determine the cause and prevent other employees from suffering similar
fates, Givaudan fired him before he could perform that work. Dkt. No. 466 at 9.
Rather than contacting the National Institute for Occupational Safety and Health
(“NIOSH”) to investigate the outbreak of the disease, in 1994 Givaudan hired specialists
from the University of Cincinnati to conduct an investigation.
Id. at 9-10.
specialists included Roy McKay, a pulmonary toxicologist; James Lockey, M.D., an
occupational medicine physician; and Susan Pinney, Ph.D., an epidemiologist. Id. at 10.
Each specialist was required to sign a nondisclosure and confidentiality agreement. Id.
In his role to design and carry out a pulmonary function surveillance program,
McKay was frustrated by his inability to be frank with employees at Givaudan about the
dangers of noncompliance with his recommended respirator policy. Id. at 10-11. He
explained that he “was limited into the type of language and wording [he could] use to
describe the potential respiratory hazard that may exist.” Id. at 11. For example, an
industrial hygienist “reminded [McKay] never to say the word bronchiolitis obliterans to
any of the workers . . . .” Id. Further, copies of presentations to workers had to go through
public relations and management to ensure they were happy with them. Id. McKay also
testified that he was not free to fully describe the severity of the respiratory condition the
workers could develop if they failed to comply with the respiratory problem. Id. at 12.
McKay felt that he could have done more to protect workers if Givaudan had invested
more money into his surveillance and protection programs. Id. at 12-13. Moreover,
McKay was very frustrated that when he identified problems with respirators, or otherwise,
he was told “tell me about it but don’t put it in writing. It was just different. It was a different
way of operating . . . .” Id. at 13.
Dr. Lockey testified that he was concerned about what was happening at the
Givaudan facility and could have done more to help, but the company never asked him
to proceed further. Id. at 14; Dkt. No. 466-24 at 240-42. At the end of his study, Dr.
Lockey believed that the respiratory issues were related to exposure to acetaldehyde.
Dkt. No. 481 at 10-11. He never made a connection between diacetyl and the Givaudan
worker’s respiratory complaints. Id. at 10. If it had not been for Givaudan’s confidentiality
agreements, Dr. Lockey would have published his results. Dkt. No. 466 at 14.
In September 1995, researchers had identified several chemicals that could be
causing the respiratory issues, including bronchiolitis obliterans, one of which was
diacetyl. Dkt. No. 466 at 14; Dkt. No. 466-26.
Dr. Stuart Brooks, an occupational medicine specialist who Givaudan also hired to
help determine the cause of respiratory complaints at its plant, concluded that none of the
ingredients used at Givaudan were known to cause bronchiolitis obliterans. Dkt. No. 481
In 1997, Givaudan anonymously informed FEMA, the members-only trade
association, that employees of a member company had been diagnosed with an
undetermined respiratory illness. Dkt. No. 466 at 14; Dkt. No. 466-6 at 26-29. Apparently,
this prompted FEMA to hold a workshop in March 1997 to focus members on respiratory
safety practices. Dkt. No. 466 at 14-15; Dkt. No. 466-6 at 27-28; Dkt. No. 466-28. The
invitation to the workshop warned that: “Exposure to respiratory irritants without proper
safety procedures may cause severe permanent injury.” Dkt. No. 466 at 15. At the
workshop, Cecile Rose, M.D., an occupation medicine physician and John Martyny, a
certified industrial hygienist, both from National Jewish Health Center, educated the
attendees on lung function, occupational lung disease (including bronchiolitis obliterans),
and causes of lung disease including irritant chemicals; diacetyl was not amongst them.
Dkt. No. 466 at 15; Dkt. No. 466-30. The materials included NIOSH’s Health Hazard
Evaluation. 2 Dkt. No. 466-30.
Givaudan believed that confidentiality regarding its formulas and any potential
respiratory issue at its plants was necessary because it “did not want to give [its]
competitors some information that they could use to make noises about, you know, our
facility possibly being an unreliable source of supply, give them a competitive advantage
. . . it might hurt [its] reputation.” Dkt. No. 466 at 23.
During the period between 1994 and 2000, Tastemaker, then Givaudan, 3 sold
hundreds of thousands of pounds of butter flavors to ConAgra’s Marion, Ohio, plant. Dkt.
No. 466 at 15-16. Givaudan’s salesperson for ConAgra, Peter Angelo, testified that he
was unaware that workers in one of the butter flavor plants had been diagnosed with
bronchiolitis obliterans in the early 1990s. Id. at 16. Further, he was unaware that the
company initiated an investigation into lung disease at the plan, that an outbreak of
disease among workers at the plant had been suspected, or that pulmonary function
testing had been performed on Givaudan’s employees at the plant. Id. Angelo stated
that he was unaware of any danger associated with diacetyl or using butter flavors that
Plaintiffs claim that this attachment discusses findings at an IBS facility. Dkt. No. 466
at 15. However, the Court has no way to evaluate that statement because the NIOSH
materials were not included with Plaintiffs’ exhibit. See Dkt. No. 466-30.
