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Aregood v. Givaudan Flavors Corp.

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

June 1, 2017

GREGORY AREGOOD, JR., et al. Plaintiffs,



         Remaining 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.


         Plaintiffs 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).

         Plaintiffs 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 injuries. Id.


         For 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 8.

         In 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.

         In 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 at 9.

         In 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.

         By 1993 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.

         MSDS 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.

         Between 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.

         Rather 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 agreement. Id.

         In his 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.

         Dr. 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.

         In 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.

         Dr. 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.

         In 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.[2] Dkt. No. 466-30.

         Givaudan 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.

         During the period between 1994 and 2000, Tastemaker, then Givaudan, [3] 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.

         During 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.

         From 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 ...

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