Blood v. Givaudan Flavors Corp.
| Citation | 606 F.Supp.2d 972 |
| Decision Date | 09 March 2009 |
| Docket Number | No. C07-142-MWB.,C07-142-MWB. |
| Parties | Christopher BLOOD and Wendy Blood; Jeff Brockmeyer and Ann Brockmeyer; Dean Dauber and Tanya Dauber; and Sue Kohl, Individually and on behalf of all others similarly situated, Plaintiffs, v. GIVAUDAN FLAVORS CORPORATION, a Delaware Corp., f/k/a Givaudan-Roure Corp., and also as Givaudan-Roure Flavors Corp. and also f/k/a Tastemaker Corp., and also as Fries & Fries, Inc., and also as Mallinckrodt Foods & Flavors, Inc. and also as Mallinckrodt Flavor & Fragrances, Inc., and as a partner in the partnership Tastemaker; Firmenich Incorporated, a Delaware Corporation; Symrise Inc., a New Jersey Corporation; and John Doe Defendants 1-20, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Christopher R. Miller, Donald H. Loudon, Jr., J'Nan C. Kimak Judy, Kenneth Blair McClain, Scott A. Britton-Mehlisch, Scott B. Hall, Steven Edward Crick, Humphrey, Farrington & McClain PC, Independence, MO, Dennis M. McElwain, Smith & McElwain, Sioux City, IA, for Plaintiffs.
Allison Nancy Shue, Christine Friar, Daniel Ryan Deherder, Deanne L. Miller, Michael T. Zarro, Roger K. Smith, Morgan, Lewis & Bockius LLP, V. Thomas Meador, Los Angeles, CA, Kevin M. Donovan, Morgan, Lewis & Bockius, LLP, Angela Marie Catanach, April Marie Byrd, Brian R. Decker, David M. Haendler, James Michael Berger, Sean P. Wajert, Dechert LLP, Philadelphia, PA, Stephen J. Holtman, Simmons Perrine PLC, Brenda K. Wallrichs, J. Michael Weston, Lederer, Weston & Craig, PLC, Richard A. Stefani, Gray, Stefani & Mitvalsky, PLC, Cedar Rapids, IA, Bruce W. Clark, Dechert LLP, Princeton, NJ, Daniel B. Carroll, Drinker Biddle & Reath, LLP, Florham Park, NJ, Michael P. Pulliam, Steven M. Selna, Drinker Biddle & Reath LLP, San Francisco, CA, Angela R. Karras Neboyskey, David E. Kawala, Swanson, Martin & Bell, Chicago, IL, for Defendants.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND .......................................... 975
A. Procedural Background ............................................. 975
B. Factual Background ................................................ 975
II. LEGAL ANALYSIS ...................................................... 982
A. Rule 12(b)(6) Standards .......................................... 982
B. Pleading Fraud With Particularity ................................ 983
1. Pleading fraud under Rule 9(b) ................................ 983
2. Application of the Rule 9(b) pleading standards ............... 985
III. CONCLUSION .......................................................... 988
On December 13, 2007, plaintiffs Christopher Blood and Wendy Blood ("the Bloods"), Jeff Brockmeyer and Ann Brockmeyer ("the Brockmeyers"), Dean Dauber and Tanya Dauber ("the Daubers"), and Sue Kohl filed their Complaint against defendants Givaudan Flavors Corp. ("Givaudan"), Firmenich Incorporated ("Firmenich"), Symrise Inc. ("Symrise"), and twenty John Doe defendants alleging five causes of action. The five causes of action asserted are for negligence against all defendants (Count I), fraudulent concealment against defendant Givaudan (Count II), fraudulent concealment against defendant Firmenich (Count III), fraudulent concealment against defendant Symrise (Count IV), and a combined claim for loss of consortium and medical expenses against all defendants (Count V). The Complaint alleges that this court has subject matter jurisdiction by virtue of diversity of citizenship of the parties, 28 U.S.C. § 1332.
Defendants Givaudan and Symrise have each filed motions to dismiss the fraudulent concealment claims against them found in Counts II and IV, respectively, in the Complaint (Doc. Nos. 9 and 23). Because the grounds raised in both defendant's respective motions to dismiss are identical, the court will generally refer to both motions to dismiss as defendants' motions. Specifically, defendants assert that plaintiffs' fraudulent concealment claims against them should be dismissed for failure to plead fraud with particularity. Plaintiffs have filed timely resistances to defendants' motions. Defendants, in turn, have filed reply briefs in support of their respective motions.
On a motion to dismiss, the court must assume all facts alleged in the plaintiffs' Complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 990 (8th Cir.2007). Therefore, the following factual background, related to Counts II and IV, is drawn from the plaintiffs' Complaint in such a manner.
