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Aregood v. Givaudan Flavors Corp.

United States District Court, S.D. Indiana, Indianapolis Division

April 4, 2017

GREGORY AREGOOD, JR., et al. Plaintiffs,
v.
GIVAUDAN FLAVORS CORPORATION, et al. Defendants.

          ORDER ON GIVAUDAN MOTIONS FOR SUMMARY JUDGMENT BASED ON THE STATUTE OF LIMITATIONS

          LARRY J. McKINNEY, JUDGE

         Pursuant to the staged case management in this action, the remaining defendant, Givaudan Flavors Corporation (“Givaudan”) has moved for summary judgment on the claims brought by Plaintiffs Sharon Smith (“Smith”), Stacy Arndt (“Arndt”), Laura Riley (“Riley”) and Robert Holbrook (“Holbrook”) (collectively, “Stage 1 Plaintiffs”), based on the statute of limitations defense (the motions collectively, “SOL Motions”). Dkt. Nos. 438, 432, 436 & 434. For the reasons stated herein, the Court DENIES the SOL Motions.

         I. FACTUAL BACKGROUND[1]

         The undisputed facts and the facts in the light most favorable to the Stage 1 Plaintiffs follow. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996).

         The Stage 1 Plaintiffs worked in various capacities at a ConAgra Snack Foods Group (“ConAgra”) microwave popcorn packaging facility located in Rensselear, Indiana (the “Plant”). Dkt. Nos. 446 at 3 (Smith); 443 at 10 (Arndt); 445 at 3 (Riley); & 444 at 3 (Holbrook). All of the Stage 1 Plaintiffs allege that their exposure to butter flavors that contained diacetyl, which were sold to ConAgra by Givaudan, caused them to develop bronchiolitis obliterans. Dkt. Nos. 470-8 (Smith); 467-11 (Arndt); 469 at 9 (Riley); 468 at 10 (Holbrook).

         On October 3, 2001, the Wall Street Journal published an article entitled “Butter Flavoring May Pose a Risk to Food Workers” (“Wall Street Journal Article”). See Dkt. No. 446 at 2-3. The article stated that the National Institute for Occupational Safety and Health (“NIOSH”) had “alerted health departments all over the country to begin working with popcorn plants to limit workers' exposure to components in artificial-butter flavors. In particular, the agency is warning about diacetyl, a chemical compound that smells and tastes like butter and is the main ingredient in many butter flavors.” Dkt. No. 439 at 7. On the evening the article was published, Jack McKeon (“McKeon”), President of ConAgra's Snack Food Division, sent an email announcement to all ConAgra employees regarding the Wall Street Journal Article. Id. at 6. The announcement reassured employees that ConAgra's microwave popcorn was “completely safe to manufacture and consume.” Id. It also distinguished the process used at the plant discussed in the Wall Street Journal Article from that at the Plant, particularly with respect to the “slurry production.” Id. Further, the announcement stated, “There is adequate ventilation in each [of our] facilit[ies] to insure that the air in the facility is exhausted several times an hour. In the facilities where slurry production is in a contained room, there is a separate continuous air ventilation system for that room.” Id. The email also informed employees that ConAgra had agreed to participate in NIOSH's ongoing study of the matter. Id.

         On December 27, 2002, McKeon prepared another memorandum to all employees that detailed NIOSH's investigation of airborne diacetyl levels and the health of ConAgra employees at several ConAgra facilities. Dkt. No. 438 at 4-5. The December 2002 memorandum further advised that ConAgra was “developing procedures for annual spirometry testing (breathing test) for all employees as part of [its] overall comprehensive safety program.” Id. at 5. It was ConAgra's practice to distribute this type of memoranda at employee meetings and to post it on the safety board in the Plant. Dkt. No. 446 at 4.

