United States District Court, S.D. Indiana, Indianapolis Division
GREGORY AREGOOD, JR., et al. Plaintiffs,
GIVAUDAN FLAVORS CORPORATION, et al. Defendants.
ORDER ON GIVAUDAN MOTION FOR SUMMARY JUDGMENT AS TO
J. McKINNEY, JUDGE.
Defendant Givaudan Flavors Corporation
(“Givaudan”) has moved for summary judgment on
the claims brought by all Plaintiffs because (1) Plaintiffs
cannot prove that Givaudan's conduct was the proximate
cause of their injuries, rather ConAgra failed in its duty to
protect Plaintiffs, Gregory Aregood, Jr., Rick Arndt, Sandy
Arndt, David Black, Luther Daniel Cole, Rick Ellis, Rhonda
Gross, Michele Hedden, Leslie Hinman, Robert Holbrook, Kathy
Howard, Michael Hudak, Marvin Jeffrey, Grace Jones, Kent
Korniak, Shirley Legrand, Stephen Lilly, Bob Maciejewski,
Jr., Janalu Mckay, Randi Nagel, Laura Riley, Sharon Smith,
William Tompkins, Brian Vallee, Dave Walker, Rebecca Yoder,
Linda Zickmund (collectively, “Plaintiffs”), from
harm; (2) Count II for failure to warn is barred by
Indiana's sophisticated intermediary doctrine; (3) Count
I for strict liability and Count III for common law
negligence are not viable under the Indiana Products
Liability Act (“IPLA”); and (4) Plaintiffs'
claim for punitive damages fails with their underlying claims
(the “global MSJ”). Dkt. No. 455. For the reasons
stated herein, the Court GRANTS in part and DENIES in part
Givaudan's global MSJ.
provide no citations to any evidence to dispute the facts
presented by Givaudan. See generally, Dkt. No. 36.
Rather, Plaintiffs set forth additional material facts that
they assert create a genuine issue for trial, or entitle them
to summary judgment on Givaudan's learned intermediary
defense. Id. at 4-21. With that proviso, the
undisputed facts and the facts in the light most favorable to
the Plaintiffs follow. See Estate of Cole v. Fromm,
94 F.3d 254, 257 (7th Cir. 1996).
worked in various capacities at a ConAgra Snack Foods Group
(“ConAgra”) microwave popcorn packaging facility
located in Rensselear, Indiana (the “Plant”).
Dkt. Nos. 457 at 1. Plaintiffs allege that their exposure to
butter flavors that contained diacetyl, which were sold to
ConAgra by Givaudan, caused them to develop respiratory
GIVAUDAN'S KNOWLEDGE REGARDING BUTTER FLAVORS
many years Givaudan, or its predecessors-in-interest, has
been a member of the Flavor and Extract Manufacturers
Association (“FEMA”), a trade association for
flavoring companies that promotes food flavorings. Dkt. No.
466 at 6. In 1985, FEMA provided Tastemaker, Givaudan's
predecessor-in-interest, access to a service called Flavor
and Fragrance Ingredient Data Sheet (“FFIDS”)
that contained information regarding hazards of flavoring
chemicals. Id. The FFIDS for diacetyl stated that
upon inhalation, diacetyl was “harmful” and
“capable of producing systemic toxicity.”
Id. There is no evidence, however, that FEMA or any
other organization had specifically linked diacetyl or butter
flavors to respiratory illness at this time. Dkt. No. 481 at
1986, Givaudan was a party to two lawsuits brought by
employees of International Bakers Services
(“IBS”) who alleged that they suffered from lung
disease from exposure to hundreds of flavoring chemicals at
their plants. Id. at 6; Dkt. No. 481 at 7. Diacetyl
was among the 46 chemicals that those plaintiffs' experts
opined combined to cause the adverse health effects.
Id. at 6; Dkt. No. 481 at 7. However, Givaudan was
dismissed from the cases prior to the IBS plaintiffs'
experts ever offering this opinion. Dkt. No. 481 at 7.
1992, Tastemaker/Givaudan learned that one of its former
employees, Janice Meenach Irick, who worked at its plant near
Cincinnati, Ohio, had died from chronic lung disease. Dkt.