3 Tastemaker was sold to Givaduan in 1997. Dkt. No. 466 at 15.
contained diacetyl without ventilation. Id. Angelo claimed that he was the only way for
ConAgra to know this information, other than through an MSDS. Id.
During the period between October 2001 and December 2003, Givaudan sold
nearly 41,000 pounds of butter flavors to the Plant. Dkt. No. 466 at 19. During this period
Givaudan made only one change to its MSDS for butter flavors; it still warned that
inhalation would cause “[i]rritation of throat & lungs.” Id. at 19-20. The MSDS that
accompanied shipments in or after July 2003, also stated, “In well ventilated areas
respiratory protection is not normally required. In confined or poorly ventilated areas or if
material is toxic by inhalation, the use of approved respiratory protection is
recommended.” Dkt. No. 466-41 at 4. “Ventilation meeting acceptable standards [was]
recommended.” Id. For spills or leaks of the butter flavor, the 2003 MSDS recommended
use “of ‘NIOSH’ approved respiratory protection . . . .” Id. Further, the 2003 MSDS
specifically stated that “good industrial hygiene practices should be followed in order to
avoid inhalation and contact with skin and eyes.” Id. at 5.
From 2005 to 2007, during which Givaudan sold over 100,000 pounds of butter
flavors to ConAgra, Givaudan’s MSDS sheets made similar statements. See Dkt. No. 466
at 20-21. Plaintiffs contend that Givaudan’s policy to refuse to disclose the chemical
formula for its butter flavors made it impossible to discover any relevant exposure limits.
B. CONAGRA’S KNOWLEDGE REGARDING BUTTER FLAVORS
Givaudan’s predecessor company, Tastemaker, began selling butter flavors to
ConAgra’s plant in Marion, Ohio, in 1993. Dkt. No. 466 at 4-5.
ConAgra has been making and selling microwave popcorn since approximately
1978 through its predecessor Golden Valley Microwave Foods; it is considered a leader
in the industry. Dkt. No. 457 at 5. In the early 1990s, ConAgra also owned Hunt-Wesson,
which sold the Orville Redenbacher brand of microwavable popcorn. Id.
ConAgra has known since the early 1990s that the butter flavors it purchased
contained the chemical diacetyl and that diacetyl is a volatile organic compound. Id. It
has also known that butter flavors it used contained other volatile organic compounds.
Id. Further, ConAgra knew at this time that ingredients in butter flavors were capable of
irritating the respiratory tract, even seemingly innocuous substances like salt. Id.
When it developed products, ConAgra sometimes worked directly with butter flavor
suppliers including Givaudan and its predecessor, Tastemaker; Hunt-Wesson; and Bush
Boake Allen Americas. Id. at 5-6. In fact, ConAgra admits that it worked closely with
Tastemaker and then Givaudan to develop butter flavors for use in its products. Id. at 6.
More importantly, ConAgra knew that the butter flavors it purchased from Tastemaker
and later Givaudan, and other suppliers, contained diacetyl because ConAgra’s scientists
regularly communicated with the suppliers about the amount of diacetyl in the flavors. Id.
Although not diacetyl focused, in the early 1990s, ConAgra studied the volatile
organic compounds released from microwave popcorn.
It published an article
regarding the subject in 1991. Id.
In addition to its own microwave popcorn business, ConAgra also knew about the
ingredients of butter flavors because it owned Armour Food Ingredients (“Armour”), which
made and sold the products. Id. ConAgra knew that Armour’s butter flavors contained
diacetyl at a concentration of 48,000 parts per million and ran a trial for one of Armour’s
products in late 1990. Id. at 6-7. At that time, ConAgra would have received a Material
Safety Data Sheet (“MSDS”) regarding the product that contained information about
health hazards and risks related to butter flavors. Id. at 7.
ConAgra had an extensive industrial hygiene program that included procedures
for dealing with chemical hazards such as risk assessment, monitoring prioritization,
health hazard assessment, air sampling, record keeping, employee notification
requirements and specific industrial hygiene responsibilities for management and
employees. Id. at 7. ConAgra employs a number of people to manage safety in its plants
including a Director of Health and Safety for the Snack Foods Division, who has
responsibility for all of its popcorn facilities.