         In September 2003, and August 2004, dozens of ConAgra employee filed lawsuits against Givaudan and other flavor manufacturers in Ohio alleging that exposure to butter flavors during their employment with ConAgra caused them to develop respiratory injuries. Id. at 4. Also in Ohio, hundreds more ConAgra employees filed such lawsuits in 2007, 2008, and 2010. Id. at 4-5. Plaintiffs' lawyers in those cases are the same as those of the Stage 1 Plaintiffs here and the asserted claims are very similar if not identical. Id. at 5.

         Following the NIOSH investigation of the ConAgra plant in Marion, Ohio, the company participated in a program to monitor the health of employees at the Plant and implemented new policies to reduce employee exposure to butter flavors. Dkt. No. 446 at 5. By 2006, ConAgra had enclosed the batch deck at the Plant, which is where butter flavors were added to batch tanks, and mixed with oil and salt. Id. At the same time the batch deck was enclosed, ConAgra implemented a policy that made respirators mandatory for any employee entering the batch deck area. Id. Rensselaer Plant manager, Ken Dobin (“Dobin”), held a meeting with each work crew to discuss this new policy. Id. at 5-6. ConAgra's management claims that the employees were told at the meeting that the new mandatory respirator policy was being implemented as a safety precaution because of the NIOSH investigation at ConAgra's Marion, Ohio, plant. Id. at 6.

         Richard Arndt, who worked at the Plant and is Plaintiff Arndt's husband, testified that the employees at the Plant were told when the batch deck was enclosed that the Plant was becoming “diacetyl free.” Dkt. No. 446 at 7.

         Around this time, ConAgra conducted air sampling studies at the Rensselaer Plant. Dkt. No. 446 at 6. Smith, Arndt and Riley were asked to wear air monitors during work to facilitate the investigation. Id. (Smith); Dkt. No. 443 at 7 (Arndt); Dkt. No. 445 at 5 (Riley).

         Further, ConAgra began to monitor the respiratory health of its employees. Dkt. No. 446 at 6. Beginning in 2005 and continuing through 2011, employees at the Plant, including all Stage 1 Plaintiffs, underwent yearly pulmonary function testing. Id. (Smith); Dkt. No. 443 at 6 (Arndt); Dkt. No. 444 at 7 (Holbrook); Dkt. No. 445 at 6 (Riley). ConAgra hired Dr. Lockey, from the University of Cincinnati College of Medicine (“UC”) to conduct the study of its employees' respiratory health. Dkt. No. 446 at 6.

         When the breathing tests were administered, Plant employees were asked to fill out questionnaires regarding any respiratory symptoms they experienced and whether such symptoms occurred or became worse while they were at work. Id. Questions included: “Does your chest feel tight or is your breathing difficult?”; “When you are at work, does your chest feel tight?”; and “Are there any chemicals, substances, job activities or particular areas of the plant that seem to result in chest tightness or breathing difficulty?” Id. Plant employees, including all Stage 1 Plaintiffs, were sent letters from UC that provided information regarding the results of their individual breathing tests. Id. at 6-7 (Smith); Dkt. No. 443 at 8 (Arndt); Dkt. No. 444 at 8 (Holbrook); Dkt. No. 445 at 6 (Riley). In addition, all the Plant employees who participated in the pulmonary medical surveillance program were sent notice of the findings from Dr. Lockey. Dkt. No. 446 at 7. The letter explained that Plant employees' participation in the study allowed UC “to reach some conclusions regarding the potential health consequences associated with exposure to butter flavorings with diacetyl at the ConAgra microwave popcorn facilities.” Id. at 7-8. The letter reported:

This study of employees producing microwave popcorn demonstrated no significant impact of diacetyl exposure on lung function values in the large majority of workers. However, the findings indicate that some employees within certain groups who worked as mixers in the slurry rooms prior to use of respirators starting in April 2003 have decreases in the amount of air they can blow out of their lungs in one second, referred to as FEV1. These same data from mixers indicates that exposure to butter flavoring with diacetyl in the slurry room prior to April 2003 can result in airway obstruction. . . . Similar findings in regard to diacetyl exposure were not discovered in any other groups of employees at the production facilities.
* * *
. . . Overall, the results indicate that working with butter flavoring with diacetyl at the concentrations historically found within the slurry rooms prior to respirator use at the ConAgra facilities represented a potential risk for loss of lung function. This health finding was not seen in employees who worked outside the slurry room area.