Christopher Blood and Wendy Blood reside in Linn County, Iowa. Christopher was employed by General Mills Corporation ("General Mills") at its popcorn packaging facility in Iowa City, Iowa, from October 1997 to April of 2005. Jeff Brockmeyer and Ann Brockmeyer also reside in Linn County, Iowa. Jeff worked at General Mills's popcorn packaging plant in Iowa City from 1993 to 2005. Dean Dauber and Tanya Dauber reside in Johnson County, Iowa. Dean was employed at General Mills's popcorn packaging facility in Iowa City from 1993 until July 2005. Sue Kohl resides in Johnson County, Iowa, and also worked at General Mills's popcorn packaging plant in Iowa City. Sue worked there from 1993 to 2002.
Defendant Givaudan is a Delaware corporation with its principal place of business in Cincinnati, Ohio. Defendant Givaudan is the owner and operator of a flavoring plant in Cincinnati, Ohio. Defendant Givaudan was known as Mallinckrodt Flavors & Fragrances, Inc. from 1988 until 1990 when it changed its corporate name to Fries & Fries, Inc. Between 1992 and 1997, Givaudan was a general partner in a partnership called Tastemaker, which operated the flavoring plant. Givaudan went by the name Fries & Fries, Inc. until April 1997, when it changed its name to Givaudan-Roure Flavors Corporation. In 2000, Givaudan's name was changed to its current name.
Defendant Symrise is a New Jersey corporation with its principal place of business in Teterboro, New Jersey. Defendant Firmenich is a Delaware corporation with its principal place of business in Plainsboro, New Jersey. Defendants Firmenich, Givaudan and Symrise each design, manufacture, market and distribute natural and artificial butter flavorings. Defendants sold their butter flavorings for use in General Mills's Iowa City popcorn packaging plant. General Mills manufactures microwave popcorn that it markets and sells under the name Pop Secret. General Mills used Givaudan, Firmenich, and Symrise natural and artificial butter flavorings in its popcorn plant in Iowa City.
Defendants' natural and artificial butter flavorings contain the compound diacetyl and other compounds that volatilize during the preparation and use of the oil and flavor mix during the microwave popcorn packaging process. Exposure to these flavoring compounds causes damage to the respiratory systems of popcorn workers in the form of asthma, bronchiectasis, bronchiolitis obliterans, chronic bronchiolitis, chronic obstructive bronchitis, chronic cough, chronic obstructive pulmonary disease, emphysema, fatigue, obstructive spirometry abnormalities, severe lung impairment, and shortness of breath. Defendants knew or should have known of the hazardous nature of their natural and artificial butter flavorings at the time of sale and when plaintiffs were exposed to such products while working at the General Mills facility and were injured. Defendants failed to warn of the danger associated with exposure to their butter flavorings products, and failed to give instructions regarding the safe use of these products and the necessary precautions to take concerning such products. As a result of defendants' failure to provide such warnings and failure to give such instructions, plaintiffs did not know or appreciate the hazard posed by defendants' natural and artificial butter flavorings. Plaintiffs' exposure to defendants' natural and artificial butter flavorings caused damage to plaintiffs' lungs and/or respiratory system.
With respect to their fraudulent concealment claim against defendant Givaudan, plaintiffs allege the following:
28. The Flavors and Extract Manufacturers Association ("FEMA") is and/or was at all times relevant herein, a trade association for flavoring manufacturers, with members including Givaudan, Symrise, and Firmenich. In 1985 FEMA members had access to and did use a database that identified hazards in flavor chemicals. An ingredient data sheet for diacetyl described the chemical as hazardous and capable of producing systemic toxicity.
29. In 1985, the National Institute for Occupational Safety and Health (NIOSH) conducted a Health Evaluation of the International Bakers Services plant in Indiana. The report, published in 1986, stated that two gentlemen employed at the plant using food flavors were diagnosed as having lung injuries clinically consistent with bronchiolitis obliterans.
30. Givaudan knew by 1986 that diacetyl was identified as a chemical that had caused or contributed to cause bronchiolitis obliterans when it was named as a defendant in Spaulding v. AAPER, et al., Circuit Court of Marshall County, Indiana, Case No. CTC 86-117, filed April 15, 1986 and Kois v. Aceto Chemical Co., et al., Circuit Court of Marshall County, Indiana, Case No. CTC 86-200. The plaintiffs in both actions alleged to have suffered from lung disease from exposure to chemicals at the International Bakers Services plant described above. Among the chemicals identified in the action as having caused or contributed to cause lung injury to plaintiffs...
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