Thiele v. BASF Corporation et al

Filing 265

MEMORANDUM OPINION AND ORDER denying Givaudan's 238 Motion for Summary Judgment. Signed by Chief Judge Leonard T Strand on 1/6/2021. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JASON THIELE,
Plaintiff,

No. C18-4081-LTS

vs.
MEMORANDUM
OPINION AND ORDER

BASF CORPORATION, et al.,
Defendants.

___________________________
This matter is before me on a motion (Doc. 238) for summary judgment by
defendant Givaudan Flavors Corporation (Givaudan). Defendants Sensient Flavors and
DSM Food Specialties USA, Inc. have joined in the motion. Doc. 253, 255. Plaintiff
Jason Thiele has filed a response (Doc. 245) and Givaudan has filed a reply (Doc. 252).
Oral argument is not necessary. See Local Rule 7(c).
I.

PROCEDURAL HISTORY

Thiele filed his complaint on September 12, 2018, alleging diversity jurisdiction
under 28 U.S.C. § 1332. He asserts claims of negligence (Count I), strict product liability
– design, manufacturing and inherent defects (Count II), strict product liability – failure
to warn (Count III) and strict product liability – failure to instruct (Count IV). Doc. 1.
Givaudan argues Thiele’s claims are barred by Iowa’s two-year statute of limitations.
Trial is scheduled to begin September 13, 2021.
II.

SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with

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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.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
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 verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249–50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248–49. The party moving
for entry of summary judgment bears “the initial responsibility of informing the 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). Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or otherwise, designate specific facts showing that there
is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.
2005). The nonmovant must show an alleged issue of fact is genuine and material as it
relates to the substantive law. If a party fails to make a sufficient showing of an essential
element of a claim or defense with respect to which that party has the burden of proof,
2
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then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at
322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587–88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376–77 (8th Cir. 1996).
III.

RELEVANT FACTS

The following facts are undisputed for purposes of this motion unless otherwise
noted:
Thiele filed this lawsuit on September 12, 2018. He worked for American Pop
Corn Company (APC) from March 2004 to May 2011. Thiele was hired by APC to be
a mixer, which required him to hand-pour flavorings into 300- to 500-gallon mixing tanks
containing heated oil. Doc. 238-1 at 1-2; Doc. 245-1 at 1. The parties dispute the extent
of knowledge Thiele had about the risks his job posed to his respiratory health. He admits
he was aware that his work had the “potential” for “risks” but states he did not believe
these were greater than at any other workplace and that APC’s safety precautions would
protect him from any potential risks. Doc. 245-1 at 2 (citing Doc. 238-3 at 41-42).
Givaudan states Thiele has repeatedly admitted that he was aware of a respiratory risk

3
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associated with flavors and diacetyl that could affect his ability to breathe. Doc. 252-1
at 2 (citing Doc. 238-3 at 30, 33, 41-43).1
APC had a respiratory protection program that required its employees to wear
respiratory protection during certain job duties. Thiele was trained on this program when
he started with APC in 2004.2 He acknowledged his understanding of APC’s mandatory
respirator policy by signing the Mixing Room Protocol form dated December 17, 2004.

1

Thiele’s deposition testimony reflects various admissions to his awareness of the risks
associated with his work at APC:
Q: And why – why was it necessary for you to wear respiratory protection when
working in the oil room at APC?
A: So we wouldn’t be breathing in the flavoring.
Q: Why was breathing in the flavoring hazardous or unhealthy when you were in
the mixing room at APC?
A: Because it was bad for you, I guess.
Q: Was that something that you were told or educated about when you started at
APC?
A: I believe I was.
….
Q: And one of the things APC told you that might be hazardous for you to inhale
were flavoring chemicals in the mix room?
A: I believe so, yes.
Q: So you’d agree with me that you were aware of that risk or aware of that
hazard when you started at APC?
[Objection to form of question]
A: Yes.
Doc. 238-3 at 30. See also Doc. 238-3 at 35 (“Q: Do you recall being made aware of a chemical
called diacetyl in 2004? A: I believe I was, because that was when I first started. Q: What were
you told about diacetyl? A: That it’s in the flavoring and could be harmful.”); Doc. 238-3 at 4243 (“Q: But specifically, you had been made aware of dangers associated with flavor products
and diacetyl specifically early, early on at your time at APC? A: Yeah. They gave us the safety
precautions and stuff. Q: Right. They told you what the risk was, and they told you what the
proper way to try to avoid was? A; I believe so, yes.”).
2

The parties dispute the extent of this training. See Doc. 245-1 at 3-4. Thiele admits he
completed “initial training” on “supplied air respirators” and was given information.