Further, each plant has a safety
coordinator with responsibilities specific to that plant and who meet regularly with their
peers to discuss safety and health issues at the plants. Id. Moreover, ConAgra regularly
provides safety training for its employees. Id. Safety materials, including MSDSes, were
posted in a specific area of ConAgra’s plants and it trained employees on where to find
the information. Id. The safety supervisor at each plant was responsible for maintaining
and updating MSDSes. Id. at 8. Safety personnel reviewed the information in the
MSDSes and used the information in them to develop plant safety procedures and to
determine whether and what safety precautions to implement to protect ConAgra
employees working with materials such as butter flavors. Id. There is no dispute that
ConAgra received MSDSes from its butter flavor suppliers over the years. Id. In addition
to MSDSes, ConAgra’s safety information included other information about hazardous
materials and the use of personal protective equipment. Id. at 7.
Between 1994 and 2001, the MSDSes ConAgra received regarding butter flavors
advised that the materials could be a respiratory irritant and that respiratory protection
should be worn when working with them, particularly when the vapor concentration was
high due to heat or in confined, poorly-ventilated areas. Id. at 8. At least two of the
MSDSes ConAgra received regarding butter flavors advised to avoid inhalation. Id.
Plaintiffs assert that the MSDSes were inadequate for several reasons. Dkt. No.
466 at 16-17. Specifically, because they failed to suggest that a respirator be worn when
using butter flavors; they only warned of “irritation” and stated that “in well ventilated areas
respiratory protection is not required;” and they failed to list diacetyl as an ingredient,
citing trade secrets. Dkt. No. 466 at 16-17.
Jack McKeon, President of ConAgra’s Snack Food Division, testified that it
believed that butter flavors were safe for use by its workers. Dkt. No. 466 at 5-6. McKeon
stated that the information from ConAgra’s suppliers, including MSDSes, was the best
information available at the time. Id.
The ConAgra Plant where Plaintiffs worked began using butter flavors from
Givaudan in 2001. Id. at 4.
In the fall of 2001, management at ConAgra, including those responsible for the
plant in Rensselear, learned about a potential association between butter flavors that
contained diacetyl and bronchiolitis obliterans. Id. at 9. Those managers included:
McKeon; Mike Bley, then-vice president of Operations of ConAgra’s Snack Foods
Division; James Montealegre, then-vice president of Procurement, Product Development,
Graphics and Legal Services; and Wayne Waite, then-supervisor of Safety and Health.
Id. at 9 n.12.
Specifically, in September 2001, the NIOSH contacted ConAgra for its help in an
investigation into the potential relationship between butter flavors and bronchiolitis
obliterans. Dkt. No. 457 at 11-12. NIOSH asked if it could inspect ConAgra’s popcorn
plant in Hamburg, Iowa. Id. at 11-12. NIOSH conducted a site visit and conducted air
sampling at that plant in November 2001. Id. at 12.
In addition to ConAgra’s direct involvement with NIOSH, the company was aware
of the potential health issues related to butter flavors from another source. On October
3, 2001, the Wall Street Journal published an article entitled “Butter Flavoring May Pose
a Risk to Food Workers” (“Wall Street Journal Article”). Id. at 9. The article discussed
incidents of “serious lung ailments” in two dozen workers at the Glister-Mary Lee (“GML”)
popcorn plant in Jasper, Missouri, which were allegedly caused by exposure to butter
flavors. Id. The article reported that the NIOSH had alerted health departments to start
working with popcorn plants “to limit workers’ exposure to components in artificial butter
flavorings.” Id. Moreover, the article identified diacetyl, the chemical that provides the
butter smell and taste, as an ingredient to be addressed. Id.
That same day, McKeon sent an email memorandum to all ConAgra employees
that referenced the Wall Street Journal article and explained that, at NIOSH’s request,
ConAgra had agreed to participate in NIOSH’s ongoing study. Id. at 9-10. McKeon
testified that he sent that memo to provide employees with the information that ConAgra
was aware of the story and that ConAgra’s position was that its plants “were fine” and
ConAgra would “cooperate in any way [it was] asked to cooperate . . . .” Dkt. No. 458-1
at 4 (McKeon Dep. at 15). The announcement reassured employees that ConAgra’s
microwave popcorn was “completely safe to manufacture and consume.”
Id. at 6
(McKeon Dep. Ex. 2). It also distinguished the process used at the plant discussed in the
Wall Street Journal Article from that at the Plant, particularly with respect to the “slurry
production.” Id. Further, the announcement stated, “There is adequate ventilation in each
[of our] facilit[ies] to insure that the air in the facility is exhausted several times an hour.
In the facilities where slurry production is in a contained room, there is a separate
continuous air ventilation system for that room.” Id. The email also informed employees
that ConAgra had agreed to participate in NIOSH’s ongoing study of the matter. Id.
