Stults et al v. International Flavors and Fragrances, Inc et al---SEE #274 AND #285 ORDERS AND #4, #111, #112, #124, #128, #289 DISMISSALS WHEN FINAL JUDGMENT ENTERED;

Filing 274

MEMORANDUM OPINION AND ORDER Regarding Defendants' Motions for Summary Judgment: Granting 146 Motion for Partial Summary Judgment: Granting 154 Motion for Partial Summary Judgment: Denying as Moot 156 Motion for Partial Summary Judgment: Denying as Moot 161 Motion for Summary Judgment: Judgment shall enter accordingly: See text of Order for further information. Signed by Judge Mark W Bennett on 12/24/13. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DAVID STULTS and BARBARA
STULTS,
No. C 11-4077-MWB
Plaintiffs,
vs.
SYMRISE, INC., BUSH BOAKE
ALLEN, INC., INTERNATIONAL
FLAVORS & FRAGRANCES, and
SENSIENT, L.L.C.,

MEMORANDUM OPINION AND
ORDER REGARDING DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT

Defendants.
___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION AND BACKGROUND .............................................. 3 
A. 
Factual Background ............................................................... 3 
1. 
The parties and principal actors ......................................... 3 
2. 
David’s consumption of microwave popcorn .......................... 6 
3. 
David’s medical background and diagnosis ........................... 8 
4. 
Popcorn and flavorings industries’ activities .......................... 9 
a. 
1986 International Bakers plant study ......................... 9 
b. 
Bronchiolitis obliterans at Givaudan plant .................... 9 
c. 
FEMA and its 1997 conference ............................... 10 
d. 
General Mills’s skin irritation problems ..................... 13 
e. 
NIOSH’s investigation of Jasper plant ...................... 14 
f. 
NIOSH’s investigation at American Pop Corn ............. 17 
g. 
Wall Street Journal article and its fallout ................... 18 
h. 
Jasper plant litigation ........................................... 19 
i. 
NIOSH’s investigation at ConAgra ........................... 21 
j. 
Miscellaneous events in 2002 .................................. 21 
k. 
The Flavoring Defendants’ product testing
and warnings ..................................................... 22 
l. 
The 2007 Rosati study ........................................... 24 

B. 

m.  Miscellaneous events in 2008 .................................. 25 
5. 
Diacetyl free butter flavorings alternatives .......................... 26 
6. 
Dr. David Egilman ....................................................... 27 
Procedural Background ......................................................... 28 

II. 

LEGAL ANALYSIS ...................................................................... 30 
A. 
Summary Judgment Standards ................................................. 30 
B. 
Choice Of Law .................................................................... 32 
1. 
Is there a “true conflict” of laws? .................................... 33 
2. 
Choice of law rules ...................................................... 34 
3. 
The § 145(2) “contacts” ................................................ 38 
a. 
Place where injury occurred ................................... 38 
b. 
The place where the conduct causing the
injury occurred ................................................... 39 
c. 
Place of domicile, residence, incorporation,
or business ........................................................ 40 
d. 
Place where the relationship was centered .................. 41 
e. 
Summary of the § 145(2) “contacts” ......................... 42 
4. 
The § 6 Factors ........................................................... 42 
a. 
Needs of the interstate and international
systems ............................................................. 43 
b. 
Relevant policies of the forum and other
interested states ................................................... 44 
c. 
Ease of determination and application of the
law .................................................................. 45 
d. 
Other § 6(2) factors .............................................. 45 
5. 
Summary ................................................................... 45 
C. 
Strict Liability Claims ............................................................ 45 
D. 
Timeliness Of Claims ............................................................ 46 
1. 
Choice of laws ............................................................ 46 
a. 
Substantial interest in claims .................................. 48 
b. 
Michigan statute of limitations ................................ 50 
2. 
Conclusion ................................................................. 52 
E. 
Loss Of Consortium Claim ..................................................... 52 

III. 

CONCLUSION ............................................................................ 52 

2

In this products liability case, plaintiffs allege that David Stults developed
“popcorn lung” by eating microwave popcorn daily over many years. Presently, I am
asked to determine whether the plaintiffs are entitled to present to a jury their strict
liability, failure to warn, and design defects claims about microwave popcorn.
However, before I address the merits of plaintiffs’ claims, I must resolve paradoxical
choice of law questions. Defendants assert application of the law of Michigan, where
plaintiffs reside and where they purchased the popcorn at the center of this case, while
plaintiffs assert application of the law of Iowa, where some of the microwave popcorn
was produced. These questions, and others, are presented by the defendants’ motions
for summary judgment.
I.

INTRODUCTION AND BACKGROUND
A.

Factual Background

As is my usual practice, I set out only those facts, disputed and undisputed,
sufficient to put in context the parties’ arguments concerning the defendants’ motions
for summary judgment.

Unless otherwise indicated, the facts recited here are

undisputed, at least for the purposes of summary judgment. I will discuss additional
factual allegations, and the extent to which they are or are not disputed or material, if
necessary, in my legal analysis.
1.

The parties and principal actors

Plaintiffs David Stults and Barbara Stults are residents of Grand Rapids,
Michigan. David grew up in Muskegon, Michigan, and attended college in Michigan.
Except for brief stints in California and Maryland, David has always lived and worked
in Michigan.
Defendant Bush Boake Allen, Inc. (“Bush Boake”) is a Virginia corporation with
its principal place of business in New York, New York.
3

Defendant International

Flavors & Fragrances, Inc. (“International Flavors”) is a New York corporation with
its principal place of business in New York, New York. In 2000, Bush Boake became
a wholly-owned subsidiary of International Flavors (collectively, “the Flavoring
Defendants”). None of the Flavoring Defendants have any employees or agents in
Iowa. None of the Flavoring Defendants manufactures or designs butter flavorings in
Iowa.
The Flavor and Extracts Manufacturers’ Association (“FEMA”) is a trade
association. It is comprised of flavor manufacturers, flavor users, flavor ingredient
suppliers, and others with an interest in the United States flavor industry. International
Flavors and Bush Boake are members of FEMA and have been since approximately
1984. A senior vice-president of International Flavors served on FEMA’s Board of
Governors in 1984.
Diacetyl is a basic food chemical present in all cheeses and butters. Diacetyl is
an ingredient used to manufacture butter flavorings. Diacetyl is one of a number of
potentially volatile organic compounds present in butter flavorings. Diacetyl was used
in butter flavorings in order to give the flavorings a buttery taste and smell. Upon
opening a cooked bag of microwave popcorn with butter flavorings containing diacetyl,
diacetyl vapors are released into the air.
The Flavoring Defendants sold their butter flavorings to microwave popcorn
manufacturers, including ConAgra. ConAgra Foods, Inc. (“ConAgra”) is one of the
largest manufacturers of microwave popcorn in the United States and one of the largest
food manufacturers in the world.

ConAgra has been in the microwave popcorn

business since the 1980’s. ConAgra operated microwave popcorn factories in Edina,
Minnesota, Hamburg, Iowa, Winslow, Indiana, Valparaiso, Indiana, and Marion.
Ohio.

In 1991, ConAgra purchased Golden Valley Microwave Foods (“GVMF”).

GVMF was formed around 1978 by James Watkins. Before forming GVMF, Watkins
4

invented microwave popcorn when he worked for Pillsbury. In 1982 or 1983, GVMF
became one of the first developers of a thin metal susceptor in microwave popcorn bags
that allowed the bags to cook in any oven. GVMF was a customer of Bush Boake.
GVMF became a customer of International Flavors after International Flavors acquired
Bush Boake. GVMF became one of the leaders in the United States in the manufacture
and sale of microwave popcorn.
ConAgra has been aware since the early 1990’s that butter flavorings contained
diacetyl and other volatile organic compounds.

Beginning as early as the 1990’s,

ConAgra conducted studies of the volatile organic and chemical compounds released
when its microwave popcorn was popped. ConAgra had an Environment, Occupation,
Health, and Safety Department (“EOHS”) that was responsible for the health and safety
of both ConAgra’s workers and its customers.
In developing a product, ConAgra solicits flavorings suppliers to submit flavors
which, if accepted, are subject to ConAgra’s testing and approval.

In particular,

ConAgra had a specification and approval system which butter flavorings manufacturers
had to go through before their butter flavorings would be considered for commercial
use.

ConAgra’s Snack Food Division had four to six butter flavorings suppliers.

ConAgra’s research and development department received Material Safety Data Sheets
(“MSDS”) when it received flavoring samples from flavorings suppliers.
Prior to 1994, ConAgra owned the Hunt-Wesson and Orville Redenbacher
brands of microwave popcorn.
ConAgra’s Snack Foods Division.

Hunt-Wesson was, eventually, consolidated into
In 1994, Hunt-Wesson identified diacetyl as a

“target” flavor compound in Bush Boake’s butter flavorings for microwave popcorn.
As early as 1995, Hunt-Wesson had discussions with Bush Boake about the viability of
Bush Boake’s butter flavorings.

Hunt-Wesson specifically analyzed Orville

Redenbacher flavor 39536, using its own laboratories and personnel, to learn the
5

amount of diacetyl, acetoin, and butyric acid it contained. Bush Boake had to submit
flavorings to Hunt-Wesson for Hunt-Wesson’s approval.
No one at Bush Boake or International Flavors informed ConAgra that its butter
flavorings could cause serious lung injury or bronchiolitis obliterans. Bush Boake’s
MSDS to ConAgra did not indicate that exposure to Bush Boake’s butter flavorings
could cause serious lung injury or bronchiolitis obliterans. The Flavoring Defendants
stopped selling butter flavorings containing diacetyl, including the Orville Redenbacher
flavorings, by January 2005.
ConAgra, General Mills, and American Pop Corn are all members of the
Popcorn Board.

The Popcorn Board is an industry association created to promote

research related to popcorn. Its members are popcorn manufacturers who process at
least four million pounds of popcorn per year.

The Flavoring Defendants are not

members of the Popcorn Board and have never attended the Popcorn Board’s meetings.
2.

David’s consumption of microwave popcorn

The parties dispute when David first began eating butter flavored microwave
popcorn.

David contends that it was as early as 1985.1 By 1988 or 1989, David was

preparing and eating butter flavored microwave popcorn daily 95 percent of the time.
By 1991, David’s daily routine was to prepare and eat butter flavored microwave
popcorn every evening.

For at least 19 years, David prepared, inhaled, and ate

microwave popcorn daily 95 percent of the time. The time period David ate microwave
popcorn is also disputed.

David contends that it was from 1985 to 2009.

David

estimates that he prepared and ate between 6,241 and 12,483 bags of microwave
popcorn over the course of 19 years.
The Flavoring Defendants contend that David previously reported eating butter
flavored microwave popcorn from 1991 to 2004, or 1987 to 2010.
1

6

David always prepared the microwave popcorn and always enjoyed breathing in
the buttery aroma when he removed the popcorn from the microwave. Once he opened
a bag, David would get his nose as close to the bag as he could without getting burned.
With his nose close to the bag, David would suck in the smell by taking deep breaths.
The only brand of microwave popcorn David ate that contained any of the
Flavoring Defendants’ butter flavorings containing diacetyl was ConAgra’s Orville
Redenbacher Butter.