4
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He understood that respirators were required so employees would not breathe in the
flavoring. Doc. 238-1 at 7; 245-1 at 4.
Thiele was fitted for a cartridge-style respirator in March 2004 when he started
working at APC as a mixer. The parties dispute whether Thiele was required to always
wear his respirator in the mixing room (and/or the oil room).3 Thiele states he was not
required to wear his respirator during “emergencies” such as spills of heated flavoring
and during end of the week cleanings when he would clean out the flavoring tanks with
hot water. Doc. 245-1 at 4. Thiele was aware that failure to comply with the respirator
policy could result in discipline and possibly job termination. Thiele states he was never
disciplined or terminated for failure to wear a respirator or follow the safety protocols.
Id.
Thiele took quarterly pulmonary function tests (PFTs) administered by an onsite
nurse at APC. Thiele denies knowing the results of these tests but understood that the
“cutoff line” for whether he could return to work was “80 percent.” Id. Thiele’s FEV14
during his May 17, 2005, PFT was 79.6 percent of the predicted value. Doc. 238-1 at
8. Subsequent tests in 2005 and 2006 were above 80 percent. Doc. 245-1 at 5. Thiele
states the first time he was informed that his PFT went below 80 percent was in May
2007. Id. At that time, Thiele was not allowed to return to the mixing room while his
PFT was below 80 percent. Doc. 245-1 at 2. As a result, Thiele was sent to Craig
Bainbridge, M.D., a pulmonologist. Dr. Bainbridge examined Thiele and performed
additional testing.

3

The parties’ filings are not clear as to whether the oil room and the mixing room are separate
rooms at APC or are simply interchangeable names for the same room. There is also occasional
reference to the ingredient room, which may or may not be the same room as the oil room and/or
the mixing room. Whether these labels refer to one room, two rooms or three rooms at APC
has no impact on the analysis set forth herein. For the sake of simplicity, I will generally use
the term “mixing room” in this order.
4

FEV1 is the amount of air a person can force from his or her lungs in one second.

5
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The parties dispute the details of what Dr. Bainbridge told Thiele about his
diagnosis and its cause, but it is undisputed he told Thiele he had some breathing issues.
Thiele asserts, based on his own deposition testimony, that Dr. Bainbridge told him his
breathing issues were not related to APC and he did not know the cause. Id. Givaudan
asserts, based on Dr. Bainbridge’s treatment notes and letters to Greg Hoffman, General
Plant Manager at APC, that Dr. Bainbridge told Thiele he was “not sure of the etiology.”
Doc. 252-1 at 7. The parties also dispute whether Dr. Bainbridge told Thiele that other
substances outside of his occupation could be causing the decrease in lung function. Doc.
245-1 at 3. Thiele states he relied on Dr. Bainbridge’s opinion and did not discover he
had lung disease related to his work at APC until he was diagnosed with flavoring-related
bronchiolitis obliterans syndrome by Charles A. Pue, M.D., on November 19, 2017.5
Id.
Givaudan states APC informed Thiele at the beginning of his employment that
breathing in the flavorings was hazardous. Doc. 238-1 at 2. It contends APC specifically
warned Thiele that the chemical diacetyl could be harmful to his lungs and that he was
told there was a chance he could be exposed to chemicals that could detrimentally affect
his ability to breathe. Id. at 3. Givaudan states APC instructed Thiele on how to avoid
or mitigate the risks associated with flavors by using respirators. Id. at 4. The parties
dispute when Thiele was removed from the mixing room – whether in October 2007 or
during 2009. Doc. 252-1 at 9.