No. 466 at 7; Dkt. No. 481 at 8-9. In fact, the County
Coroner requested “all reports and health records
concerning Ms. Irick's disability” from
Tastemaker/Givaudan. Dkt. No. 466-10. Around that same time,
Tastemaker/Givaudan became aware of cases of bronchiolitis
obliterans, or other chronic lung diseases, in at least two
other workers at the same plant, Joey Wallace and Clifford
Walker. Dkt. No. 466 at 7; Dkt. No. 481 at 8-9. However, the
company did not know what, if anything, at its plant was
causing some of its employees to have respiratory problems,
but it did start to investigate possible causes. Dkt. No. 481
1992, Tastemaker/Givaudan required its personnel to wear
goggles and a full face respirator when working with liquid
diacetyl. Dkt. No. 466 at 7; Dkt. No. 466-12. Specifically,
Tastemaker/Givaudan's Operational Procedures required:
“Any room containing diacetyl in a liquid state must be
labeled respirator required . . . . Whenever material is in
any tank, lids must be closed. If ventilation (mechanical) is
not connected to tank or is unavailable, a respirator must be
worn at all times while in the room.” Dkt. No. 466-12
at 2. The procedures suggested that chemical goggles were
required when working in a room that contained powdered
diacetyl or powder formed from liquid diacetyl. Id.
Tastemaker/Givaudan had created a task force to investigate
the lung injuries at its plant. Dkt. No. 466 at 8; Dkt. No.
481 at 9-11. Diacetyl was one of many chemicals used at the
Tastemaker/Givaudan plant that the company investigated. Dkt.
No. 466 at 8; Dkt. No. 481 at 9-11. But, at that time, there
was no publicly available toxicity data about diacetyl or
information connecting diacetyl to respiratory illness. Dkt.
No. 481 at 9-11.
sheets from Tastemaker/Givaudan during the 1990s did not
include warnings regarding use of respirators when using
products containing liquid diacetyl or products that
contained powdered diacetyl, such as butter flavors. Dkt. No.
466 at 8. The MSDSes stated that in well ventilated areas,
respirators were not normally required. Id.
Consistently with its internal policy regarding working with
materials that contained powdered diacetyl, the butter flavor
MSDSes suggested that protective gloves and chemical goggles
should be worn. Id.
1992 and 1996 at least 8 employees of Tastemaker/Givaudan
were diagnosed with bronchiolitis obliterans. Dkt. No. 466 at
9. Two of these diagnoses were confirmed in 1994 by Dr.
Stuart Brooks, an occupational medicine specialist retained
by Tastemaker/Givaudan. Id. Dr. Brooks studied the
problem with Givaudan, but concluded that none of the
ingredients used at Givaudan were known to cause
bronchiolitis obliterans. Dkt. no. 481 at 10-11. Although Dr.
Brooks recommended further investigation to determine the
cause and prevent other employees from suffering similar
fates, Givaudan fired him before he could perform that work.
Dkt. No. 466 at 9.
than contacting the National Institute for Occupational
Safety and Health (“NIOSH”) to investigate the
outbreak of the disease, in 1994 Givaudan hired specialists
from the University of Cincinnati to conduct an
investigation. Id. at 9-10. These specialists
included Roy McKay, a pulmonary toxicologist; James Lockey,
M.D., an occupational medicine physician; and Susan Pinney,
Ph.D., an epidemiologist. Id. at 10. Each specialist
was required to sign a nondisclosure and confidentiality
role to design and carry out a pulmonary function
surveillance program, McKay was frustrated by his inability
to be frank with employees at Givaudan about the dangers of
noncompliance with his recommended respirator policy.
Id. at 10-11. He explained that he “was
limited into the type of language and wording [he could] use
to describe the potential respiratory hazard that may
exist.” Id. at 11. For example, an industrial
hygienist “reminded [McKay] never to say the word
bronchiolitis obliterans to any of the workers . . . .”
Id. Further, copies of presentations to workers had
to go through public relations and management to ensure they
were happy with them. Id. McKay also testified that
he was not free to fully describe the severity of the
respiratory condition the workers could develop if they
failed to comply with the respiratory problem. Id.
at 12. McKay felt that he could have done more to protect
workers if Givaudan had invested more money into his
surveillance and protection programs. Id. at 12-13.
Moreover, McKay was very frustrated that when he identified
problems with respirators, or otherwise, he was told
“tell me about it but don't put it in writing. It
was just different. It was a different way of operating . . .
.” Id. at 13.
Lockey testified that he was concerned about what was
happening at the Givaudan facility and could have done more
to help, but the company never asked him to proceed further.