Id. at 8; Dkt. No. 470-5.

         Sometime in 2007 or 2008, ConAgra stopped using butter flavors that contained diacetyl at the Plant. Dkt. No. 446 at 7. When this change was made, ConAgra included language on its popcorn packages that advertised “no diacetyl added.” Id.

         In a letter dated February 15, 2010, Dr. Lockey advised the study participants that the findings had been published in the July 2009 issue of the European Respiratory Journal. Dkt. no. 446 at 8. The February 2010 letter enclosed an abstract of the article, which was entitled, “Airway Obstruction Related to Diacetyl Exposure at Microwave Popcorn Production Facilities, ” (“Journal Abstract”) Id. The Journal Abstract begins: “Obstructive lung diseases including bronchiolitis obliterans have been reported among microwave popcorn production employees. Butter flavourings [sic] including diacetyl have been associated with these findings.” Id.

         Richard Arndt testified that as late as 2012, none of the workers at the Plant who were experiencing breathing problems asked him if diacetyl or even butter flavors were causing their health problems. Dkt. No. 470 at 5-6.

         In 2012, NIOSH published a pamphlet directed to healthcare providers that advised on how to recognize, respond and report butter flavoring related lung disease. Dkt. No. 469-10.

         A. FACTS SPECIFIC TO PLAINTIFF SHARON SMITH

         Sharon Smith was employed at the Plant since 1998. Dkt. No. 446 at 3. Smith admits that she saw a copy of McKeon's October 3, 2001, memorandum and the attached Wall Street Journal article, both of which were posted on the bulletin board in the break room at the Plant. Id. However, she cannot remember when she saw the article, how long it was up, or that she had any discussion about it with any of her co-workers or anyone else at the Plant. Dkt. No. 470 at 3.

         Smith does not recall seeing McKeon's December 27, 2002, memorandum. Dkt. No. 470 at 4. She testified that she was unaware that ConAgra had concerns about diacetyl or that the breathing tests she took were to determine whether or not diacetyl was causing lung injury. Id. at 4-5.

         Smith does recall attending a meeting with Dobin when employees were told that respirators were mandatory in the batch deck area; that employees who were not trained to use a respirator were not permitted in that area; and that violation of the mandatory respirator rule would result in termination. Dkt. No. 446 at 5-6. However, Smith had no understanding of why the batch deck area was closed and never related it to diacetyl, diacetyl in butter flavors, or NIOSH's investigation at the Marion, Ohio, plant. Dkt. No. 470 at 5, 6.

         In 2005, Smith received a letter from UC stating that she had restriction in her lung function; the letter suggested that she seek further evaluation at the Arnett Clinic in Lafayette, Indiana. Dkt. No. 446 at 7. Additional pulmonary function tests at the Arnett Clinic showed that Smith had low lung capacity; Smith received another letter from UC that explained these results. Dkt. No. 446 at 7.

         Smith testified that her symptoms, beginning with shortness of breath, became noticeable sometime after 2006. Dkt. No. 446 at 7.

         Smith received the letter from Dr. Lockey in 2008 that discussed the overall findings of the study. Dkt. No. 470 at 6.

         Smith admits that she received Dr. Lockey's 2010 letter and the Journal Abstract. Dkt. No. 446 at 8. She testified further that the letter raised a question in her mind as to whether the abnormal results of her pulmonary function tests may have been related to her work with butter flavors at the Plant. Id. However, Smith never worked in the slurry room. Dkt. No. 470 at 7.

         Smith read another letter dated January 18, 2011, from Dr. Lockey, regarding her medical surveillance evaluation. Dkt. No. 446 at 8. The letter stated, in pertinent parts:

Your pulmonary medical questionnaire on 10/18/10 indicated that when working with salt at work you can develop tingling, burning, or stinging of the eyes, nose or throat, frequent sneezing or difficulty ...

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