5

Givaudan denies this statement about Thiele’s reliance on Dr. Bainbridge and argues it does
not constitute a material fact because any such reliance would not have been reasonable.
Givaudan points to Thiele’s knowledge about his instances of non-compliance with APC’s
respirator policy and the extensive training APC provided regarding the alleged link between
exposure to flavors and breathing problems. Givaudan argues that because Thiele was on notice
that flavors at APC were a possible cause of his breathing problems and Dr. Bainbridge could
not determine the cause of Thiele’s breathing problems, Thiele had a continuing duty to
investigate his claims. See Doc. 252-1 at 8-9 (citing cases).

6
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Thiele learned that another APC mixer, Kevin Remmes, had developed breathing
problems, but Thiele states he did not know the nature of those problems or why Remmes
had them. Id.

Givaudan argues this is not a material fact based on all the other

information that put Thiele on notice of his own breathing problem and its possible cause.
Doc. 252-1 at 10. Thiele noticed that another coworker in the mixing room had a cough
but did not discuss it with the co-worker or know why the co-worker had a cough. Doc.
245-1 at 5. At some unstated time, Thiele became aware of Remmes’ lawsuit against
Givaudan and other flavor manufacturers but states he did not know the extent of the
claims. Id. at 6.
The parties dispute whether Thiele was entirely compliant with APC’s respiratory
protection program.6 Doc. 245-1 at 6. Thiele provided some examples of when he was
required to wear respiratory protection but did not do so, such as to retrieve an item from
the mixing room (like a batch sample), to grab a cart of oil or to clean up spills of powder
and liquid flavors. He also entered the mixing room without respiratory protection on
approximately a monthly basis to address “emergency” situations, such as when another
employee left a valve open on the oil tank. There were times when Thiele entered the
mixing room without a respirator when he could not avoid inhaling. There were also
instances when he breathed in butter flavoring in the air in the hallway outside of the
mixing room while the ventilation system was not working properly. Thiele felt he was
also exposed to flavoring products when he was cleaning containers and scoops in the
washroom. Doc. 238-1 at 11-15; Doc. 245-1 at 6.
Thiele first noticed breathing difficulties around March 2005. The first symptom
was shortness of breath, which occurred while he was at work at APC. This was the
first time he had ever experienced shortness of breath. Thiele recalls an instance when

6

This is primarily a dispute about the extent of APC’s policy or perceived exceptions to the
policy rather than Thiele’s actions, which are undisputed. See Doc. 238-1 at 11-15; Doc. 2451 at 6.

7
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he experienced shortness of breath at work and a co-worker asked if he was okay and
needed to sit down. In 2005 or 2006, Thiele began noticing it was becoming more
difficult to exercise.

Thiele does not recall telling anyone at APC that he was

experiencing shortness of breath. Doc. 238-1 at 15-17; Doc. 245-1 at 6-7. Thiele
developed a cough around 2005 or a little later. He also developed chest tightness while
working in the mixing room at APC.7 He experienced chest tightness that would persist
for hours after leaving work. Doc. 238-1 at 18; Doc. 245-1 at 7. Aside from Dr.
Bainbridge, Thiele did not see a medical professional for these issues. Thiele states that
going to the doctor is not something he usually did. Doc. 238-1 at 18-19; Doc. 245-1 at
7. Thiele was a social smoker from approximately 1995 to 2013. He did not consider
his smoking to be a risk to his health. Doc. 238-1 at 20; Doc. 245-1 at 8.
Thiele first considered contacting a lawyer related to his breathing issues in 2017,
when his breathing issues worsened. Thiele was seen by Dr. Pue, who is not one of
Thiele’s treating physicians.

Dr. Pue diagnosed Thiele with “flavoring related

bronchiolitis obliterans syndrome.” Doc. 238-1 at 20. As of February 19, 2020, Thiele
had never spoken to any of his treating physicians about bronchiolitis obliterans. Doc.
238-1 at 19-20; Doc. 245-1 at 7-8.
IV.
A.

ANALYSIS

Parties’ Arguments
Givaudan argues Thiele’s claims are barred by Iowa’s two-year statute of

limitations because there is no genuine issue of material fact that Thiele had knowledge
of his injury and its cause, or was on inquiry notice, more than two years before he filed
his lawsuit.

Its argument is based on (1) Thiele’s training at APC and his

acknowledgment of APC’s respiratory protection program, (2) the pulmonary symptoms
he began experiencing in March 2005 and (3) his diminished lung function documented

7

Thiele worked in the mixing room from 2004 through 2009.