Id. at 14; Dkt. No. 466-24 at 240-42. At the end of
his study, Dr. Lockey believed that the respiratory issues
were related to exposure to acetaldehyde. Dkt. No. 481 at
10-11. He never made a connection between diacetyl and the
Givaudan worker's respiratory complaints. Id. at
10. If it had not been for Givaudan's confidentiality
agreements, Dr. Lockey would have published his results. Dkt.
No. 466 at 14.
September 1995, researchers had identified several chemicals
that could be causing the respiratory issues, including
bronchiolitis obliterans, one of which was diacetyl. Dkt. No.
466 at 14; Dkt. No. 466-26.
Stuart Brooks, an occupational medicine specialist who
Givaudan also hired to help determine the cause of
respiratory complaints at its plant, concluded that none of
the ingredients used at Givaudan were known to cause
bronchiolitis obliterans. Dkt. No. 481 at 10-11.
1997, Givaudan anonymously informed FEMA, the members-only
trade association, that employees of a member company had
been diagnosed with an undetermined respiratory illness. Dkt.
No. 466 at 14; Dkt. No. 466-6 at 26-29. Apparently, this
prompted FEMA to hold a workshop in March 1997 to focus
members on respiratory safety practices. Dkt. No. 466 at
14-15; Dkt. No. 466-6 at 27-28; Dkt. No. 466-28. The
invitation to the workshop warned that: “Exposure to
respiratory irritants without proper safety procedures may
cause severe permanent injury.” Dkt. No. 466 at 15. At
the workshop, Cecile Rose, M.D., an occupation medicine
physician and John Martyny, a certified industrial hygienist,
both from National Jewish Health Center, educated the
attendees on lung function, occupational lung disease
(including bronchiolitis obliterans), and causes of lung
disease including irritant chemicals; diacetyl was not
amongst them. Dkt. No. 466 at 15; Dkt. No. 466-30. The
materials included NIOSH's Health Hazard
Evaluation. Dkt. No. 466-30.
believed that confidentiality regarding its formulas and any
potential respiratory issue at its plants was necessary
because it “did not want to give [its] competitors some
information that they could use to make noises about, you
know, our facility possibly being an unreliable source of
supply, give them a competitive advantage . . . it might hurt
[its] reputation.” Dkt. No. 466 at 23.
the period between 1994 and 2000, Tastemaker, then Givaudan,
sold hundreds of thousands of pounds of butter flavors to
ConAgra's Marion, Ohio, plant. Dkt. No. 466 at 15-16.
Givaudan's salesperson for ConAgra, Peter Angelo,
testified that he was unaware that workers in one of the
butter flavor plants had been diagnosed with bronchiolitis
obliterans in the early 1990s. Id. at 16. Further,
he was unaware that the company initiated an investigation
into lung disease at the plan, that an outbreak of disease
among workers at the plant had been suspected, or that
pulmonary function testing had been performed on
Givaudan's employees at the plant. Id. Angelo
stated that he was unaware of any danger associated with
diacetyl or using butter flavors that contained diacetyl
without ventilation. Id. Angelo claimed that he was
the only way for ConAgra to know this information, other than
through an MSDS. Id.
the period between October 2001 and December 2003, Givaudan
sold nearly 41, 000 pounds of butter flavors to the Plant.
Dkt. No. 466 at 19. During this period Givaudan made only one
change to its MSDS for butter flavors; it still warned that
inhalation would cause “[i]rritation of throat &
lungs.” Id. at 19-20. The MSDS that
accompanied shipments in or after July 2003, also stated,
“In well ventilated areas respiratory protection is not
normally required. In confined or poorly ventilated areas or
if material is toxic by inhalation, the use of approved
respiratory protection is recommended.” Dkt. No. 466-41
at 4. “Ventilation meeting acceptable standards [was]
recommended.” Id. For spills or leaks of the
butter flavor, the 2003 MSDS recommended use “of
‘NIOSH' approved respiratory protection . . .
.” Id. Further, the 2003 MSDS specifically
stated that “good industrial hygiene practices should
be followed in order to avoid inhalation and contact with
skin and eyes.” Id. at 5.
2005 to 2007, during which Givaudan sold over 100, 000 pounds
of butter flavors to ConAgra, Givaudan's MSDS sheets made
similar statements. See Dkt. No. 466 at 20-21.
Plaintiffs contend that Givaudan's policy to refuse to
disclose the chemical formula for its ...