Moreover, ConAgra belongs to a trade association of popcorn producers called the
Popcorn Board. Dkt. No. 457 at 10. In October 2001, the same month the Wall Street
Journal Article was published, the Popcorn Board created a Worker Safety Ad Hoc
Committee, which included representatives from ConAgra. Id. On October 10, 2001, the
Worker Safety Ad Hoc Committee met to discuss the issue of bronchiolitis obliterans and
butter flavors. Id. Montealegre and Bley attended the meeting. Id. At the meeting,
representatives from NIOSH presented a report on their investigation into lung disease
and diacetyl use at the GML, Jasper plant. Id. ConAgra learned that NIOSH had
inspected the Jasper plant and had begun an inspection at a popcorn plant in Nebraska.
Id. The NIOSH representatives specifically discussed their investigation results including
the potential association between butter flavors and lung disease. Id.
After this presentation, the Popcorn Board decided to prepare tip sheets for the
industry related to this issue and to pursue testing from private sector vendors to compare
and evaluate the NIOSH findings. Id. at 11. In a conversation with another Popcorn
Board member, Montealegre stated that ConAgra agreed that “the cat is out of the bag”
and it was in the best interests of the industry to work with the Popcorn Board on these
The Popcorn Board prepared the “tip sheets” and later in October 2001 provided
drafts to ConAgra and other members of the Worker Safety Ad Hoc Committee. Id. The
drafts recommended mandatory personal protective equipment for mixing room
associates, including respirators that had an organic vapor and high-efficiency particulate
filter. Id. There was also a tip sheet that recommended ventilation in popcorn plants to
protect workers from exposure to butter flavors. Id.
In November 2001, the Popcorn Board distributed a copy of a workbook published
by the Flavoring Extract Manufacturers Association (“FEMA”) entitled, “Respiratory Safety
in the Flavor and Fragrance Workplace.” Id. ConAgra received that workbook. Id.
On November 13, 2002, McKeon prepared another memorandum to all employees
that discussed NIOSH’s conclusions regarding issues of worker safety at the Glister-Mary
Lee plant. Dkt. No. 466 at 17-18; Dkt. No. 466-35 at 2. In the November 2002 memo,
McKeon stressed the differences between the mixing room set up at GML versus that at
the Plant. Dkt. No. 466-35 at 2. He reassured the employees “that [its] microwave
popcorn is completely safe to manufacture, prepare, and consume.” Id. He reported
further that federal health officials said “that there is no evidence that microwave popcorn
poses any risk to consumers.” Id. In addition, McKeon stated that ConAgra’s “microwave
popcorn uses only raw materials that are approved for human consumption by the Food
and Drug Administration (FDA).” Id. He also reiterated that ConAgra’s processes were
regulated by several state and federal agencies. Id.
On December 13, 2002, McKeon prepared another memorandum to all employees
that detailed NIOSH’s investigation of airborne diacetyl levels and the health of ConAgra
employees at several ConAgra facilities. Dkt. No. 466-35. The December 2002 memo
explained how the GML, Jasper, Missouri, process was much different from that used at
ConAgra’s plants. Id. at 2. It also reiterated that the raw materials ConAgra used were
approved for human consumption by the FDA, and that its processes were regulated by
state and federal agencies. Id. McKeon’s December 2002 memo touted that tests
performed in its plants for diacetyl, as well as other airborne materials, indicated levels
below the Occupational Safety and Health Administration (“OSHA”) permissible exposure
The December 2002 memorandum further advised that ConAgra was
“developing procedures for annual spirometry testing (breathing test) for all employees
as part of [its] overall comprehensive safety program.” Id. at 3.
Early in 2003, McKeon again reassured employees at the Marion, Ohio, plant that
ConAgra was cooperating with NIOSH to study the health and safety of popcorn workers
in the industry. Dkt. No. 466 at 18; Dkt. No. 466-36 at 2-3. In a memorandum to all
Marion employees dated January 28, 2003, McKeon again explained that, in contrast to
the open system used at the popcorn facility NIOSH studied in Missouri, ConAgra used
a “food-quality closed system, proper ventilation and an isolated mixing process.” Dkt.
No. 466-36 at 2. McKeon further restated that air quality test results for dust exposure at
all of ConAgra’s facilities were better than what OSHA found acceptable. Id.
the results of tests performed at Marion by an independent laboratory alongside those of
NIOSH were “superior to those of the Missouri plant, both in the mixing room and on the
Id. at 2-3. McKeon reported that there were no confirmed cases of
bronchial issues caused by flavorings at ConAgra; but it developed a plan to test and
monitor lung capacity to calm any concerns. Id. at 3. He advised the Marion workers that
details about the plan would be forthcoming, then reminded them that if they wanted a
respirator, they could request one. Id. McKeon also stated that the company continued
to evaluate “whether or not to make respirator use mandatory in the mixing room,” and
they would continue to work with NIOSH, too. Id. He concluded, “We’re always looking
for ways to improve your safety at work, and for that reason, you should anticipate
changes – now and going forward.” Id.