8
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by PFT results in May 2007, which caused him to be temporarily removed from the
mixing room and for APC to refer him to Dr. Bainbridge, a pulmonologist. Givaudan
contends that under Iowa’s discovery rule, the latest possible time that Thiele was on
notice of a possible injury was May 2007 when his PFT results were below 80 percent
and he was sent to a pulmonologist.
Thiele argues he was not aware of any compensable injury until he was diagnosed
in 2017 with “flavoring related bronchiolitis obliterans syndrome.”

He states he

experienced a gradual progression of symptoms such that his condition constitutes a pure
latent injury. He argues that even if his mild symptoms should have put him on inquiry
notice, Dr. Bainbridge’s representation that his breathing issues were not related to his
work at APC excused any failure to further investigate.
Givaudan argues that a medical diagnosis is not required to put a plaintiff on
inquiry notice of an injury as long as the plaintiff knew a problem existed. It contends
Thiele’s shortness of breath symptoms in 2005 and decreased lung function tests in 2007
put him on inquiry notice and that Dr. Bainbridge’s representations do not toll the statute
because Dr. Bainbridge did not definitively rule out Thiele’s work at APC as a cause.
B.

Applicable Law
The parties agree that Thiele’s claims are subject to Iowa’s two-year statute of

limitations for personal injury claims.8 See Iowa Code § 614.1(2) (imposing a two-year
limitation on claims “founded on injuries to the person or reputation . . .”). “Under the
discovery rule, commencement of the limitations period is delayed ‘until the plaintiff
knows or in the exercise of reasonable care should have known both the fact of the injury
and its cause.” K&W Elec., Inc. v. State, 712 N.W.2d 107, 116 (Iowa 2006) (citation

8

I agree with the parties that Iowa law applies. See Great Plains Trust Co. v. Union Pac. R.R.
Co., 492 F.3d 986, 992 (8th Cir. 2007) (“A federal court sitting in diversity jurisdiction applies
the statute-of-limitations of the forum.”).

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omitted). “[O]nce a plaintiff learns information that would alert a reasonable person of
the need to investigate, the plaintiff ‘is on inquiry notice of all facts that would have been
disclosed by a reasonably diligent investigation.’” Skadburg v. Gately, 911 N.W.2d 786,
794 (Iowa 2018). See also Kraft v. St. John Lutheran Church, 414 F.3d 943, 947 (8th
Cir. 2005) (“[d]iscovery of the act or omission occurs when the party knows of facts
sufficient to put a person of ordinary intelligence and prudence on inquiry which, if
pursued, would lead to the discovery of facts constituting the basis of the cause of
action.”); Estate of Montag v. T H Agric. & Nutrition Co., 509 N.W.2d 469, 470 (Iowa
1993) (“[T]he statute of limitations [on personal injury claims] begins to run when a
plaintiff first becomes aware of facts that would prompt a reasonably prudent person to
begin seeking information as to the problem and its cause.”). “Issues of due diligence
and constructive knowledge depend on inferences drawn from the facts of each particular
case . . . . When conflicting inferences can be drawn from the facts, summary judgment
is inappropriate.” Foster v. Johns-Manville Sales Corp., 787 F.2d 390, 393 (8th Cir.
1986) (citation omitted).
Givaudan has the burden to prove its limitations defense and Thiele has the burden
to establish any exception to the limitations period, such as application of the discovery
rule. See Ranney v. Parawax Co., Inc., 582 N.W.2d 152, 154 (Iowa 1998). Both parties
cite Ranney as supporting their position. In that case, the plaintiff was diagnosed with
Hodgkin’s disease in 1985.

He initially suspected that his condition was causally

connected to his work with toxic chemicals. Ranney, 582 N.W.2d at 153-54. He
consulted with various physicians who were unwilling to make a causal finding. Id. at
154.

In 1987 and 1988, Ranney’s wife was in law school and read cases about

occupational diseases caused by chemical exposure. Id. They discussed the possibility
that Ranney’s Hodgkin’s disease was caused by his exposure to toxic materials at the
workplace. Id. In 1991, Ranney saw a doctor who confirmed Ranney’s theory of
causation.

