United States District Court, S.D. Indiana, Indianapolis Division
GREGORY AREGOOD, JR., et al. Plaintiffs,
GIVAUDAN FLAVORS CORPORATION, et al. Defendants.
ORDER ON GIVAUDAN MOTIONS FOR SUMMARY JUDGMENT BASED
ON THE STATUTE OF LIMITATIONS
J. McKINNEY, JUDGE
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.
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).
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).
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
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.
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.
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.
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.
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).
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.
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.
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.”
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.
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.
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.
FACTS SPECIFIC TO PLAINTIFF SHARON SMITH
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.
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.
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,
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.
testified that her symptoms, beginning with shortness of
breath, became noticeable sometime after 2006. Dkt. No. 446
received the letter from Dr. Lockey in 2008 that discussed
the overall findings of the study. Dkt. No. 470 at 6.
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.
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 ...