By 2005 ConAgra was working with the University of Cincinnati, Occupational &
Environmental Medicine Department, to perform spirometry testing for its employees in
Marion, Ohio. Dkt. No. 466 at 18-19; Dkt. No. 466-37 at 2. Talking points for a meeting
with employees dated January 2005, suggest that ConAgra had already adopted
recommendations from NIOSH, including the use of a different protocol for spirometry
testing. Dkt. No. 466-37 at 2. The talking points further stated that NIOSH had issued a
final report on its findings for the Marion plant and there was “no real ‘new’ news or new
NIOSH opinions in [the] report.” Id. at 3. In addition, the message stated that “neither the
company nor NIOSH ha[d] determined that the plan [was] unsafe. In fact, [ConAgra] [took]
precautions in the manufacturing process to ensure the safety of [its] employees.” Id.
Management at ConAgra was “confident that [the] popcorn manufacturing plants are safe
workplaces, and that microwave popcorn is completely safe to manufacture and
consume.” Id. The talking points also stated that if there was confirmation of a suspected
case of an employee with bronchiolitis obliterans, there was “no evidence to suggest that
the disease is a result of employment at [the] plant.” Id. at 4. With respect to lawsuits
filed by workers in Missouri against International Flavors and Fragrances, the ConAgra
talking points stated, “I can tell you we strictly follow ingredient manufacturers’ instructions
for handling and use of all ingredients.” Id. at 5.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers
v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary
judgment are governed by Federal Rule of Civil Procedure 56, which provides in relevant
part: “The Court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).
Once a party has made a properly-supported motion for summary judgment, the
opposing party may not simply rest upon the pleadings but must instead submit
evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed.
R. Civ. P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, (1986). The nonmoving party
bears the burden of demonstrating that such a genuine issue of material fact
exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty
of the Court to scour the record in search of evidence to defeat a motion for summary
judgment; rather, the nonmoving party bears the responsibility of identifying applicable
evidence. See Bombard v. Ft. Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.
In evaluating a motion for summary judgment, the Court should draw all
reasonable inferences from undisputed facts in favor of the nonmoving party and should
view the disputed evidence in the light most favorable to the nonmoving party. See Estate
of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual
dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that
might affect the outcome of the suit in light of the substantive law will preclude summary
judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94
F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). If the moving party does not have the ultimate burden of proof on a claim, it is
sufficient for the moving party to direct the Court to the lack of evidence as to an element
of that claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n. 3 (7th Cir. 1994).
“If the nonmoving party fails to establish the existence of an element essential to his case,
one on which he would bear the burden of proof at trial, summary judgment must be
granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir.
Plaintiffs assert four substantive claims: (1) strict liability for providing a product in
a defective condition because it was more dangerous than an ordinary consumer would
expect it to be when it was used as it was intended to be used; (2) failure to warn regarding
the propensity of butter flavor to cause severe respiratory disease; (3) common law
negligence; and (4) defective product design because the products were more dangerous
than an ordinary consumer would expect when it was used as it was intended to be used.
Plaintiffs also assert that Givaudan acted intentionally, with malice, aggravated or
egregious fraud, oppression, or insult, and with a conscious disregard for their safety,
which entitles them to punitive damages. See, generally, Compl. Givaudan has moved
for summary judgment as to each of Plaintiffs’ claims.
A. COUNT I – STRICT LIABILITY DEFECTIVE CONDITION
With respect to Count I, for strict liability, there is no dispute that to state a claim
for strict liability for a defective condition under the Indiana Product Liability Act (“IPLA”),
a plaintiff must allege that the product was defectively manufactured or prepared. Ind.
Code § 34-20-2-2; Hathaway v. Cintas Corporate Servs., Inc., 903 F. Supp. 2d 669, 67374 (N.D. Ind. 2012) (stating that “[a] product contains a manufacturing defect when it
deviates from its intended design” (quoting Westchester Fire Ins. Co. v. Am. Wood Fibers,
Inc., No. 2:03-cv-178-TS, 2006 WL 3147710, at *5 (N.D. Ind. Oct. 31, 2006))). Plaintiffs
here make no such argument; rather they argue that the product was unreasonably
dangerous to the user or consumer because Plaintiffs were unaware that exposure to the
product could cause them injury. Compl. ¶¶ 18 -23. In fact, in Count 1 of the Complaint
Plaintiffs plead that the defective condition was the failure to warn of the unreasonably
dangerous condition. Id. ¶ 23. There can be no dispute that there is no strict liability for
either defective design or failure to warn claims in Indiana. Ind. Code § 34-20-2-2; Weigle
v. SPX Corp., 729 F.3d 724, 737 (7th Cir. 2013) (discussing the 1995 amendments to the
IPLA and Ind. Code § 34-20-2-2). For these reasons, Givaudan is entitled to summary
judgment on Count I for strict liability in tort for a defective condition/manufacture.