The butter flavorings that the Flavoring Defendants’

manufactured for use in Orville Redenbacher Butter were flavors Bush Boake no.
39536 a/k/a International Flavors no. 10806906, and Bush Boake no. 85352 a/k/a
International Flavors no. 10807852.2
David remembers reading the microwave popcorn bags’ directions for how long
to cook the microwave popcorn. David does not recall looking for any warnings on
microwave popcorn bags. He does not recall any warnings provided on any bags of
microwave popcorn he ate between 1988 and 2007.

He testified that he does not

remember seeing microwave popcorn packaging that mentioned “no added diacetyl” or
“no diacetyl added,” because “if I had, it would not have resonated with me, because it
was not relevant to anything I needed to know.” David’s Dep. at 78; Defendants’ App.
at 483. Asked whether he typically read the labels of products before using them,
2

In addition to ConAgra’s Orville Redenbacher Butter, David ate the following
microwave popcorn brands: General Mills’s Pop Secret Butter, which allegedly
contained Symrise and Givaudan flavorings; General Mills’s Pop Secret Movie Theater,
allegedly containing Firmenich flavorings; ConAgra’s Act II Butter Lover’s, allegedly
containing Symrise and Givaudan flavorings; ConAgra’s Act II Butter, allegedly
containing CHR Hansen flavorings; American Pop Corn’s Jolly Time Blast O’ Butter,
allegedly containing Sensient flavorings. Each of these brands of microwave popcorn
comprised between ten percent and twenty percent of David’s total microwave popcorn
consumption.

7

David responded: “In general yes, but I can tell you at the time I was consuming
microwave butter-flavored popcorn, I didn’t have a sense of what diacetyl was, nor did
I care. For all I knew, it was something that would make you fatter or thinner. I had
no idea of the correlation to lung disease.” David’s Dep. at 563; Defendants’ App. at
488.
Asked whether a warning might have prevented him from inhaling microwave
popcorn fumes, David stated: “I would like to think that had there been a warning or if
there had been some public notice that butter-flavored microwave popcorn could create
these kinds of disastrous effects in the consumer market as it did in the workers’
market, I would have liked to have known that.” David’s Dep. at 525; Defendants’
App. at 487.

David added, “So in my opinion, had there been some kind of warning

on the bag that the fumes of this has been known to cause a non-recoverable disease, I
think I would have been much more sensitive to not breathing in the fumes which is
where this all came from to begin with.” David’s Dep. at 525; Defendants’ App. at
487. David might have seen a microwave popcorn warning telling consumers to allow
the popcorn to “cool before opening,” but he “thought perhaps this was just another
defensive thing the manufacturer is putting on there for whatever reason,” similar to
how McDonald’s warns that its coffee is hot. David’s Dep. at 565; Defendants’ App.
at 488.
The Stults purchased microwave popcorn almost entirely at grocery stores in the
Grand Rapids, Michigan area.

During the time period that David ate microwave

popcorn, he lived outside of Michigan for less than a year. David has never lived in
Iowa.
3.

David’s medical background and diagnosis

In 2008, David began to suffer symptoms associated with bronchiolitis obliterans
in Michigan. Bronchiolitis obliterans is a progressive respiratory disease that becomes
8

worse with additional exposure.

In 2009, David was diagnosed with bronchiolitis

obliterans at the Mayo Clinic. All of David’s current treating physicians are located in
the Grand Rapids area. David is currently being treated for his lung disease by Dr.
Shelley Schmidt, who practices in Grand Rapids.
4.

Popcorn and flavorings industries’ activities
a.

1986 International Bakers plant study

In 1986, the National Institute for Occupational Safety and Health (“NIOSH”)
published a study regarding a Health Hazard Evaluation involving bronchiolitis
obliterans at an International Bakers plant in Indiana. The NIOSH’s report concluded
that two workers at the plant had been diagnosed with lung injuries clinically consistent
with bronchiolitis obliterans or emphysema. The NIOSH’s 1986 International Bakers
report stated: “In the absence of specific identified etiology for the two cases of severe
obstructive lung disease, every attempt should be made to control airborne dust
exposure in the mixing room.” 1986 NIOSH Report at 2; Plaintiffs’ App. at 965. The
NIOSH report makes no reference or recommendation regarding exposure to “vapors,
mists or fumes” which could arise from evaporating liquid.
b.

Bronchiolitis obliterans at Givaudan plant

By 1992, FEMA member Givaudan discovered that some of its employees had
been diagnosed with bronchiolitis obliterans and that one of its employees may have
died as a result.

This discovery led to the creation of an internal task force to

investigate the potential for lung injury at the Givaudan plant. In 1992, Givaudan
established safety procedures including the use of respirators for workers exposed to
diacetyl or products containing diacetyl. In 1993, the Givaudan task force reported that
diacetyl could be a cause of bronchiolitis obliterans and further studies should be

9

conducted.3 In 1994, Dr. Stuart Brooks, M.D., a specialist retained by Givaudan as
part of its investigation, confirmed the bronchiolitis obliterans diagnosis in two of
Givaudan’s employees. Dr. Brooks recommended steps to continue the investigation to
determine the cause and prevent further bronchiolitis obliterans cases.

In 1994,

Givaudan retained specialists from the University of Cincinnati to investigate the level
of lung disease among Givaudan employees. The specialists included Roy McKay, a
pulmonary toxicologist, Dr. James Lockey, M.D., an occupational physician, and Dr.
Susan Pinney, Ph.D., an epidemiologist. On July 22, 1996, Mike Davis, Givaudan’s
President, and Nancy Davis, Givaudan’s toxicologist, met with John Halligan, a FEMA
attorney and science advisor, to inform FEMA that Givaudan employees had been
diagnosed with bronchiolitis obliterans.

On September 27, 1996, Karen Duros,

Givaudan’s General Counsel, and Dr. Lockey met with Halligan again to educate
FEMA on bronchiolitis obliterans and what was happening at the Givaudan plant.
During this time period, Mike Davis served on FEMA’s Board of Governors with
Symrise’s President and International Flavor’s Vice President.
c.

FEMA and its 1997 conference

Among the health hazard information FEMA publishes for its members are
Flavor and Fragrance Ingredient Data Sheets (“FFIDS”) for flavoring chemicals. In
1985, FEMA issued a FFIDS for diacetyl which stated that, upon inhalation, diacetyl
was “harmful” and high concentrations were “capable of producing systemic toxicity.”

By 1993, BASF AG, a German Company that manufactured diacetyl, had
conducted diacetyl inhalation studies on rats that showed respiratory damage. It is
unclear from the summary judgment record when the BASF study was released to the
public.
3

10

FFIDS at 2; Plaintiffs’ App. at 62.

FEMA has a standing Safety Evaluation

Coordination Committee. That committee’s responsibilities are:
To direct and oversee all safety evaluation activities of the
Association, and to monitor safety evaluation activity,
wherever it occurs, related to flavors. To initiate or
cooperate in initiating activities related to, and supporting,
competent and effective safety evaluation of flavors. To
coordinate the safety evaluation activities of the Board of
Governors, the Expert Panel, other committees of the
Association,
and
outside
organizations
including
governmental agencies, scientific and academic institutions
and other industry groups,
FEMA Directory at 26; Plaintiffs’ App. at 464. FEMA also has a standing Flavor
Ingredients Committee. The responsibilities of this committee are:
To plan and conduct periodic surveys of the industry, to
obtain current usage data on flavoring ingredients, and to
review and interpret the results of such surveys. To locate
and obtain samples of materials required for use in scientific
studies sponsored by the Association. To locate and compile
other available data on flavor ingredients which may be
required to evaluate the safety of those ingredients or to
assign priorities for their review.
FEMA Directory at 24; Plaintiffs’ App. at 463.

FEMA’s Flavor Ingredients

Committee did not conduct any original animal studies. By 1997, no FEMA committee
existed which was responsible for determining whether chemicals could be hazardous
when inhaled.
Additionally, FEMA developed a Generally Recognized As Safe (“GRAS”) list
of ingredients. FEMA’s membership directory explained:
The GRAS list—FEMA formulated an innovative program
utilizing the generally-recognized-as-safe (GRAS) concept to
evaluate the safety of flavor ingredients. Through the
creation of an Expert Panel to determine the GRAS status of
flavoring ingredients; A GRAS list of nearly 1800
11

ingredients has been developed for use by the industry. The
Expert Panel periodically reviews the status of existing
ingredients and provides the opportunity for the introduction
of new ingredients. The GRAS list is a unique example of
an established, successful, industry self-regulation program.
FEMA Directory at 3; Plaintiffs’ App. at 452.
As a result of the findings of bronchiolitis obliterans at Givaudan’s plant, John
Hallagan, a science advisor and attorney for FEMA, advised FEMA’s Board of
Governors that an employee of a member flavor company had been diagnosed with
bronchiolitis obliterans and that FEMA should provide a seminar for its members on
occupational lung disease and respiratory protection.4

In March 1997, FEMA

sponsored a seminar entitled “Respiratory Safety in the Flavor and Fragrance
Workplace” (“the 1997 FEMA Seminar”). Dr. Cecille Rose, an occupational medicine
physician from the National Jewish Health Center, and John Martyny, a certified
industrial hygienist, spoke at the 1997 FEMA Seminar. Rose and Martyny addressed
respiratory safety in the flavor industry.
The seminar materials provided in relevant part:
There is no list of flavor and fragrance ingredients
that may present respiratory hazards in the workplace.
Some flavor and fragrance ingredients such as acetaldehyde
may pose respiratory hazards, and are so identified on
Material Safety Data Sheets (MSDS). There is no list of
specific respiratory, or other, diseases associated with flavor
and fragrance workplaces.
FEMA and FMA staff and members regularly
monitor the literature and other sources of information to
keep abreast of developments in workplace safety relevant to
Givaudan’s identity was kept secret and it was referred to as “Company X” in
FEMA documents.
4

12

the flavor and fragrance industries. As we have seen,
reports of specific problems are rare which supports our
conclusion that flavor and fragrance workplaces are very
safe.
One of the few relevant reports is the 1986 NIOSH
Health Hazard Evaluation Report of International Baker’s
Services, a company based in South Bend, Indiana which
provided flavors and other materials to the baking industry.
In this instance, NIOSH evaluated a cluster of respiratory
illness in the workplace. NIOSH was unable to identify any
specific chemical that may have caused the respiratory
effects noted in several workers, nor were they able to
specifically identify the disease although they concluded that
the disease may have been bronchiolitis obliterans.
Seminar Materials at 10; Plaintiffs’ App. at 150. Bronchiolitis obliterans was also
discussed at the seminar. By the end of the seminar, attendees were aware of a possible
case of bronchiolitis obliterans at a FEMA member plant. Attendees were informed
about steps that could be taken to try to prevent individuals from being exposed to
things that could cause bronchiolitis obliterans.
d.