Id.

Ranney filed his workers’ compensation case in 1992.

Id.

The

commissioner granted summary judgment in favor of the employer’s workers’
10
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compensation carrier based on the statute of limitations. This ruling was affirmed on
judicial review by the district court.
The Iowa Supreme Court also affirmed the ruling.

The Court noted it was

undisputed that Ranney had actual knowledge of the nature and seriousness of his
condition more than two years prior to filing his lawsuit. Id. at 155. The issue was
whether he had imputed knowledge of its probable compensable nature. Id. The Court
rejected Ranney’s claim that he suffered from a latent injury, noting that he was diagnosed
with Hodgkin’s disease in 1985. Id. The record also showed he had suspected his disease
was caused by workplace exposure to chemicals and by 1987 or 1988, he learned of its
possible compensable nature from his wife. The Court stated, “once a claimant knows
or should know that his condition is possibly compensable, he has the duty to investigate.”
Id. The Court rejected Ranney’s argument that inquiry notice began when his physician
informed him of the causal connection. Id. at 155-56 (“the lack of an expert opinion
supporting causation does not prevent commencement of the statute of limitations under
the principle of inquiry notice.”) It addressed the fact that Ranney’s physicians would
not commit one way or another as to the cause of his Hodgkin’s disease, stating “[t]he
fact that Ranney’s actual investigation was unsuccessful in confirming his suspicions does
not toll the statute of limitations.” Id. Specifically, it stated, “[h]is inability to find
expert support for his theory of causation within that time does not prevent the limitations
period from running.” Id. at 157.
Notably, the Court distinguished Bressler v. Graco Children’s Prods., Inc., 43
F.3d 379 (8th Cir. 1994) and Baines v. Blenderman, 223 N.W.2d 199 (Iowa 1974),
superseded by statute, 1975 Iowa Acts ch. 239, § 26, as recognized in Langner v.
Simpson, 533 N.W.2d 511, 516-17 (Iowa 1995). Id. at 157, n.2. In Bressler, the
plaintiffs were told their child died of SIDS, rather than by suffocation, and the Eighth
Circuit found a factual issue precluding summary judgment as to whether the plaintiffs
conducted a reasonably diligent investigation based on the medical opinion regarding the
cause of death. Bressler, 43 F.3d at 381. In Ranney, by contrast, the Iowa Supreme
11
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Court noted Ranney was not misled by physicians into believing his chemical exposure
did not cause his Hodgkin’s disease.
In Baines, the plaintiff relied on the statement of his doctor that the loss of vision
in his right eye “was an unusual but temporary postoperative side effect” of his back
surgery. The court held the trier of fact could find plaintiff was “excusably unaware” of
his cause of action until the date he first learned of “the cause and true nature of his
injury.” Baines, 223 N.W.2d at 202. In Ranney, and again by contrast, the Iowa
Supreme Court noted Ranney knew the nature of his injury when he was diagnosed with
Hodgkin’s disease in 1985.
Thiele argues that his situation, too, is unlike Ranney’s. He states he was never
told he had a diagnosed lung disease while he was working at APC, but was only advised
of unspecified problems that, he was told, were not related to his work at APC. Doc.
245 at 15-16. He states he was not aware that he had an actual injury, and that it might
be compensable, until he was diagnosed with bronchiolitis obliterans in November 2017.
Id. Givaudan argues Ranney supports its position because the Court held that failure to
obtain medical confirmation of the cause of a condition was insufficient to create a factual
issue on the applicability of the discovery rule once the plaintiff knew of the possible
connection between his disease and employment. See Doc. 252 at 4, n.5.
I will take Ranney and the cases cited therein into account when considering
whether there is a factual issue that Thiele was on inquiry notice regarding the fact of his
injury and its cause more than two years prior to filing suit. See K&W Elec., Inc., 712
N.W.2d at 116 (Iowa 2006).
C.