B. COUNT III – COMMON LAW NEGLIGENCE
With respect to Count III, for common law negligence, the Court concludes that
Plaintiffs’ negligence claim is subsumed by the IPLA. Citing Thiele v. Faygo Beverage,
Inc., 489 N.E.2d 562 (Ind. Ct. App. 1986); and Keen v. Nestle Waters North America, Inc.,
Cause No. 1:10-cv-01075-LJM-TAB, 2012 WL 1365444 (S.D. Ind. Apr. 19, 2012);
Plaintiffs argue that they are not a “user or consumer” under the IPLA because the product
was sold to their employer. Dkt. No. 466 at 32-34. Plaintiffs’ reliance on Thiele and Keen
is misplaced because in those cases the plaintiffs were employees of middle-men, or
distributors, of products to consumers, to which the courts of Indiana have concluded the
IPLA does not apply. See Estate of Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275,
278 (Ind. 1999) (stating that “’user or consumer’ [in the IPLA] does not include one who
merely acquires and resells”); Thiele, 489 N.E.2d at 588 (concluding that the IPLA does
not include employees of “intermediaries in the distributive chain”); Keen, 2012 WL
1365444 at *5 (stating that the parties agreed that the case was governed by Indiana
common law not the IPLA). Further, in this case, Plaintiffs’ employer, ConAgra, was the
first user of the product because it took the product in bulk form and mixed it with other
products to produce microwavable popcorn, which triggered protection for ConAgra’s
employees under the IPLA. See Ferguson v. Modern Farm Sys., Inc., 555 N.E.2d 1379,
1386 (Ind. Ct. App. 1990) (stating that a company that consumes a product is a consumer
under the IPLA); Thiele, 489 N.E.2d at 584-88 (discussing the class of “users and
consumers” to which the Indiana legislature intended the IPLA to apply, including
employees of a consuming employer). For these reasons, summary judgment in favor of
Givaudan on Count III is appropriate.
C. COUNT II – FAILURE TO WARN
With respect to Count II, for failure to warn, Plaintiffs argue that Givaudan
purposefully failed to warn them about the dangers of butter flavors when it withheld
information on its MSDSes regarding permanent lung damage that could occur if they did
not use full-face respirators. Givaudan asserts that it is entitled to summary judgment on
this claim because it reasonably relied upon ConAgra to protect its employees from any
dangers associated with butter flavors used in ConAgra’s plants. The Court agrees with
Givaudan that the sophisticated intermediary doctrine applies in this case and that it is
entitled to summary judgment on this claim.
In Indiana, a manufacturer has “a duty to warn reasonably foreseeable users of all
‘latent danger[s] inherent in the product’s use.’” First Nat’l Bank & Trust Corp. v. Am.
Eurocopter Corp., 378 F.3d 682, 690 (7th Cir. 2004) (quoting Taylor v. Monsanto Co., 150
F.3d 806, 808 (7th Cir. 1998)). A breach of this duty occurs when a manufacturer “fails
to: (1) properly package or label the product to give reasonable warnings of danger about
the product; or (2) give reasonably complete instructions on proper use of the product.”
Ind. Code § 34-2-4-2.
Although the duty to warn is non-delegable, Indiana has
established an exception to this general rule called the sophisticated intermediary
doctrine. See Am. Eurocopter, 378 F.3d at 691; Hathaway v. Cintas Corp. Servs., Inc.,
903 F. Supp. 26 669, 676 (N.D. Ind. 2012) (citing Nat’l Gas Odorizing, Inc. v. Downs, 685
N.E.2d 155, 163 (Ind. Ct. App. 1997)). This doctrine is applicable if “(1) the product is
sold to an intermediary with knowledge or sophistication equal to that of the manufacturer;
(2) the manufacturer adequately warns the intermediary; and (3) the manufacturer can
reasonably rely on the intermediary to warn the ultimate consumer.” Am. Eurocopter, 378
F.3d at 691 (citation omitted). “Reliance is only reasonable if the intermediary knows or
should know of the product’s dangers.” Downs, 685 N.E.2d at 164. Further, “[a]ctual or
constructive knowledge may arise where either the supplier had provided adequate
explicit warning of such dangers or information of the product’s dangers is available in the
public domain.” Id. In making an analysis under the sophisticated intermediary doctrine,
the Court should also consider the following factors:
[T]he likelihood or unlikelihood that harm will occur if the [intermediary] does
not pass on the warning to the ultimate user, the  nature of the probable
harm, the probability or improbability that the particular [intermediary] will
not pass on the warning and the ease or burden of the giving of the warning
by the manufacturer to the ultimate user.