General Mills’s skin irritation problems

Some General Mills’s employees at its microwave popcorn plant in Iowa City,
Iowa began experiencing skin irritation problems in the mid to late 1990’s.

In

investigating this skin irritation problem, General Mills contacted Givaudan for advice
on butter flavorings and industrial hygiene. At the request of General Mills, Givaudan
representatives came to its plant in Iowa City. Givaudan advised General Mills on how
to protect workers from skin irritation but never told General Mills that Givaudan
always required its workers to wear respirators when working with diacetyl. General
Mills asked Givaudan if inhaling butter flavorings was hazardous and was told it was
not hazardous. In 1999, General Mills hired ventilation consultants to install exhaust
hoods at its Iowa City plant.
13

In approximately 1999, Dr. Gary Olmstead, Dr. Thomas Trautman, and Dr.
Tim Crimmins began investigating complaints of skin rashes among workers in General
Mills’s Iowa City popcorn plant. Dr. Crimmins was General Mills’s Vice-President of
Health, Safety and Environment. He received board certification in emergency
medicine and was a past Chairman of the Board of the Minnesota Medical Association.
Dr. Olmstead, Ph. D., was General Mills’s Director of Safety from 1997 through 2000.
He received his doctorate in environmental health from the University of Cincinnati in
1982 and became a Certified Industrial Hygienist in 1984.

Dr. Trautman was an

industrial hygienist at General Mills for 30 years, beginning in 1978. Dr. Trautman
obtained his doctorate in toxicology from the University of California at Davis. He
focused on product and consumer safety at General Mills.

As part of their

investigation, they looked into diacetyl. They had access to the scientific and medical
literature available at the time and reviewed publications regarding diacetyl in the
course of their investigation.
On October 6, 2001, Dr. Trautman wrote an e-mail memorandum outlining
General Mills’s position that “[d]iacetyl, in our setting, is safe. Nothing has changed
for us.” Trautman Memorandum at 1; Defendants’ App. at 140. Dr. Trautman added:
“From the very beginning we knew we needed to take care to minimize exposure [to
diacetyl].” Trautman Memorandum at 1; Defendants’ App. at 140.
e.

NIOSH’s investigation of Jasper plant

In August 2000, NIOSH performed a Health Hazard Evaluation (“HHE”) of the
Gilster-Mary Lee microwave popcorn packaging facility in Jasper, Missouri, where
there were reported incidents of workplace-related lung disease. NIOSH performed
industrial hygiene sampling to measure contaminates. NIOSH also conducted a medical
survey of Gilster-Mary Lee plant workers.

14

On August 22, 2001, NIOSH published an interim report regarding its
investigation of the Gilster-Mary Lee microwave popcorn packaging facility. Diacetyl
was found to be the “predominant” ketone in the Jasper plant. NIOSH also found that:
Plant employees had 2.6 times the rates of chronic cough
and shortness of breath compared to national data, adjusted
for smoking and age group; younger employees who had
never smoked had rates about five times higher than
expected from national rates. Overall, plant employees had
3.3 times the rate of obstructive spirometry abnormalities
compared to national adjusted rates; never smokers had 10.8
times the national rate. Worker reports of physiciandiagnosed asthma and chronic bronchitis were about twice as
frequent as expected from national data, with a 3.3-fold
excess of chronic bronchitis in never smokers. Microwave
popcorn production workers had statistically higher rates of
regular trouble with breathing and unusual fatigue,
compared with workers in two lower exposure groups.
NIOSH Gilster-Mary Lee Report at 2; Defendants’ App. at 255.5 NIOSH concluded
that “[s]trong exposure-response relationships existed between quartile of estimated
cumulative exposures to diacetyl and respirable dust and frequency and degree of
airway obstruction.” NIOSH Gilster-Mary Lee Report at 2; Defendants’ App. at 255.
In March and April of 2002, NIOSH conducted follow-up medical and
environmental testing at the Gilster-Mary Lee plant. On July 26, 2002, NIOSH issued
an interim letter report. NIOSH found that: “In more complex analyses performed
since our interim report in August of 2001, we reported an additional high risk work
area in the plant-quality control (QC), in which 5 of the 6 workers had airways

The Stults also included a copy of the NIOSH’s Gilster-Mary Lee Report in
their appendix at 499.
5

15

obstruction.” NIOSH Gilster-Mary Lee Letter Report at 2; Plaintiffs’ App. at 546.
NIOSH further noted:
From our observations and measurements, we conclude that
QC workers are repeatedly exposed for intervals of several
seconds up to several minutes to elevated organic vapor
concentrations by work processes throughout the shift. The
sources of these vapors are the following:
1.

Microwave oven fan exhaust air during cooking of
the corn.

2.

Bursts of steam and flavoring vapors ejected as bags
are opened

3.

Vapors rising from corn while being loaded into
graduated cylinder

NIOSH Gilster-Mary Lee Letter Report at 2; Plaintiffs’ App. at 546. NIOSH made
numerous safety recommendations specific to the quality control room and quality
control workers to improve the air quality and reduce worker exposures.

The

recommendations included installation of vented enclosures with a vertical sash in front
to allow workers to perform testing with their arms under the sash, placement of
ventilation slots in back of the enclosure, and performing all testing within the
enclosure.
On August 2, 2002, NIOSH provided Gilster-Mary Lee with a “Worker Update
about NIOSH Testing at Jasper Popcorn.” The update noted: “We believe that butter
flavoring vapors in the air caused lung disease in workers at this plant.”
Gilster-Mary Lee Worker Update at 1; Plaintiffs’ App. at 557.

The update also

discussed quality control room workers’ exposures, observing:
Many quality control workers had abnormal breathing tests
and have continued risk even after the ventilation changes in
the plant. Based on our survey results, we believe that they
may receive many peak exposures to flavoring vapors when
16

NIOSH

microwaving the popcorn bags, opening them, and
measuring the amount of hot popcorn.
When the
popcorn/flavorings temperature increases, the vapors
increased, although the high exposures only lasted for
seconds or a few minutes. We are concerned about these
short peak exposures in the quality control room and have
provided recommendations for control.
NIOSH Gilster-Mary Lee Update at 2; Plaintiffs’ App. at 558. NIOSH assessed real
time air sampling in the Gilster-Mary Lee quality control room using a Fourier
Transform Infared Gas Analyzer and found peak diacetyl concentrations of 56 parts per
million inside a microwave bag immediately after popping and 13 parts per million near
the bag opening during dumping of the popped corn in a container. The Flavoring
Defendants contest these measurements and contend that NIOSH’s results of air
sampling were inaccurate.
f.

NIOSH’s investigation at American Pop Corn

In the early fall of 2001, NIOSH contacted American Pop Corn, through Iowa’s
Department of Public Health, regarding the health of its popcorn manufacturing
employees as a result of the events at the Jasper Popcorn Plant. In September 21,
2001, Greg Hoffman, American Pop Corn’s Vice President of Production, met with
NIOSH’s Dr. Kullman. Based on the meeting, American Pop Corn decided to allow
NIOSH access to their microwave facility in order to conduct sampling and testing.
According to Hoffman, American Pop Corn was “absolutely” on notice of some kind
of health “issue” going on in the popcorn industry. On September 26, 2001, NIOSH
conducted a walk-through survey at the American Pop Corn plant in Sioux City, Iowa.
From November 2002 through July 2003, NIOSH issued recommendations to American
Pop Corn related to “engineering controls,” “flavoring substitution,” “work practices,”
“respiratory

protection

program,”

and

“medical

surveillance.”

recommendation concerning “flavoring substitution,” stated:
17

NIOSH’s

Although much remains to be learned regarding the
compounds in butter flavorings that may have toxicity and
what are safe levels of exposure, the possibility of replacing
liquid or past flavorings formulations with low emissions
powders should be explored. A powdered flavoring that
generates little dust when handled, and has low emissions of
VOCs before and after it is added to heated soybean oil,
may be safer than a dustier powder that can be inhaled by
workers.
NIOSH American Pop Corn Report at 11; Defendants’ App. at 90.
g.

Wall Street Journal article and its fallout

On October 3, 2001, the Wall Street Journal published an article, “Butter
Flavoring May Pose A Risk To Food Workers,” disclosing that NIOSH discovered
respiratory problems among the workers at the Jasper plant.

In the article,

International Flavors is quoted as stating: “‘We do not believe that any of our products
are responsible for any injuries that the plaintiffs may have suffered.’” Wall Street
Journal Article at 1-2; Plaintiffs’ App. at 748-49.
Two days after the Wall Street Journal article was published, American Pop
Corn and another popcorn manufacturer created the Popcorn Board’s Ad Hoc
Committee on Worker Safety (“the Ad Hoc Committee”).

The Ad Hoc Committee’s

purpose was to learn about the status of the investigation at the Jasper plant and what
the microwave popcorn industry could do to ensure workers’ safety.
Jim Montealegre and Michael Bey, both GVMF vice presidents, were members
of the Ad Hoc Committee. Jim Collins, a General Mills industrial hygienist, also
served on the Ad Hoc Committee. On October 10, 2001, the Ad Hoc Committee held
its first meeting.

Both Montealegre and Bey attended this meeting.

Two NIOSH

investigators at the Jasper plant presented the current status of their investigation at the
Jasper plant.

On October 15, 2001, the Ad Hoc Committee circulated a personal

protective equipment (“PPE”) tip sheet among its members, including Montealegre and
18

Bey. The PPE tip sheet recommended mandatory respiratory usage for workers in
flavoring mixing rooms.
On October 20, 2001, the Ad Hoc Committee, which included Collins and
representatives of ConAgra, met in Chicago with NIOSH investigators. A NIOSH
representative explained problems experienced at the Jasper popcorn plant in 2000 and
NIOSH’s investigation regarding the purported link between diacetyl exposure and lung
disease. Following this meeting, ConAgra did not modify its packaging of Orville
Redenbacher microwave popcorn to warn consumers about the alleged risks of
exposure to butter flavorings containing diacetyl. On October 23, 2001, the Ad Hoc
Committee circulated a ventilation tip sheet among its members, including Montealegre
and Bey.
h.

Jasper plant litigation

On September 7, 2001, workers from the Jasper plant brought suit against
International Flavors regarding respiratory disease allegedly being caused by exposure
to microwave popcorn butter flavorings. On June 13, 2002, International Flavors filed
a Form 8-K with the Securities and Exchange Commission.6

In this 8-K form,

International Flavors reported in part that:
International Flavors & Fragrances Inc. (IFF) is filing
today further information regarding a purported class action
brought against it in circuit court of Jasper County,
Missouri, on behalf of employees at a plant owned and
operated by Gilster-Mary Lee Corp. in Jasper, Missouri. . .

