United States District Court, S.D. Indiana, Indianapolis Division
GREGORY AREGOOD, JR., et al. Plaintiffs,
GIVAUDAN FLAVORS CORPORATION, et al. Defendants.
ORDER ON GIVAUDAN'S MOTION FOR SUMMARY JUDGMENT
ON PLAINTIFFS' DESIGN DEFECT CLAIM
EVANS BARKER, JUDGE.
to the Court's Order dated June 1, 2017, the remaining
defendant, Givaudan Flavors Corporation
(“Givaudan”), has moved for summary judgment on
the Plaintiffs' 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
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.
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. Because we conclude that Givaudan's
Sixth Motion in Limine is dispositive of
Plaintiffs' remaining claim, we decline to address the
other Limine Motions.
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).
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.
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.
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.
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
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.
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 ...