Id. at 163 (quoting Dole Food v. N.C. Foam Indus. Inc., 935 P.2d 876, 880 (Ariz. Ct. App.
1996), further citation omitted).
See also Am. Eurocopters, 378 N.E.3d at 691-92;
Hathaway, 903 F. Supp. 2d at 676. Although the question of whether a manufacturer has
discharged its duty under the sophisticated intermediary doctrine is almost always one
for a jury, summary judgment may be appropriate as a matter of law. See, e.g., Am.
Eurocopters, 378 N.E.3d at 692; Taylor, 150 F.3d at 808-09; Hathaway, 903 F. Supp. 2d
at 677; York v. Union Carbide Corp., 586 N.E.2d 861, 872 (Ind. Ct. App. 1992).
In this case, summary judgment is appropriate under the sophisticated
intermediary doctrine because Plaintiffs’ articulation of the evidence of Givaudan’s
knowledge stretches too far from facts presented in the relevant documents. The fact is
that neither Givaudan, nor its hired professionals, nor its trade association discovered any
connection between respiratory problems at flavoring plants and diacetyl in the 1990s.
Plaintiffs’ evidence shows that Givaudan researched the cause of Ms. Irick’s problems,
and the other individuals who were diagnosed with lung diseases in the 1990s, and had
identified diacetyl as a potential problem, but none of the work it or its researchers
performed in that decade revealed any specific cause for its employees’ health issues.
Dkt. No. 481 at 8-11; Dkt. No. 466 at 10-14; Dkt. No. 466-26. Plaintiffs make much of the
1997 FEMA meeting, which discussed a broad range of potential lung diseases, but none
of the materials from that meeting make any connection between diacetyl and lung
ailments. Dkt. No. 466 at 15; Dkt. No. 466-30. Further, despite Plaintiffs’ characterization
of the Givaudan internal policies regarding handling diacetyl otherwise, the evidence
shows that Givaudan’s procedures were related to the use of straight liquid diacetyl
without other additives. Dkt. No. 466 at 7; Dkt. No. 466-12. Givaudan’s own procedures
for handling mixtures of the material with other products or using powder formed from
straight liquid diacetyl were no different than those it recommended for handling the
mixtures it sold as butter flavors to ConAgra. Compare Dkt. No. 466-12 to Dkt. No. 466
at 8 (stating that in well ventilated areas, respirators were not normally required; and that
gloves and chemical goggles should be worn when working around powdered butter
flavors). In other words, there is no evidence to support Plaintiffs’ assertion that Givaudan
withheld known safety information from ConAgra.
Moreover, the undisputed evidence shows that ConAgra knew as much if not more
than Givaudan with respect to the danger of butter flavors as they were used in the Plant
where Plaintiffs worked. ConAgra has been manufacturing microwave popcorn and using
butter flavors since the late 1970s; and in the early 1990s, ConAgra produced and sold
the Orville Redenbacher brand of microwave popcorn. Dkt. No. 457 at 5. It has known
that butter flavors contained diacetyl, as well as other volatile organic compounds, since
the early 1990s. Id. More importantly, ConAgra knew at this time that ingredients in
butter flavors were capable of irritating the respiratory tract. Id. In the early 1990s
ConAgra even performed its own study of the volatile organic compounds released during
the microwave process. Id. at 6. There is also no dispute that ConAgra worked with
butter flavor manufacturers on formulations for its products and knew that the flavors
contained diacetyl because ConAgra scientists regularly communicated with suppliers
regarding the amount of diacetyl in them. Id. Further, ConAgra managers at the Plant
knew that one of its own subsidiaries, Armour, sold butter flavors that contained diacetyl
at a concentration of 48,000 parts per million. Id. at 6-7.
ConAgra, a large sophisticated company, also had its own occupational health
department, which was responsible for the health and safety of its workers. Id. at 7. In
addition to the MSDSes from its suppliers, ConAgra’s industrial hygiene program drew
from other sources. Id. at 7-8.
It is undisputed that in October 2001, at least two of the top four managers at
ConAgra learned more about the NIOSH investigation of lung disease at the GML
microwave popcorn facility in Jasper, Missouri, through meetings of an ad hoc committee
of the Popcorn Board. Dkt. No. 457 at 10. The NIOSH investigation focused on the
purported link between diacetyl exposure and lung disease. Id. ConAgra acknowledged
at that time that “the cat is out of the bag” with respect to health issues and butter flavors.
Id.at 11. In fact, ConAgra managers with responsibility for the Plant were part of the ad
hoc working group that attempted to develop best practices tip sheets regarding
microwave popcorn worker safety. Id. ConAgra also received a copy of the FEMA
workbook entitled “Respiratory Safety in the Flavor and Fragrance Workplace.” Id. There
can be no dispute that ConAgra was well-versed on the issues related to butter flavors
and worker health.