Form 8-K is a form that publically traded companies must file with the
Securities Exchange Commission under the Securities Exchange Act of 1934 when
material events with the company occur. See www.sec.gov/about/forms/form8-k.pdf.
6

19

IFF’s flavors, including butter flavor that is the
subject of the lawsuit, meet the requirements of the U.S.
Food and Drug Administration (FDA). IFF’s flavors are
safe for handling and use by workers in food manufacturing
plants when used according to specified safety procedures.
These procedures are detailed in instructions that IFF
provides to all of its customers for the safe handling and use
of its flavors. These instructions were provided to the
Gilster-Mary Lee Jasper, Missouri plant for the butter
flavor. They include the appropriate engineering controls,
such as adequate ventilation, proper handling procedures and
respiratory protection for workers. IFF’s customers are
responsible for assuring that their employees follow these
standards.
The preliminary report issued by the National
Institute for Occupational Safety and Health (NIOSH)
indicates that these instructions were not followed at the
Gilster-Mary Lee Jasper, Missouri plant. As a result, IFF
believes that any injuries the plaintiffs may have suffered are
related to inadequate workplace conditions, including
insufficient ventilation and the failure of the employer to
assure that its employees used appropriate respiratory
protection.
Diacetyl is one of many ingredients in the butter
flavor, but the flavor is only one of a number of substances
the workers handled or were exposed to. Neither NIOSH in
its report nor any other body that has investigated the Jasper
plant has identified a specific cause of any injuries or
illnesses that the workers may have suffered. In fact, the
NIOSH report states that any one or more of a number of
substances, including: volatile organic compounds other
than diacetyl, and respirable dust, concentrations of all of
which were measured by NIOSH “may be a marker for the
causative agent or agents in the mixing and microwave
popcorn production areas.”
....
20

In manufacturing flavors, IFF employees routinely
handle and use significantly higher concentrations of
ingredients, including diacetyl, than those in the butter
flavor provided to Gilster-Mary Lee. Yet no IFF employee
has ever suffered respiratory illness or injury as a result of
handling and use. IFF’s own experience reinforces the
conclusion that any injuries or illnesses that the Jasper plant
employees may have suffered were caused not by IFF
flavors or any of their ingredients but by inadequate
workplace conditions at the facility.
International Flavors’s 8-K Form at 1-2; Plaintiffs’ App. at 382-83. On March 15,
2004, International Flavors filed another 8-K form which substantially repeated the
information contained in its 2002 8-K form.
i.

NIOSH’s investigation at ConAgra

In 2002, NIOSH received a request for a Health Hazard Evaluation at
ConAgra’s microwave popcorn plant in Marion, Ohio. NIOSH eventually investigated
not only ConAgra’s Marion plant, but both other ConAgra plants, including its
Hamburg, Iowa, plant.

As a result of those investigations, NIOSH made

recommendations to ConAgra to implement additional protective measures for its
workers.

Following NIOSH’s investigation, a number of ConAgra workers at its

Marion plant filed lawsuits alleging that they developed lung disease allegedly caused
by their exposure to butter flavorings at the plant.

In December 2004, NIOSH

published the results of its investigation of the Marion plant.
j.

Miscellaneous events in 2002

In 2002, ConAgra attended the FEMA workshop on “Respiratory Safety in the
Flavor and Fragrance Workplace.” FEMA informed attendees of the risk associated
with butter flavorings exposure and steps to improve worker health. In October 2002,
the Popcorn Board signed an alliance agreement with the Occupational Safety and
Health Administration (“OSHA”). The purpose of this agreement was to provide
21

microwave popcorn companies with information to assist them in protecting employee
health and safety, particularly in reducing and preventing the incidence of obstructive
lung disease in the workplace. On October 31, 2002, NIOSH drafted an “alert” which
provided industry-wide recommendations to reduce or eliminate exposure to butter
flavorings hazards in the workplace. NIOSH submitted a draft of this alert to the Ad
Hoc Committee for its input.

Both Montealegre and Bey were copied in on the

memorandum with the attached NIOSH draft alert.
On April 26, 2002, the United States Centers for Disease Control and Prevention
published a report entitled, “Fixed Obstructive Lung Disease in Workers at a
Microwave Popcorn Factory—Missouri, 2000-2002.” In this report, the CDC stated
that it had “no evidence to suggest risk for consumers in the preparation and
consumption of microwave popcorn.” CDC Report at 1; Defendants’ App. at 496. In
July 2004, NIOSH issued a Health Hazard Evaluation Report regarding American Pop
Corn, HETA #2001-0474-2943.

NIOSH found that “[s]ix of 13 workers with

experience as mixers had abnormal lung function.”

NIOSH American Pop Corn

Report at iii; Defendants’ App. at 76.
k.

The Flavoring Defendants’ product testing and warnings

Both the Flavoring Defendants have research and development facilities. Bush
Boake’s facility is located in Mercedes, New Jersey, and International Flavors’s facility
is in South Brunswick, New Jersey.
Bush Boake used diacetyl in some of its butter flavorings. Bush Boake did not
test the flavoring ingredients or the mixtures in its butter flavorings to determine if they
were safe to eat. In December 1991, Bush Boake planned to conduct air sampling at its
flavorings plant for eight chemicals, including diacetyl, in March 1992. In 1993, Bush
Boake knew that some of its employees “showed breathing problems on the pulmonary
function testing.” Bush Boake Memo at 2; Plaintiffs’ App. at 326. On September 20,
22

1993, Bush Boake’s “production formula” for product 85030 warned Bush Boake
employees that the ingredient diacetyl had a hazard rating of 2 which constituted a
“moderate” inhalation hazard.

By November 1993, Bush Boake made respirators

available to compounders. In 1994, Bush Boake instituted a Respiratory Protection
Program for employees working around a variety of chemicals. One of the “potential
respiratory exposures” identified in the Respiratory Protection Program for prevention
in the compounding room was diacetyl. In 1995, Carlos Montenegro, a member of
Bush Boake’s safety committee, performed a literature review concerning the toxicity
of diacetyl.

After completing his research, Montenegro made no safety

recommendations concerning diacetyl and discarded the literature he had collected in
his research.
Bush Boake supplied several butter flavorings to ConAgra which contained
diacetyl.

On August 18, 2004, Michael O’Donnell, ConAgra’s Vice President of

Ingredients Enterprise Procurements, wrote to International Flavors requesting
additional information regarding International Flavors’s butter flavorings. O’Donnell
wrote in pertinent part:
In fact, the MSDS sheets themselves cause more
questions than they answer, because clearly IFF has done
some sort of scientific analysis of the butter flavors that they
have not shared with ConAgra Foods. I have a series of
questions to this point for clarification later in this letter.
Our concern has been greatly heightened over the last
several days when on Monday you provided me with the
FEMA Respiratory Health and Safety in the Flavor
Manufacturing Workplace. Based on just a cursory reading
of this Report, it is clear that the flavoring manufacturers
have been working for quite some time on analyzing butter
flavors and various compounds used to create them, but
have failed to provide any of that information to your
customers.
23

Moreover, and even more surprising, was your email to me indicating that your insurance companies will no
longer insure butter flavors containing diacetyl for use in
microwave popcorn, that you are no longer selling these
butter flavors to any of your other microwave popcorn
customers, just us, and that you have already started
working on new flavors to replace the current butter flavors,
without even talking to ConAgra Foods’ Research and
Development scientists. All this activity is cause for
concern, especially changing our butter flavors without
consulting with our R&D team when there is no scientific
evidence indicating that there is a health hazard to
consumers or employees with these butter flavors.
O’Donnell Letter at 1; Plaintiffs’ App. at 693.
following specific request:

O’Donnell goes on to make the

“IFF has clearly created a risk assessment associated with

diacetyl. Please identify the research data and reports on which this assessment is
based.” O’Donnell letter at 1; Plaintiffs’ App. at 693.
On September 1, 2004, Ronald Senna, International Flavors’s Vice President of
Corporate Safety, Environmental & Regulatory Affairs, responded to O’Donnell’s
letter. In response to O’Donnell’s question, Senna answered:
IFF has not performed a risk assessment for diacetyl since
there is very limited scientific information to allow such an
assessment to be performed. In addition, the variability of
use of this substances [sic] by our customers does not allow
such an assessment to be conducted by IFF since it requires
both hazard and customer workplace exposure information
which is not available to IFF.
Senna Letter at 1-2; Symrise’s Supp. App. at 630-31.
l.

The 2007 Rosati study

In 2007, the United States Environmental Protection Agency (“EPA”) conducted
“the first study to take a comprehensive look at chemicals released while microwaving
an entire conventional microwave popcorn product.” Rosati Study at 701; Plaintiffs’
24

App. at 560. The Rosati study “identified and quantified chemical emissions released
in the process of popping and opening a bag of microwave popcorn.” Rosati Study at
701; Plaintiffs’ App. at 560. The study noted the exposure risks to quality control
workers:
Quality control (QC) personnel, who pop corn and open
bags, had a high incidence of respiratory and dermal
symptoms (Kanwal et al., 2006; Kreiss et al., 2002).
NIOSH scientists confirm that workers in the QC areas have
shown an increased risk of lung disease (Kanwal et al.,
2006). This prompted the EPA’s interest in what is released
into the immediate environment when microwaving popcorn,
and its potential to impact indoor air quality.
Rosati Study at 701; Plaintiffs’ App. at 560. The study further noted the similarity
between the vapors from cooking microwave popcorn in a microwave and those found
in microwave popcorn plants, observing:
Numerous chemicals were measured in the air exiting
the chamber during microwave popcorn popping and
opening. The predominant emitted chemicals agreed with
those chemicals sampled by NIOSH inside microwave
popcorn manufacturing plants (Kullman et al., 2005) with
the exception of methyl ethyl ketone (MEK).
Rosati Study at 706; Plaintiffs’ App. at 565. The study found that “chemicals continue
to be released from microwave popcorn after bag opening.” Rosati Study at 706;
Plaintiffs’ App. at 565.
m.

Miscellaneous events in 2008

On February 12, 2008, Dr. Mitchell A. Cheeseman, Director of the United
States Food and Drug Administration, stated:

“We’re looking at the available

information we have on the potential for consumer exposure and how that relates to the
available safety data. . . . At this time . . .we still consider diacetyl used as a flavoring
agent to be safe for consumers.” Columbia Dispatch Article at 1; Defendants’ App. at
25

512. The next month, on March 13, 2008, Dr. Daniel Morgan of the National Institute
of Environmental Health Science is quoted stating:
There’s a lot of concern about whether it’s safe to eat
microwave popcorn at home. I think we have to understand
that the amounts of diacetyl present in foods and in the
microwave popcorn is very low. And to my knowledge,
there are no data showing it’s unsafe to consume food
containing diacetyl. This is primarily an occupational-type
hazard[.]”
WebMD Article at 1; Defendants’ App. at 510.
On December 4, 2008, a comment was posted on the NIOSH science blog,
stating in part:
Unlike workers, so far there have not been peer-reviewed
scientific studies showing that consumers using products
such as microwave popcorn that contain butter flavoring
chemicals are at increased risk for lung disease. . . .
Currently, even though there is little to suggest significant
risk to normal consumers, a sensible precautionary approach
is appropriate. Consumers could take simple precautions to
minimize the amount of diacetyl and other chemicals that
they breathe. Cooking or popping of products containing
diacetyl and other butter flavoring chemicals should be done
in a food preparation area with adequate exhaust ventilation.
Good ventilation will help dilute and remove vapors. In the
case of microwave popcorn, the popped bags should be
allowed to cool before they are opened, which will also
decrease exposure to vapors.
NIOSH Blog; Defendants’ App. at 503-04.
5.

