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Aregood v. Givaudan Flavors Corp.

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

October 18, 2017

GREGORY AREGOOD, JR., et al. Plaintiffs,



         Pursuant to the Court's Order dated June 1, 2017, the remaining defendant, Givaudan Flavors Corporation (“Givaudan”), has moved for summary judgment on the Plaintiffs'[1] claim that they were injured because of Givaudan's defective design of butter flavors sold to Plaintiffs' employer ConAgra Snack Foods Group (“ConAgra”). [Dkt. No. 572.] For the reasons stated herein, the Motion for Summary Judgment is GRANTED.



         On June 1, 2017, summary judgment was entered in favor of Givaudan on Counts I (strict liability - defective condition), II (failure to warn), and III (common law negligence) as to all Plaintiffs. Dkt. No. 570. All that remained thereafter was Plaintiffs' claim alleging defective design. See, generally, Compl. At the time, the jury trial as to the Stage 1 Plaintiffs was set to begin on Monday, July 17, 2017, Dkt. No. 539; and the final pretrial conference for same was set for Friday, June 16, 2017, Dkt. No. 554; and Givaudan's Motions in Limine (collectively, the “Limine motions”) were fully briefed. In considering the Limine motions, the Court determined that at least one of them, Givaudan's Sixth Motion in Limine (directed to the absence of evidence or opinions regarding the alleged defective design or unreasonably dangerous condition of Givaudan's butter flavors), could be dispositive of Plaintiffs' remaining claim if it were granted. See Dkt. No. 571. Therefore, in order to give Plaintiffs the opportunity to address whether a material question of fact existed on all the elements of their defective design claim in light of Givaudan's Sixth Motion in Limine, the Court ordered summary judgment briefing on that claim. Id.

         In its opening brief, Givaudan not only relied upon its Sixth Motion in Limine, it claimed that its First (directed to evidence or opinions based on a National Institute for Occupation Safety and Health (“NIOSH”) air sampling method), Second (directed to evidence or opinions of general causation), and Third (directed to evidence or opinions of Charles Pue, M.D., on specific causation) Motions in Limine, if granted, would also be dispositive of Plaintiffs' remaining claim. See, generally, Dkt. No. 573. In response, Plaintiffs re-asserted their arguments on their failure to warn claim, affirmatively seeking reconsideration of that claim; and then argued the merits of all of the Motions in Limine raised by Givaudan. See Dkt. No. 583 at 19-54.[2] Because we conclude that Givaudan's Sixth Motion in Limine is dispositive of Plaintiffs' remaining claim, we decline to address the other Limine Motions.


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

         Plaintiffs worked in various capacities at a ConAgra microwave popcorn packaging facility located in Rensselear, Indiana (the “Plant”). Dkt. No. 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.

         Epidemiology is the study of the distribution and determinants (such as causes and risk factors) of health-related states and events in specified populations. Dkt. No. 573 at 3-4. Occupational medicine addresses the detection, prevention, and treatment of diseases caused by hazards to which workers are exposed in their workplaces. Id. at 4.

         Allen J. Parmet, M.D., M.P.H. (“Dr. Parmet”), is a board certified occupational medicine physician whom Plaintiffs designated as an expert. Id. Dr. Parmet is not a food scientist or a flavor chemist, and he never designed a butter flavor. Id. at 5. Dr. Parmet testified that if adequate engineering controls or respirators or proper processes are implemented, butter flavors that contain diacetyl can be used safely. Dkt. No. 573-1, Parmet Dep. at pp.121-22.

         Robert J. Harrison, M.D., M.P.H. (“Dr. Harrison”), is board certified in preventative medicine and occupational medicine and practices in the field of epidemiology; Plaintiffs identified Dr. Harrison as an expert. Dkt. No. 573 at 4. He has been treating patients for 30 years and has seen thousands of workers with occupational lung disease. Id. Dr. Harrison has no background or training in food science and is not qualified to design a butter flavor. Id. Dr. Harrison testified that he is not offering an opinion on whether the butter flavor that Givaudan supplied to ConAgra was defective in design. Dkt. No. 585-15, Harrison Dep. at p.81. He further testified that butter flavors that contain diacetyl could be used safely if the production process were completely enclosed. Id. at p.80.

         Charles A. Pue, M.D. (“Dr. Pue”), also designated by Plaintiffs as an expert, is not a food scientist or a flavor chemist and has never designed a butter flavor. Dkt. No. 573 at 5. He has never performed any analysis of butter flavors or diacetyl because that is beyond the scope of his practice. Id.

         Givaudan designated David Bratton (“Bratton”) as an expert witness. Dkt. No. 583 at 14. Plaintiffs reserved the right to use expert testimony from any expert witness designated by Givaudan. Id. Bratton is the most senior flavor chemist at Givaudan, and in 1992, he began to make artificial butter flavors there. Id. Bratton testified that during his time at Givaudan developing butter flavors, he had no knowledge that there were workers with lung disease in its plants or that experts claimed that diacetyl could cause severe lung disease. Id. at 15. There were no toxicologists working in Bratton's lab to help create butter flavors. Id. Bratton testified that ...

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