Notice of Fact of Injury
Givaudan argues it is undisputed that Thiele knew or should have known the fact

of his injury in 2005 when he first began experiencing symptoms. I disagree. The
evidence establishes that Thiele began experiencing shortness of breath in March 2005,
followed by a cough and chest tightness, but it appears that his symptoms were so mild
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that neither he nor APC took any action. Moreover, while Thiele also had a PFT below
80 percent in May 2005, it is not clear from the record whether APC informed Thiele of
these results or took any action at that time. A reasonable jury could conclude there was
no reason for Thiele to have known that a problem existed at that time.
By 2007, however, the undisputed facts establish that Thiele knew or should have
known that he had a respiratory problem. It is undisputed (1) that Thiele knew his job
involved risks related to breathing issues9 and (2) that he had continuing pulmonary
symptoms and abnormal PFT results that led APC to temporarily remove him from the
mixing room and refer him to a respiratory specialist. Nothing in Dr. Bainbridge’s notes
or Thiele’s deposition testimony suggests that Dr. Bainbridge told Thiele he did not have
a respiratory problem. To the contrary, Thiele acknowledged that Dr. Bainbridge told
him he had a breathing problem. See Doc. 245-3 at 17 (“All I remember him telling me
was that I had some problems but it wasn’t related from Jolly Time, but he didn’t know
what the cause was.”); Id. (“He just, like I said, dumbed it down for me basically, that
I had some breathing issues, but it wasn’t caused by Jolly Time and he didn’t know what
the cause was.”).
Thiele did not need to know the extent of the problem or have a formal diagnosis
to be on inquiry notice of the fact of his injury at that time. See Franzen v. Deere & Co.,
377 N.W.2d 660, 662 (Iowa 1985) (“the duty to investigate does not depend on exact
knowledge of the nature of the problem that caused the injury. It is sufficient that the
person be aware that a problem existed. One purpose of the inquiry is to ascertain its
exact nature.”); Adkison v. G.D. Searle & Co., 971 F.2d 132, 136 (8th Cir. 1992) (“[A]
doctor’s diagnosis of a causal connection is not necessary for the limitations period to
start running.”). Based on the summary judgment record, there is no genuine issue of

9

While the extent of Thiele’s knowledge is disputed, it is apparent from the record, including
Thiele’s own admissions in his deposition, that he had some knowledge of the potential risks of
his job and that these risks were respiratory in nature. See supra at 4, n.1.

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material fact that Thiele knew or should have known by the end of 2007 that he was
suffering from a respiratory injury.
D.

Notice of Cause of Injury
For Givaudan and the defendants who joined in Givaudan’s motion to be entitled

to summary judgment, they must also establish there is no genuine issue of material fact
that Thiele knew or should have known the cause of his injury more than two years before
he filed suit. See K&W Elec., Inc., 712 N.W.2d at 116 (“Under the discovery rule,
commencement of the limitations period is delayed ‘until the plaintiff knows or in the
exercise of reasonable care should have known both the fact of the injury and its cause.”).
Thiele argues he did not know of the cause until 2017, when he was diagnosed by Dr.
Pue, because he had relied on Dr. Bainbridge’s representation that Thiele’s breathing
issues were not related to his work at APC. See Doc. 245-3 at 18 (“That doctor telling
me that it wasn’t related to American Pop Corn, I kind of took his word for it.”); Doc.
238-3 at 55 (“for the longest time I didn’t know anything because, like that Dr.
Bainbridge said, you know, I didn’t know what was wrong . . . .”).
The record concerning Dr. Bainbridge’s treatment of Thiele consists of the
following:
On May 18, 2007, Dr. Bainbridge wrote a letter to Greg Hoffman, General Plant
Manager at APC, stating:
Thank you for allowing me to see Jason Thiele. As you know, he has given
me permission to write to you concerning his respiratory condition. As I
read the records that you kindly supplied, his FEV1 has decreased from
March of 2004, recorded at 4.82 liters, down to 4.22 on 05/01/2007. I did
repeat his functions and measured some other parameters today in the
office, and his FEV1 was 4.04.
I am not sure of the etiology. Certainly, he has been well protected in the
mixing room for the past three years but, given this decrement in pulmonary
function, I have asked that he not be placed back in the mixing room at least
until I can evaluate him again in six weeks. I understand that that is what
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has been done anyway. I have also given him some directions such that
perhaps we can ameliorate other substances that are not associated with his
occupation, which could cause a decrease in pulmonary function. I will be
reviewing him again in six weeks’ time.
Doc. 245-3 at 28. Dr. Bainbridge wrote Hoffman again on July 2, 2007, stating:
Thanks for allowing me to see Jason again. His pulmonary functions are
stable. He does have some mild obstructive airways disease. Again, I am
not sure of the etiology. He has been well protected in the mixing room
and I think you should allow him to return to the mixing room at this point
under careful supervision. I have recommended that he continue your
excellent protection that you have established for the mixing room function.
I am going to see him again in 2 months for a repeat pulmonary function
study. If there is any significant deterioration, I think he will need to
permanently be removed from the mixing room. However, for now I have
no proof that the mixing room environment has affected him at all.
Doc. 245-3 at 27. Dr. Bainbridge’s note dated November 21, 2007, states:
This is a gentleman with some mild obstructive airways disease. The
patient has given me permission to send a copy of this to the American
Popcorn Company, Attention: Mr. Greg Hoffman. Reference is made to
my evaluation on 5/18/2007. This gentleman is involved in the mixing
room, and he has had some obstructive airways disease. American Popcorn
and Dave Sitzman have kindly supplied his longitudinal record of
PULMONARY FUNCTION STUDIES, starting on 03/04/2004. His last
FUNCTION was done 10/02/2007, which showed an FEV1 of 4.14, 75.9%
of predicted. FVC is 6.26, 91% of predicted. The FEF25-75% is 2.58,
45%. There is no significant improvement in flow after bronchodilator.
Total lung capacity is 7.37, 82%. DLCO is 40.2, 111% of that predicted,
suggesting no loss of pulmonary capillary bed. Impression is obstructive
airways disease, mild; not significantly changed from his previous
PULMONARY FUNCTION STUDY done here in July.
He has really gotten along quite well. No wheezing. He is able to do his
work. He really does not have any particular complaint. We have not
treated him with any medication.
....
IMPRESSION: Obstructive airways disease, mild and stable.