Diacetyl free butter flavorings alternatives

Givaudan or Tastemaster developed a butter flavoring that did not contain
diacetyl.

The record does not establish when this product was developed or sold.

ConAgra also developed a diacetyl free butter flavoring by removing the diacetyl and
26

rebalancing the remaining ingredients.

Again, the record does not establish when

ConAgra created this butter flavoring. Elan Chemical Co., Inc. advertised a product
“Butterome” as a diacetyl replacement. The record, however, does not establish
whether Butterome was a successful replacement for diacetyl. In September 2002, St.
Louis flavors was developing butter flavoring that contained little or no diacetyl. The
record also does not establish when the Flavoring Defendants became aware of a
commercially feasible alternative to butter flavorings containing diacetyl.

On

December 17, 2007, ConAgra issued a news release announcing its introduction of
Orville Redenbacher microwave popcorn without diacetyl
6.

Dr. David Egilman

Dr. David Egilman, the Stults’ causation expert, has opined that the highest rate
of diacetyl emission occurs when microwave popcorn bags are opened, and the second
highest occurs during popping. Dr. Egilman also concludes that diacetyl remains in the
air up to 40 minutes after cooking microwave popcorn. In his opinion, he describes the
causal link between the Flavoring Defendants’ conduct and David’s injuries as follows:
Had they tested and warned appropriately diacetyl would
never have been added to the product and, if it had been, a
warning would have made it unlikely that Mr. Stults would
have used the product. Finally, had he used it, a warning
would have resulted in a correct diagnosis and an
elimination of the exposure after she [sic] got sick reducing
the severity of his disease.
Egilman Report at 93; Plaintiffs’ App. at 662.
According to Dr. Egilman, neither of the Flavoring Defendants shared their
knowledge that diacetyl posed a respiratory hazard with its customers. The Flavoring
Defendants hotly contest all of Dr. Egilman’s opinions.

27

B.

Procedural Background

On August 23, 2011, plaintiffs David Stults and Barbara Stults filed their First
Amended Complaint against several manufacturers and distributors of microwave
popcorn and several suppliers of butter flavorings containing diacetyl.7

The Stults

allege claims of strict liability, negligence, breach of warranty, and loss of consortium.
The Stults’ claims all stem from David’s alleged respiratory injury resulting from his
exposure to popcorn containing butter flavorings containing diacetyl. The parties are
before me by virtue of diversity of citizenship. See 28 U.S.C. § 1332.
The Flavoring Defendants have filed the following motions for summary
judgment:
The Flavoring Defendants’ Joint Motion For Partial Summary Judgment on
Plaintiffs’ Strict Liability Claim (docket no. 146); the Flavoring Defendants’ Joint
Motion For Partial Summary Judgment As To Counts II-IV Based On Michigan’s
Three-Year Statute Of Limitation (docket no. 154); the Flavoring Defendants’ Motion
for Partial Summary Judgment Regarding Failure To Warn (docket no. 156); the
Flavoring Defendants’ Joint Motion For Partial Summary Judgment on Strict Liability
Under Iowa Law (docket no. 159); the Flavoring Defendants’ Joint Motion For
Summary Judgment on Plaintiffs’ Breach of Implied Warranty Claim (docket no. 161).

All of the manufacturers and distributors of microwave popcorn and all of the
suppliers of butter flavorings except Bush Boake and International Flavors, Sensient,
L.L.C. and Symrise, Inc. have been dismissed. Additionally, the parties have advised
me that the Stults have reached settlements with Symrise and Sensient, but have not yet
filed notices of dismissal. The parties’ settlements make it unnecessary for me to
consider Sensient and Symrise’s pending motions for summary judgment.
7

28

In their Joint Motion For Partial Summary Judgment on Plaintiffs’ Strict
Liability Claim, the Flavoring Defendants argue that Michigan law should govern the
Stults’ claims against them and that, under Michigan law, the Stults’ strict liability
claims fail because Michigan only allows a plaintiff to recover under negligence or
warranty theory in a products liability case.
In their Joint Motion For Partial Summary Judgment As To Counts II-IV Based
On Michigan’s Three-Year Statute Of Limitation, the Flavoring Defendants contend
that the Stults’ negligence and breach of implied warranty claims are time-barred under
Michigan’s three year statute of limitations.
In their Joint Motion For Partial Summary Judgment Regarding Failure To
Warn, the Flavoring Defendants contend that the Stults’ failure to warn claims fail as a
matter of law because there is no evidence that any alleged failure to warn was the
proximate cause of David’s injuries. The Flavoring Defendants also argue that because
the microwave popcorn manufacturers were sophisticated users of flavorings, they were
in a better position to warn consumers of their products.
In their Joint Motion For Partial Summary Judgment On Plaintiffs’ Breach Of
Warranty Claim, the Flavoring Defendants make four arguments. First, the Flavoring
Defendants contend that the breach of implied warranty claims are redundant of the
Stults’ negligent claims under either Iowa or Michigan law. Second, the Flavoring
Defendants argue that the Stults have offered no proof of a product defect, and,
therefore, they cannot sustain their design defect negligence claims under either Iowa or
Michigan law. Finally, the Flavoring Defendants argue on any failure to warn that
occurred after June 11, 2009, because any failure to warn after that date could not be a
proximate cause of David’s alleged injury under Iowa law.

29

The Stults filed timely resistances to all of the Flavoring Defendants’ motions for
summary judgment. The Flavoring Defendants, in turn, filed timely reply briefs in
support of their motions.
II.
A.

LEGAL ANALYSIS

Summary Judgment Standards

Motions for summary judgment essentially “define disputed facts and issues
and . . . dispose of unmeritorious claims [or defenses].”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 585 (2007) (internal quotation marks and citation omitted); see
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal purposes
of the summary judgment rule is to isolate and dispose of factually unsupported claims
or defenses. . . .”). Summary judgment is only appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits,
if any, show that there is no genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c) (emphasis added);
see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary
judgment is appropriate if viewing the record in the light most favorable to the
nonmoving party, there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.”).
A fact is material when it “‘might affect the outcome of the suit under the
governing law.’” Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir. 2003) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Thus, “the substantive
law will identify which facts are material.” Anderson, 477 U.S. at 248. An issue of
material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953
F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could return a
30

verdict for the nonmoving party’ on the question,” Woods, 409 F.3d at 990 (quoting
Anderson, 477 U.S. at 248); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418
F.3d 820, 832 (8th Cir. 2005) (stating genuineness depends on “whether a reasonable
jury could return a verdict for the non-moving party based on the evidence”).
Procedurally, the moving party bears “the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of the record
which show a lack of a genuine issue,” Hartnagel, 953 F.2d at 395 (citing Celotex, 477
U.S. at 323), and demonstrating that it is entitled to judgment according to law. See
Celotex, 477 U.S. at 323 (“[T]he motion may, and should, be granted so long as
whatever is before the district court demonstrates that the standard for the entry of
summary judgment, as set forth in Rule 56(c), is satisfied.”). Once the moving party
has successfully carried its burden under Rule 56(c), the nonmoving party has an
affirmative burden to go beyond the pleadings and by depositions, affidavits, or
otherwise, designate “specific facts showing that there is a genuine issue for trial.”
FED. R. CIV. P. 56(e); Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir.
2005) (“The nonmoving party may not ‘rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a genuine issue
for trial.’” (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995))).
As the Eighth Circuit Court of Appeals has explained,
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, –––U.S. ––––, 129 S. Ct. 2658, 2677, 174 L.
Ed. 2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted).
“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530
31

U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000),
quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The
nonmovant “must do more than simply show that there is
some metaphysical doubt as to the material facts,” and must
come forward with “specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986). “‘Where the record taken
as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en banc).
Summary judgment is particularly appropriate when only questions of law are
involved, rather than factual issues that may or may not be subject to genuine dispute.
See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir. 2006).
Consequently, I turn to consider the parties’ arguments for and against summary
judgment.

B.

Choice Of Law

The Flavoring Defendants have filed two motions for summary judgment
directed at the Stults’ strict liability claims. In one, they argue that Michigan law
should govern the Stults’ claims against the Flavoring Defendants and that, under
Michigan law, the Stults’ strict liability claims fail.

In the second, the Flavoring

Defendants repeat the contention that Michigan law should govern the Stults’ claims
against them and the Stults’ claims of strict liability fail under that law but alternatively
argue that, even if Iowa law applies to the Stults’ strict liability claims, their claims fail.
Before analyzing the Stults' strict liability claims, I must first resolve which state's law
should apply—the law of Michigan, where the Stults reside and where the Stults
32

purchased, and David ate, the microwave popcorn giving rise to this case, or the law of
Iowa, the state where much of the microwave popcorn was produced and packaged.
Then I will turn to the question of whether the Stults’ strict liability claims are viable.
1.

Is there a “true conflict” of laws?

This is not the first time I have confronted the often knotty problem of what law
applies to specific common-law and statutory claims in a diversity action. Estate of
Pigorsch ex rel. Martin v. York College, 734 F. Supp.2d 704, 711 (N.D. Iowa 2010);.
Johnson v. American Leather Specialties Corp., 578 F. Supp. 2d 1154, 1162 (N.D.
Iowa 2008); John Morrell & Co. v. Halbur, 476 F. Supp.2d 1061, 1074-1075 (N.D.
Iowa 2007); Jones ex rel. Jones v. Winnebago Indus. Inc., 460 F.Supp.2d 953, 963975 (N.D. Iowa 2006); Jones Distrib. Co., Inc. v. White Consol. Indus., Inc., 943 F.
Supp. 1445, 1458 (N.D. Iowa 1996); Harlan Feeders, Inc. v. Grand Labs., Inc., 881
F. Supp. 1400, 1402-04 (N.D. Iowa 1995); Curtis 1000, Inc. v. Youngblade, 878 F.
Supp. 1224, 1251-54 (N.D. Iowa 1995). However, before applying any choice-of-law
rules, I must determine whether or not there is a “true conflict” between the laws of the
nominee states, because if there is no such “true conflict,” then no choice of law is
required. See Bacon v. Liberty Mut. Ins. Co., 688 F.3d 362, 366 (8th Cir. 2012)
(concluding that no choice of law analysis is necessary where there was no “true
conflict” between Iowa and Nebraska law); Modern Equip. Co. v. Continental Western
Ins. Co., Inc., 355 F.3d 1125, 1128 n. 7 (8th Cir. 2004) (“If there is not a true conflict
between the laws of Nebraska and Iowa on the pertinent issue, then no choice-of-law is
required.”); Consul General of Republic of Indonesia v. Bill's Rentals, Inc., 330 F.3d
1041, 1045 (8th Cir. 2003) (“Before considering any issues of conflict of laws, we
must first determine whether ‘there actually is a difference between the relevant laws of
the different states.'”) (quoting Phillips v. Marist Soc'y of Washington Province, 80
F.3d 274, 276 (8th Cir.1996) (internal quotation marks omitted); Harlan Feeders, Inc.,
33

Inc., 881 F. Supp. at 1405 (noting that there must be a “true conflict” between the laws
of the possible jurisdictions on the pertinent issue before any choice of law need be
made).