The fact that ConAgra’s managers at the Plant stressed the differences between
its processes and that at GML is not evidence that they did not believe there was a
problem with butter flavors. Dkt. No. 466 at 17-18; Dkt. No. 466-35 at 2; Dkt. No. 438 at
4-5; Dkt. No. 466-36 at 2-3. Rather, the only reasonable inference is that ConAgra knew
it had responsibility for providing a safe environment and had assessed that the system
at its plants complied with current best practices. There can be no dispute that ConAgra
had its own information regarding the health hazards of butter flavors at its plants. In
2001, NIOSH investigated ConAgra’s Hamburg, Iowa, plant. Dkt. No. 457 at 11-12. In
2002, NIOSH began an evaluation of the health hazards at ConAgra’s microwave
popcorn facility in Marion, Ohio. Dkt. No. 466-36 (McKeon memo discussing NIOSH and
independent air samplings studies at Marion).
ConAgra’s memos to its employees
expressly referenced NIOSH’s failure to find anything of significance at its plants with
respect to levels of diacetyl and other potentially threatening chemicals. Dkt. Nos. 46635 & 466-36. Again, the only reasonable inference is that ConAgra was well aware of the
alleged threat to its employees’ health from butter flavors and was taking steps to protect
them from harm consistent with industry standards that were not set by Givaudan, but by
the entire industry as well as state and local agencies. Under these circumstances, a
reasonable jury could only conclude that ConAgra was a sophisticated intermediary that
was as knowledgeable as Givaudan about the potential health hazards of butter flavors
and upon which Givaudan could reasonably rely to protect workers at the Plant. For these
reasons, the Court concludes that summary judgment in favor of Givaudan on Count II of
D. COUNT IV – DESIGN DEFECT
Although there are other elements to a design defect claim, the analysis for
Givaudan’s motion for summary judgment on Plaintiffs’ claim that Givaudan’s butter
flavors were defectively designed turns on application of the doctrine of intervening or
superseding causation. Similarly to its argument regarding the learned intermediary
doctrine, Givaudan argues that ConAgra’s actual knowledge of an association between
diacetyl in butter flavors and lung diseases, and its complete control over its safety
protocols to mitigate its workers’ exposure to potentially hazardous substances, breaks
the causal chain between Givaudan’s alleged defective design and Plaintiffs’ alleged
injuries. Plaintiffs rely exclusively upon their argument that Givaudan’s knowledge of the
dangers of diacetyl in butter flavors was greater than that of ConAgra to assert that
Givaudan caused them harm. In fact, even in the Complaint, Plaintiffs claim that part of
the defective design is an inadequate warning. Dkt. No. 1-1, ¶ 65. To the extent that
Plaintiffs rely on a failure to warn theory, the Court’s analysis on application of the doctrine
of a sophisticated intermediary applies. With respect to defective design of the butter
flavors themselves, neither party adequately addresses Indiana’s superseding causation
doctrine, which is focused on whether “the harm resulting from the intervening act could
not have been reasonably foreseen by the original negligent actor.” Hooks SuperX Inc.
v. McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994). See also Control Technologies, Inc. v.
Johnson, 762 N.E.2d 104, 107 (Ind. 2002). As the Hooks SuperX court explained further,
“if harm is a natural, probable, and foreseeable consequence of the first negligent act or
omission, the original wrongdoer may be held liable even though other independent
agencies intervene between [its] negligence and the ultimate result.” Hooks SuperX, 642
N.E.2d at 520 (quoting 21 I.L.E. Negligence § 67, at 330-333 (1959)). “[B]ut if the new
independent intervening force was not reasonably foreseeable at the time of the actor’s
wrongful conduct, the consequences ordinarily, are not caused by the original wrongful
act.” Id. (quoting 21 I.L.E. Negligence § 67, at 330-333).
Applying this rule to the facts presented regarding Plaintiffs’ design defect claim,
the Court cannot conclude as a matter of law that ConAgra’s worker safety policy at the
Plant was an unforeseeable independent intervening force such that it could be
considered a superseding cause. This is not a question of whether or not ConAgra was
a learned intermediary because that defense does not apply to design defects; it is a
question of whether or not ConAgra’s use of the butter flavors and its worker protection
program were unforeseeable by Givaudan. The latter question is not answered by the
facts presented; therefore, summary judgment on Plaintiffs’ design defect claim on this
ground must be denied. In making this ruling the Court makes no conclusion with respect
to Plaintiffs’ evidence to support other elements of a design defect claim.
For the reasons stated herein, Defendant Givaudan Flavors Corporation’s
Motion for Summary Judgment as to all Plaintiffs’ claims, Dkt. No. 455, is GRANTED
in part and DENIED in part.
IT IS SO ORDERED this 1st day of June, 2017.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
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