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PLAN: I will allow him to return to the mixing room. He does have
protective respiratory equipment. I would like to see him again in about
four months and, at that time, would like to review his SPIROMETRY.
Doc. 245-3 at 25. It is not clear whether Dr. Bainbridge communicated to Thiele the
information in his treatment notes and letters to Hoffman. Thiele relies on his deposition
testimony about what Dr. Bainbridge told him. See Doc. 245-3 at 18 (“That doctor
telling me that it wasn’t related to American Pop Corn, I kind of took his word for it.”).
Iowa’s discovery rule “is based on a theory that a statute of limitations should not
bar the remedy of a person who has been excusably unaware of the existence of [a] cause
of action.” Franzen, 377 N.W.2d at 662. The Iowa Supreme Court and Eighth Circuit
(in applying Iowa law) have found that due diligence in investigating the cause is a
question of fact when plaintiffs are given a medical opinion about the cause of injury.
See Baines, 223 N.W.2d at 202-03 (concluding in medical malpractice action that trier
of fact could find plaintiff was excusably unaware of his cause of action based on doctor’s
opinion that loss of vision was just a temporary postoperative side effect, rather than the
result of malpractice); Bressler, 43 F.3d at 381 (concluding whether plaintiffs conducted
a reasonably diligent investigation was a jury question because medical opinion assured
plaintiffs that child had died of a natural cause unrelated to the cradle swing and there
were no obvious dangers or warnings but, on the other hand, a reasonable jury could
conclude plaintiffs should have investigated further based on the child’s position in the
swing and its irregular motion despite the doctor’s opinion); cf. Ranney, 582 N.W.2d at
157, n.2 (distinguishing Bressler because “Ranney was not misled by his physicians into
believing that his exposure to chemicals did not cause his Hodgkin’s disease. Rather, as
Ranney testified, the physicians he consulted would not commit themselves, one way or
the other.”) (emphasis in original).

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Here, there is a genuine issue of material fact as to whether Thiele conducted a
reasonably diligent investigation as to the cause of his injury.10 When viewing the facts
in the light most favorable to Thiele, a reasonable jury could find both (1) that Dr.
Bainbridge told Thiele his breathing issues were not related to his work at APC and (2)
that it was reasonable for Thiele to rely on Dr. Bainbridge’s representation.