Here, the Flavoring Defendants have asserted that a “true conflict” exists

between Michigan law and Iowa law. Specifically, the Flavoring Defendants assert that
Michigan has not recognized strict liability as a theory of recovery in products liability
cases.

See Phillips v. J.L. Hudson, 263 N.W.2d 3, 4 (Mich. Ct. App. 1977)

(“Michigan does not recognize ‘strict liability’ as a theory of recovery.”); Johnson v.
Chrysler Corp., 254 N.W.2d 569, 571 (Mich. Ct. App. 1977) (observing that “strict
liability has not been recognized” as a theory of recovery in the area of products
liability); see also Toth v. Yoder Co., 749 F.2d 1190, 1193 (6th Cir. 1994) (“[I]n
Michigan only two theories of recovery are recognized in products liability cases,
negligence and implied warranty, not strict liability.”); Hendrian v. Safety-Kleen Sys.,
Inc. No. 08-14371, 2012 WL 3758229, at *6 (E.D. Mich. Aug. 20, 2012) (noting that
“‘strict liability’ is not a valid products liability theory in Michigan.”). On the other
hand, Iowa recognizes claims of strict liability in products liability cases. See Scott v.
Dutton–Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009) (recognizes that strict liability
is appropriate in manufacturing defect cases, but not defective product cases); Olson v.
Prosoco, Inc., 522 N.W.2d 284, 289 (Iowa 1994) (“We believe that the correct
submission of instructions regarding a failure to warn claim for damages is under a
theory of negligence and the claim should not be submitted as a theory of strict
liability.”). The Stults have not disputed the Flavoring Defendants’ contention that the
laws of the two states are in “true conflict,” and I agree. Therefore, I turn to the
question of what state's law should apply.
2.

Choice of law rules

In a diversity action such as this, to determine what state's law applies to the the
Stults’ claims, I must use the choice-of-law rules of the forum state, in this case, Iowa.
34

See, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (the
conflict-of-laws rules to be applied by a federal court are the rules of the forum state,
because “[o]therwise the accident of diversity of citizenship would constantly disturb
equal administration of justice in coordinate state and federal courts sitting side by
side”); H & R Block Tax Servs. L.L.C. v. Franklin, 691 F.3d 941, 943 (8th Cir. 2012)
(“‘Federal courts sitting in diversity apply the choice-of-law rules of the forum state.’”)
quoting Cicle v. Chase Bank USA, 583 F.3d 549, 553 (8th Cir. 2009)); John T. Jones
Const. Co. v. Hoot General Const. Co., 613 F.3d 778, 783 (8th Cir. 2010) (“We apply
the choice-of-law rules of the forum state in a diversity action.”); Allianz Ins. Co. of
Canada v. Sanftleben, 454 F.3d 853, 855 (8th Cir. 2006) (“In a diversity case, a
district court sitting in Minnesota applies Minnesota's choice-of-law rules.”); Larken,
Inc. v. Wray, 189 F.3d 729, 732–33 (8th Cir. 1999) (“A federal court must apply the
choice of law rules of the forum state—in this case, Iowa.”). I, therefore, turn to
consideration of Iowa's conflict-of-laws rules.
As the Iowa Supreme Court has explained:
Iowa has abandoned the lex loci delicti rule in which the law
of the place of injury governs every issue in a tort action.
We now follow the Restatement [(Second) of Conflict of
Laws]'s “most significant relationship” methodology for
choice of law issues. Cameron v. Hardisty, 407 N.W.2d
595, 597 (Iowa 1987); Berghammer v. Smith, 185 N.W.2d
226, 231 (Iowa 1971). The theory behind this approach is
that rather than focusing on a single factor, “the court of the
forum should apply the policy of the state with the most
interest in the litigants and the outcome of the litigation.”
Fuerste v. Bemis, 156 N.W.2d 831, 834 (Iowa 1968).

35

Veasley v. CRST Int'l, Inc., 553 N.W.2d 896, 897 (Iowa 1996).8 More specifically
still, the court explained that, for a tort case, such as the one now before me,
The most significant relationship test is that which is
stated as follows in the Restatement (Second) Conflict of
Laws:
(1) The rights and liabilities of the parties with
respect to an issue in tort are determined by the local
law of the state which, with respect to that issue, has
the most significant relationship to the occurrence and
the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the
principles of § 6 to determine the law applicable to an
issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury
occurred,
(c) the domicile, residence, nationality, place of
incorporation, and place of business of the parties,
and

I have repeatedly recognized that the “most significant relationship” test varies
depending upon whether the claim at issue sounds in contract or tort. See, e.g.,
Pigorsch ex rel. Martin, 734 F. Supp.2d at 712 n.2; Sioux Biochem., Inc. v. Cargill,
Inc., 410 F. Supp.2d 785, 799 (N.D. Iowa 2005); Webster Indus., Inc. v. Northwood
Doors, Inc., 320 F. Supp.2d 821, 831 n. 3 (N.D. Iowa 2004); L & L Builders Co. v.
Mayer Assoc. Servs., Inc., 46 F. Supp.2d 875, 881 (N.D. Iowa 1999); Dethmers Mfg.
Co. v. Automatic Equip. Mfg. Co., 23 F.Supp.2d 974, 1002 (N.D. Iowa 1998); Harlan
Feeders, Inc. v. Grand Labs., Inc., 881 F. Supp. at 1405. While Iowa courts apply
Restatement (Second) of Conflicts of Laws § 188 to contract claims, they apply
Restatement (Second) of Conflicts of Laws § 145(2) to tort claims. Dethmers, 23 F.
Supp.2d at 1002 (contract) & 1004 (tort). Here, where only tort claims are at issue, the
“most significant relationship” test is set out in § 145(2), as stated in Veasley.
8

36

(d) the place where the relationship, if any, between
the parties is centered.
These contacts are to be evaluated according to their
relative importance with respect to the particular
issue.
RESTATEMENT (SECOND) CONFLICT OF LAWS § 145 (1971).
We recognized in Joseph L. Wilmotte & Co. v.
Rosenman Brothers, 258 N.W.2d 317, 326 (Iowa 1977),
that the situation-specific sections of the Restatement, such
as section 145, incorporate the provisions set forth in section
6 thereof. These principles are as follows:
(1) A court, subject to constitutional restrictions, will
follow a statutory directive of its own state on choice
of law.
(2) Where there is no such directive, the factors
relevant to the choice of the applicable rule of law
include
(a) the needs of the interstate and international
systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and
the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of
law,
(f) certainty, predictability, and uniformity of result,
and
(g) ease in the determination and application of the
rule to be applied.
RESTATEMENT (SECOND) CONFLICT OF LAWS § 6 (1971).
37

Veasley, 553 N.W.2d at 897–98. As § 145 states, the “contacts” listed in § 145(2)
“are to be evaluated according to their relative importance with respect to the particular
issue.” RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 145(2).

Thus, I will

determine the relative importance of the various § 145(2) “contacts,” as well as
whether those “contacts” weigh in favor of application of Michigan or Iowa law, then
consider the § 6 “factors” in light of the pertinent “contacts.”
3.

The § 145(2) “contacts”
a.

Place where injury occurred

The Flavoring Defendants argue that this factor significantly favors application
of Michigan’s law while the Stults argue that Michigan was merely a fortuitous location
for the injury and is not entitled to significant weight in the choice of law analysis.
Iowa courts have recognized that, among the § 145(2) “contacts,” the “place where the
injury occurred”—here, Michigan—has little importance, at least where the state that is
the place of injury has no other interest in the case. Cameron v. Hardisty, 407 N.W.2d
595, 597 (Iowa 1987) (finding that Iowa law, instead of Nebraska law, controlled in
automobile accident negligence case because Nebraska was merely the place of accident
and none of the parties resided in Nebraska); RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 145 cmt. e (“[T]he place of injury will not play an important role . . . when
the place of injury can be said to be fortuitous or . . . bears little relation to the
occurrence and the parties with respect to the particular issues.”). As discussed below,
Michigan has other interests in this case, and I find that, under the facts here, the place
where the injury occurred is relevant. Consequently, in determining which state has the
most significant relationship to the occurrence and the parties, I will give some weight
to the fact that the injury occurred in Michigan.

38

b.

The place where the conduct causing the injury occurred

Turning to the next § 145(2) “contact,” I must consider the “place where
conduct causing the injury occurred.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS
§ 145(2)(b). Courts have recognized in products liability cases that the place where the
allegedly defective product was designed, marketed, or manufactured is “the place
where the conduct causing the injury occurred,” and have given significant weight to
that factor in the conflict-of-laws calculus. See, e.g., McLennan v. American
Eurocopter Corp., Inc., 245 F.3d 403, 426 (5th Cir. 2001) (Texas had the most
significant relationship to a products liability claim because Texas was the place where
the conduct giving rise to his injuries occurred, where Texas was the place where the
helicopter was marketed and manufactured, and where the service bulletins and records
concerning the operation of the aircraft were sent and maintained); MacDonald v.
General Motors Corp., 110 F.3d 337, 342 (6th Cir. 1997) (the “place of conduct
causing injury” was both Tennessee, the sight of the accident, and Michigan, the state
where the defendant designed the allegedly defective van). I, likewise, conclude that,
in a products liability case such as this, in which the plaintiffs allege defective design,
or defective warnings, the place where conduct causing injury is the location where the
design, manufacture, and marketing of the allegedly defective product occurred.
The parties dispute the location of the design, manufacture, and marketing of the
alleged defective products. The Stults contend that the microwave popcorn with butter
flavorings containing diacetyl is the product at issue. The Flavoring Defendants, on the
other hand, focus on the butter flavorings containing diacetyl. Thus, I must identify the
allegedly defective product at issue here in order to determine the place where the
conduct causing injury occurred.
The Stults allege, in their Complaint, that: “At all relevant times, Defendants’
microwave popcorn and/or butter flavoring were in a defective condition in that they
39

cause human disease and injury, including, but not limited to: bronchiolitis obliterans,
respiratory disease, severe lung impairment, shortness of breath, and fatigue.”
Complaint at ¶ 14.

The Stults further allege that “the defective condition of

Defendants’ microwave popcorn and/or butter flavoring was unreasonably dangerous to
the user or consumer, including Plaintiff David Stults. . . .” Thus, the Stults’ allege
that both the microwave popcorn and the butter flavorings were defective products.
Therefore, I will consider both the microwave popcorn and the butter flavorings as the
defective products for the purposes of this motion.
Some of the microwave popcorn at issue was made in Iowa, and marketed in
both Iowa and Michigan.

The Flavoring Defendants’ butter flavorings containing

diacetyl were not designed, marketed, or manufactured in Iowa or Michigan. Thus,
taking into consideration all of the evidence in the record, and considering all of the
facts in the light most favorable to the Stults, I find that the “contact” identified in §
145(2)(b) as “the place where the conduct causing injury occurred” is neutral and does
not favor application of either Iowa or Michigan law.
c.