See

Hildebrandt v. Allied Corp., 839 F.2d 396, 399 (8th Cir. 1987) (concluding it could not
be said as a matter of law that plaintiff had knowledge of the cause of his medical
problems when he was told by the company doctor that there was no correlation between
his symptoms and his exposure to chemicals at work); Childs v. Haussecker, 974 S.W.2d
31, 45 (Tex. 1998) (“When medical experts consistently reject a layperson's suspicions
concerning the cause of symptoms by expressly refuting an occupational connection or
by suggesting exclusively causes that are not work-related, a fact question ordinarily
arises about what reasonably should be known by the plaintiff and what further action the
plaintiff should have taken, even if the plaintiff knows that co-workers suffer from similar
symptoms.”). Dr. Bainbridge is a pulmonary specialist who had access to multiple PFT
tests for Thiele and did not object to APC allowing Thiele to continue working in the
mixing room with the protective equipment supplied by APC. A reasonable jury could
conclude Thiele was justified in failing to conduct further investigation based on Dr.
Bainbridge’s purported representation and that he did not know, nor should he have
known, the cause of his injury more than two years prior to filing suit.
Of course, a reasonable jury could also conclude Dr. Bainbridge did not eliminate
APC as a cause of Thiele’s breathing problems but instead told Thiele he was unsure of
the etiology. It could also conclude that Thiele was not justified in relying on Dr.
10

The record does not support Thiele’s claim of fraudulent concealment, as he cites no evidence
that he was prohibited from conducting a reasonably diligent investigation based on any
affirmative act by defendants. See Roth v. G.D. Searle & Co., 27 F.3d 1303, 1308 (8th Cir.
1994) (“Iowa courts apply the fraudulent concealment doctrine if a plaintiff shows: (1) an
affirmative act by the defendant to conceal the cause of action, and (2) that the plaintiff diligently
attempted to discover his or her cause of action.”).

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Bainbridge’s opinion because Thiele did not disclose the fact that he had sometimes
entered the mixing room without a respirator and that Thiele should have investigated
further based on all the information he had concerning the nature and risks associated
with his job. See Baysinger v. Schmid Prods. Co., 514 A.2d 1, 4 (Md. 1986) (concluding
that whether a reasonably prudent person should have undertaken a further investigation
after two doctors told her they were unsure about the cause of her illness was a matter
about which reasonable minds could differ making summary judgment inappropriate);
Ranney, 582 N.W.2d at 157 (“[h]is inability to find expert support for his theory of
causation within that time does not prevent the limitations period from running.”). 11
Nonetheless, when viewing the record in the light most favorable to Thiele, there
are genuine issues of material fact as to (1) what Dr. Bainbridge told him (or did not tell
him) about the cause of his breathing problems and (2) based on that representation,
whether Thiele conducted a reasonably diligent investigation into the cause of his
breathing problems such that he knew or should have known of the cause more than two
years prior to the time he filed suit. These are issues for the jury to resolve. As such, I
cannot conclude that Thiele’s action is barred by Iowa’s two-year statute of limitations as
a matter of law.

11

While the Ranney Court found the statute of limitations barred Ranney’s claim, the Court
concluded the limitations period began running when Ranney learned the possible cause from his
wife’s legal studies. See Ranney, 582 N.W.2d at 156 (“We agree with the industrial
commissioner that by 1987 or 1988, at the latest, Ranney had enough information to trigger his
duty to investigate.”). It rejected Ranney’s argument that his physicians’ inconclusive opinions
as to the cause of his Hodgkin’s disease created a factual issue on the applicability of the
discovery rule. Id. Ranney is distinguishable for two reasons. First, Ranney was searching for
a medical opinion to confirm what he already suspected was the cause. Second, when viewing
the facts in the light most favorable to Thiele, Dr. Bainbridge provided an opinion eliminating a
possible cause, rather than refusing to say one way or another, making this case more like
Bressler and generating a fact issue as to whether it was reasonable for Thiele to rely on that
alleged opinion based on all the information available to him.

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V.

CONCLUSION

For the reasons set forth herein, Givaudan’s motion (Doc. 238) for summary
judgment is denied.
IT IS SO ORDERED.
DATED this 6th day of January, 2021.

__________________________
Leonard T. Strand, Chief Judge

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