Place of domicile, residence, incorporation, or business

The third § 145(2) “contact” is “the domicile, residence, nationality, place of
incorporation, and place of business of the parties.”

RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 145(2)(c). There is clearly a division here between Michigan as
the Stults' residence, and New York, Bush Boake and International Flavors’s principal
place of business. As Comment e to § 145 explains,
In the case of other torts [i.e., other than reputation,
financial, or privacy torts], the importance of [the
§ 145(2)(c)] contacts depends largely upon the extent to
which they are grouped with other contacts. The fact, for
example, that one of the parties is domiciled or does
business in a given state will usually carry little weight of
itself. On the other hand, the fact that the domicile and place
40

of business of all parties are grouped in a single state is an
important factor to be considered in determining the state of
the applicable law. The state where these contacts are
grouped is particularly likely to be the state of the applicable
law if either the defendant's conduct or the plaintiff's injury
occurred there. This state may also be the state of the
applicable law when conduct and injury occurred in a place
that is fortuitous and bears little relation to the occurrence
and the parties (see § 146, Comments d-e).
Restatement (Second) of Conflict of Laws § 145, cmt. e. Here, the Stults’ residence in
Michigan “groups” with both the “place of injury” and “the place where the conduct
causing injury occurred.” See Dorman v. Emerson Elec. Co., 23 F.3d 1354, 1359 (8th
Cir. 1994) (finding the plaintiff's domicile in Canada was significant when Canada was
also the place of injury and the place where the plaintiff purchased and used the
allegedly defective product). On the other hand, none of the Flavoring Defendants’
place of business is grouped with their conduct allegedly causing injury. Therefore, the
§ 145(2)(c) “contacts” weigh in favor of Michigan.
d.

Place where the relationship was centered

The final § 145(2) “contact” is “the place where the relationship, if any,
between the parties is centered.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS §
145(2)(d). The parties agree that there was no “relationship” between the Stults and
any of the Flavoring Defendants. The Restatement expressly contemplates that there
may be no “place where the relationship is centered.” See RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 145(2)(d) (a pertinent contact is “the place where the
relationship, if any, between the parties is centered”) (emphasis added); see id., cmt. e
(considering the place where the relationship between the parties is centered “[w]hen
there is a relationship between the plaintiff and the defendant”). Thus, I conclude that
the “place where the relationship is centered” is not a relevant “contact” here, because
there simply was no “relationship” between the Stults and the Flavoring Defendants.
41

e.

Summary of the § 145(2) “contacts”

The preceding analysis shows that this case involves the following § 145(2)
“contacts”: the “place of injury” is Michigan, but that “contact” is of slight rather than
“presumptive” importance; the “place where the conduct causing the injury occurred”
is in both Iowa and Michigan since some of the microwave popcorn at issue was made
in Iowa, and marketed in both Iowa and Michigan; the Stults’ residence in Michigan
can be “grouped” with other contacts so that their contact with Michigan is of
considerably greater weight; and there is no place where the relationship between the
Stults and the Flavoring Defendants is centered.

Thus, based on the § 145(2)

“contacts,” Michigan has the dominant interest of the nominee states.
4.

The § 6 Factors

My consideration of the § 145(2) “contacts” is not the end of the conflict-of-laws
analysis, however, because as § 145(1) makes clear, the question is which state “has
the most significant relationship to the occurrence and the parties under the principles
stated in § 6,” see RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(1), and also
makes clear that the § 145(2) “contacts” are merely the “[c]ontacts to be taken into
account in applying the principles of § 6 to determine the law applicable to an issue. . .
.” Id. at § 145(2); accord Veasley, 553 N.W.2d at 898 (“[T]he situation-specific
sections of the Restatement, such as section 145, incorporate the provisions set forth in
section 6 thereof.”). Therefore, I must now consider the § 6 “principles,” at least to
the extent that I find that they are implicated here, in light of the pertinent § 145(2)
“contacts.”
The Comments to § 145 explain that “[t]he factors in Subsection (2) of the rule
of § 6 vary somewhat in importance from field to field.”

Id., cmt. b. More

specifically, the Comments explain that the § 6 factors of relatively greater importance
for a tort action are “the needs of the interstate and international systems [§ 6(2)(a)],
42

the relevant policies of the forum [§ 6(2)(b)], the relevant policies of other interested
states [§ 6(2)(c)] and particularly of the state with the dominant interest in the
determination of the particular issue, and the ease in the determination and application
of the law to be applied [§ 6(2)(g)].” Id.; cf. Veasley, 553 N.W.2d at 898 (also
discounting, in an automobile accident case, the importance of the factors in § 6(2)(d)
and (f), but finding that the factor in (g) was “of little importance” in such a case,
because the defendant would either be held liable or it would not, without any “esoteric
or complex substantive laws. . .involved”). I will consider these relatively more
important factors in turn.9
a.

Needs of the interstate and international systems

The Comments to § 6 concerning “the needs of the interstate and international
systems,” the factor identified in § 6(2)(a), provide little insight, because they are
concerned with what choice-of-law rules further the needs of the interstate and
international systems, rather than with what forum's substantive law furthers the needs
of the interstate and international systems. See RESTATEMENT (SECOND) OF CONFLICT
OF

LAWS § 6, cmt. d.

More helpful is the Iowa Supreme Court’s observation in

Veasley, that “[r]espect for interstate and international systems is maintained when the
forum state, when choosing to apply its own law, has a ‘substantive connection’ with
the issue.” Veasley, 553 N.W.2d at 899 (quoting Milkovich v. Saari, 295 Minn. 155,
203 N.W.2d 408, 417 (1973)).

Focusing on whether or not there was such a

“substantive connection,” the Iowa Supreme Court concluded in Veasley that Iowa's
owner's liability law, which was at issue in that case, “is not so abnormal that an
application of Iowa law would greatly disrupt interstate order.” Id. Similarly, here,

9

The Stults did not discuss any of the § 6 factors in their brief.

43

based on consideration of the § 145(2) “contacts” above, which reveal that Michigan is
the state with the “dominant” interest, Michigan has an appropriate “substantive
connection” with the products liability and other tort issues involved in this case so that
“[r]espect for interstate and international systems is maintained” by choosing Michigan
law as the applicable law. Id. Moreover, Michigan’s products liability and damages
laws are “not so abnormal that an application of Iowa law would greatly disrupt
interstate order” in this case, either.

Cf. id.

Therefore, this factor supports the

application of Michigan law.
b.

Relevant policies of the forum and other interested states

The second and third relatively more important § 6 factors in a tort case are “the
relevant policies of the forum,” RESTATEMENT (SECOND) OF CONFLICT OF LAWS §
6(2)(b), and “the relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue,” id. at § 6(2)(c), respectively.
Id. § 145, cmt. b (identifying these factors as ones of relatively greater importance in a
tort case); cf. Veasley, 553 N.W.2d at 898 (also discounting, in an automobile accident
case, the importance of other § 6(2) factors). The Comments to § 145 indicate that
what is of particular concern with regard to the § 6(2)(c) factor is the policies of “the
state with the dominant interest in the determination of the particular issue.” Id. at §
145, cmt. b. Thus, these two factors should logically be considered together here,
where Iowa is the forum state and Michigan is the state that I have determined has the
dominant interest in the issues in this case, based on the § 145(2) “contacts.”
My difficulty with respect to these two factors is that the parties have provided
scant authority and limited discussion regarding the policies behind the general tort laws
of either nominee states, Iowa and Michigan. An underlying policy of the tort law of
Michigan is to compensate victims

See Neal v. Miller, 778 F. Supp.2d 378, 386

(W.D. Mich. 1991) (“Under Michigan law, a tort victim is entitled to a fair and
44

adequate award of damages to compensate for all physical and mental harm proximately
caused by the tortfeasor's actions.”). Iowa shares that underlying policy. See Jones,
460 F. Supp.2d at 973. Accordingly, the § 6(2)(b) and (c) factors are neutral.
c.

Ease of determination and application of the law

The final § 6(2) factor of relatively greater significance in a tort case is the “ease
in the determination and application of the rule to be applied.”

RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 6(2)(g). I find no significant impediment to my
determining and apply either Iowa or Michigan law in this case. Consequently, this
factor is neutral.
d.

Other § 6(2) factors

The remaining § 6(2) factors are of relatively lesser importance in this tort case,
Those factors are “(d) the protection of justified expectations, (e) the basic policies
underlying the particular field of law, [and] (f) certainty, predictability, and uniformity
of result.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(d)-(f).

Having

considered each of these factors, I conclude that none of these factors weigh against the
application of Michigan law in this case.
5.

Summary

Upon consideration of the § 145(2) “contacts” and the § 6 “factors” that make
up the “most significant relationship” test for conflict-of-laws determinations under
Iowa law, I conclude that Michigan has the dominant interest in the issues presented
and that application of Michigan law is in keeping with the pertinent factors.
Therefore, the substantive legal issues in this case will be governed by Michigan law.

C.

Strict Liability Claims

As discussed above, the Flavoring Defendants have filed two motions for
summary judgment challenging the viability of the Stults’ strict liability claims. The
45

Flavoring Defendants assert that the Stults’ strict liability claims must be dismissed
because Michigan does not recognize strict liability as a theory of recovery in products
liability cases. The Flavoring Defendants’ assertion is correct. “[I]n Michigan only
two theories of recovery are recognized in products liability cases, negligence and
implied warranty, not strict liability.” Toth v. Yoder Co., 749 F.2d 1190, 1193; see
Phillips, 263 N.W.2d at 4; Johnson, 254 N.W.2d at 571; see also Hendrian, No. 0814371, 2012 WL 3758229, at *6. Therefore, the Flavoring Defendants’ joint motions
for summary judgment on the Stults’ strict liability claims are granted.

D.

Timeliness Of Claims

The Flavoring Defendants also seek summary judgment on the Stults’ negligence
and breach of implied warranty claims on the ground that those claims are time-barred
under Michigan’s three year statute of limitations. The Stults contend that their claims
are timely. Before analyzing the timeliness of the Stults' negligence and breach of
implied warranty claims, I must first resolve which state's statute of limitations should
apply—the law of Iowa, the forum state, or the law of Michigan, the state that I have
found has the most significant relationship to the parties and the occurrence.
1.

Choice of laws

As stated above, under the most significant relationship test, I find that Michigan
substantive law applies. This determination, however, does not resolve the issue of the
applicable statute of limitations. For choice of law questions involving the applicable
statute of limitations, Iowa applies the revised version of Restatement (Second) of
Conflict of Laws § 142. See Washburn v. Soper, 319 F.3d 338, 342 (8th Cir. 2003).10

10

The Stults contend that I should not use the revised version of § 142 to
(Footnote continued . . .
46

Section 142 provides:
Whether a claim will be maintained against the
defense of the statute of limitations is determined under the
principles stated in § 6. In general, unless the exceptional
circumstances of the case make such a result unreasonable:
(1) The forum will apply its own statute of limitations
barring the claim.
(2) The forum will apply its own statute of limitations
permitting the claim unless:
determine the applicable statute of limitations because the Iowa Supreme Court has not
considered that provision. They argue that Iowa law requires application of the “rightremedy” analysis embodied in the pre-1988 version of the Restatement (Second) of
Conflict of Laws §§ 142 and 143. I disagree. In the absence of an intervening decision
of the Iowa Supreme Court on the issue, the Eighth Circuit Court of Appeals’ decision
in Washburn is controlling precedent. See M.M ex rel. L.R. v. Special Sch. Dist. No.
1, 512 F.3d 455, 459 (8th Cir. 2008) (holding that district court erred in not following
binding Eighth Circuit precedent and noting that circuit precedent “is controlling until
overruled by our court en banc, by the Supreme Court, or by Congress.”); Xiong v.
Minnesota, 195 F.3d 424, (8th Cir. 1999) (holding that “district court had no power to
replace governing circuit law with its own view.”); see also Reiser v. Residential
Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (“In a hierarchical system,
decisions of a superior court are authoritative on inferior courts. Just as the court of
appeals must follow decisions of the Supreme Court whether or not we agree with
them, so district judges must follow the decisions of this court whether or not they
agree.”) (citations omitted)); Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th
Cir. 1995) (observing that district court was bound by circuit “interpretation of state
law absent a subsequent state court decision or statutory amendment that rendered this
court's prior decision clearly wrong.”); cf. AIG Centennial Ins. Co. v. Fraley-Landers,
450 F.3d 761, 767-768 (8th Cir. 2006) (“Although our circuit has never specifically
determined the binding effect of a state law determination by a prior panel, other
circuits defer to prior panel decisions absent a ‘subsequent state court decision or
statutory amendment that makes [the prior federal opinion] clearly wrong.’”) (quoting
Broussard v. Southern Pac. Transp. Co., 665 F.2d 1387, 1389 (5th Cir. 1982) (en
banc) (internal quotation marks and citation omitted)).

47

(a) maintenance of the claim would serve no
substantial interest of the forum; and
(b) the claim would be barred under the statute
of limitations of a state having a more
significant relationship to the parties and the
occurrence.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 142.
Thus, under § 142, barring “exceptional circumstances” that would make the
“result unreasonable,” the forum state’s statute of limitations applies unless: (1)
maintenance of the claim does not serve a “substantial interest” of the forum state; and
(2) the claim would be barred under “the statute of limitations of a state having a more
significant relationship to the parties and the occurrence.” RESTATEMENT (SECOND),
CONFLICT OF LAWS § 142. I take up each of these requirements in turn.
a.

Substantial interest in claims

I first consider whether Iowa has any substantial interest that would be advanced
by permitting the Stults’ claims and conclude that it does not.

The “substantial

interest” test should be conducted with some sensitivity to the results of the “most
significant relationship” test. See Stanley v. CF–VH Assocs., Inc., 956 F. Supp. 55, 59
(D. Mass. 1997); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 142 cmt.
e (“[A] claim will not be maintained if it is barred by the statute of limitations of the
state which, with respect to the statute of limitations, is the state of most significant
relationship to the occurrence and the parties under the principles stated in § 6.”).
Michigan clearly has a greater interest than Iowa in the Stults’ claims. Michigan is
where David lives and where he bought and consumed the butter flavored microwave
popcorn containing diacetyl. Michigan is the place of David’s injuries. Michigan is
also the location where David obtains treatment for his medical condition. Michigan
may also become burdened by the cost of medical treatment for David’s serious,
48

chronic condition. None of the Flavoring Defendants are corporate citizens of Iowa.
None of the butter flavorings containing diacetyl, the product at the heart of this case,
were manufactured in Iowa.

What’s more, here, Iowa has no substantial interest in

protecting its own residents from having to defend stale claims, since the Flavoring
Defendants are not residents of Iowa.
Applying Iowa’s limitations period would frustrate a substantial interest of
Michigan, the state with a closer connection with the case.

See RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 142 cmt. g (“the forum should not entertain a claim
when doing so would not advance any local interest and would frustrate the policy of a
state with a closer connection with the case and whose statute of limitations would bar
the claim”). The Restatement’s writers have recognized that “[t]he basic purpose of a
statute of limitations is to protect both the parties and the local courts against the
prosecution of stale claims.

A state has a substantial interest in preventing the

prosecution in its courts of claims which it deems to be ‘stale.’”

RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 142 cmt. f.; see Washburn, 319 F.3d at 343
(recognizing that the purpose of statute of limitations “is essentially two-fold: to protect
both defendants and courts from stale claims.”); K.E.S. v. United States, 38 F.3d 1027,
1030 (8th Cir. 1994) (noting that the purpose of statutes of limitations is “to ‘protect
defendants and the courts from having to deal with cases in which the search for truth
may be seriously impaired by the loss of evidence,’ while ‘affording plaintiffs what the
legislature deems a reasonable time to present their claims.’”) (quoting United States v.
Kubrick, 444 U.S. 111, 117 (1979)); see also Lawyers Title Ins. Corp. v. Dearborn
Title Corp., 118 F.3d 1157, 1166 (7th Cir. 1997) (“Statutes of limitations are
ordinarily for the protection of defendants[,] . . . but they also protect the courts from
the burden of adjudicating old claims.” (citations omitted)). Michigan has a three year
statute of limitations for personal injury claims and does not recognize the common law
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discovery rule. Trentadue v. Buckler Automatic Lawn Sprinkler Co., 738 N.W.2d 664,
670 (Mich. 2007).

Michigan’s substantial interest in preventing the prosecution of

stale claims would be frustrated by application of Iowa’s limitations period because it
would impose the common law discovery rule in direct contravention of Michigan’s
statutory scheme. 11
Thus, I conclude that Iowa does not have a substantial interest in the Stults’
claims and turn to the issue of whether the Stults’ claims are barred under Michigan
law.
b.

Michigan statute of limitations

The Michigan statute of limitations for products liability claims is three years.
MICH. COMP. LAWS § 600.5805(10). A products liability claim “accrues at the time
the wrong upon which the claim is based was done regardless of the time when damage
results.” Id. at § 600.5827. As noted above, the Michigan Supreme Court has held
that, under Michigan’s statute, no discovery rule exists to toll the limitations period.
See Trentadue, 738 N.W.2d at 670. Michigan’s common law discovery rule provided
that “a claim does not accrue until a plaintiff knows, or objectively should know, that
he has a cause of action and can allege it in a proper complaint.”

Id.

Prior to

The Stults’ claim that Iowa has a substantial interest in seeing that dangerous
products are not shipped into the state is totally disconnected from the interests behind
Iowa’s statute of limitations or application of the discovery rule. As noted above, the
purpose of Iowa’s statute of limitations is to protect “both defendants and courts from
stale claims.” Washburn, 319 F.3d at 343. The discovery rule allows the tolling of the
statutory period of limitations when a plaintiff could not have reasonably discovered the
elements of a cause of action within the limitations period. See Swartzendruber v.
Schimmel, 613 N.W.2d 646, 650 (Iowa 2000). Application of Iowa’s discovery rule
does not further Iowa’s interest in preventing dangerous products from being imported
into Iowa because it does nothing to prevent or limit such importation.
11

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Trentadue, Michigan courts applied the discovery rule to cases governed by § 600.5827
by using a definition of “accrues” that incorporated a discovery requirement. See,
e.g., Thomas v. Process Equip. Corp., 397 N.W.2d 224, 227 (Mich. 1986) (“In
determining when a cause of action accrues for purposes of a statute of limitations, the
general rule is that a cause accrues only when all the necessary elements have occurred
and can be alleged in a proper complaint.”). Trentadue overruled these cases.
Trentadue, 738 N.W.2d at 672.
Application of Michigan Compiled Law § 600.5827 and Trentadue, here,
requires the conclusion that the Stults’ negligence and breach of implied warranty
claims are time-barred. The relevant statutory period for products liability claims is
three years and that period began to accrue when the wrong occurred or, more specific
to this case, when David ate microwave popcorn containing the Flavoring Defendants’
butter flavorings containing diacetyl. See Smith v. Stryker Corp., No. 294916, 2011
WL 445646, at *1 (Mich. Ct. App. Feb. 8, 2011) (holding in products liability case
that the “wrong occurred” during plaintiff’s use of the product).
It is undisputed that the only brand of microwave popcorn David ate that
contained any of the Flavoring Defendants’ butter flavorings containing diacetyl was
ConAgra’s Orville Redenbacher Butter.

The Flavoring Defendants stopped selling

butter flavorings containing diacetyl, including the Orville Redenbacher flavorings, by
January 2005. The summary judgment record does not disclose the last time David ate
microwave popcorn containing butter flavorings with diacetyl. Even assuming, for the
sake of argument, that David purchased and ate some of the last Orville Reddenbacher
Butter microwave popcorn containing the Flavoring Defendants’ butter flavorings
containing diacetyl, the Stults’ negligence and breach of implied warranty claims
accrued, collectively, at some point in 2005. Therefore, the Stults’ August 24, 2011,
negligence and breach of implied warranty claims are time barred under Michigan law.
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2.

Conclusion

Thus, I find under Restatement § 142 that Michigan’s three year statute of
limitations applies to the Stults’ claims. For the reasons discussed above, I find that the
Stults’ negligence and breach of implied warranty claims are time barred under
Michigan law.

Therefore, the Flavoring Defendants’ joint motion for summary

judgment as to the Stults’ negligence and breach of implied warranty claims is also
granted.

E.

Loss Of Consortium Claim

Since I have granted summary judgment on the Stults’ strict liability, negligence,
and breach of implied warranty claims, Barbara’s loss of consortium claim fails as a
matter of law, as it is entirely derivative. See Wesche v. Mecosta Cnty. Rd. Comm’n,
746 N.W.2d 847, (Mich. 2008) (Weaver, J. concurring in part and dissenting in part)
(“A claim for loss of consortium is a separate legal claim for damages suffered not by
the injured party, but by a spouse, parent, or child who claims damages for the loss of
the injured party's society and companionship. It is a derivative claim in that it does
not arise at all unless the injured party has sustained some legally cognizable harm or
injury.”). Therefore, the Flavoring Defendants' joint motion for summary judgment as
to Barbara’s loss of consortium claim is also granted.
III.

CONCLUSION

Accordingly, for the reasons discussed above, it is ordered:
1.

Defendants International Flavors and Bush Boake’s Joint Motions For

Partial Summary Judgment On Plaintiffs’ Strict Liability Claim are granted.

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2.

Defendants International Flavors and Bush Boake’s Joint Motions For

Partial Summary Judgment As To Counts II-IV Based On Michigan’s Three-Year
Statute Of Limitation is granted.
3.

Defendants International Flavors and Bush Boake’s Joint Motion For

Partial Summary Judgment Regarding Failure To Warn is denied as moot.
4.

Defendants International Flavors and Bush Boake’s Joint Motion For

Summary Judgment on Plaintiffs’ Breach of Implied Warranty Claim is denied as moot.
Judgment shall enter accordingly.
IT IS SO ORDERED.
DATED this 24th day of December, 2013.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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