Daughetee v. Chr. Hansen, Inc.
| Decision Date | 06 March 2013 |
| Docket Number | No. C09–4100–MWB.,C09–4100–MWB. |
| Citation | 960 F.Supp.2d 849 |
| Parties | Deborah DAUGHETEE and Steven Daughetee, Plaintiffs, v. CHR. HANSEN, INC., a Wisconsin Corporation; Firmenich, Inc., a Delaware Corporation; and Symrise, Inc., a New Jersey Corporation, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
OPINION TEXT STARTS HERE
Dennis M. McElwain, Smith & McElwain, Sioux City, IA, Donald H. Loudon, Jr., Kenneth Blair McClain, Michael S. Kilgore, Scott A. Britton–Mehlisch, Scott B. Hall, Steven Edward Crick, Andrew K. Smith, Charles M. Stinger, II, J'Nan C. Kimak, Humphrey Farrington & McClain, P.C., Independence, MO, for Plaintiffs.
Bradley C. Obermeier, Brent B. Green, Duncan Green Brown & Langeness, Thomas J. Joensen, Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, IA, Christopher W. Angius, Holland & Knight, LLP, Portland, OR, Christopher G. Kelly, Katherine Anne Skeele, Holland & Knight, LLP, New York, NY, Sean P. Wajert, Shook, Hardy & Bacon, LLP, April Marie Byrd, Philadelphia, PA, Erick J. Roeder, Patrick Nathaniel Fanning, Shook, Hardy & Bacon, LLP, Kansas City, MO, J. Michael Weston, Brenda K. Wallrichs, Lederer, Weston & Craig, PLC, Richard A. Stefani, Gray, Stefani & Mitvalsky, PLC, Cedar Rapids, IA, Bruce W. Clark, Clark Law Offices, PA, Princeton, NJ, Angela R. Karras Neboyskey, David E. Kawala, Swanson, Martin & Bell, Chicago, IL, for Defendants.
Factual Background
853 1.
The parties and principal actors
2.
Deborahs consumption of microwave popcorn
854 3.
Activities with the popcorn industry
| B. |
Summary Judgment Standards
862 |
B.
Failure To Warn Claims
864
| 1. |
Duty to warn
864 a.
Foreseeability of risk
864 |
b.
Intermediary user defense
869 c.
Bulk-supplier defense
871
| 2. |
Proximate cause
871 a.
Proximate cause requirement
871 |
b.
Expert evidence of causation
872 c.
Evidence establishing proximate cause for failure to warn
g2 d.
Post–February 2000 warnings
873
| C. |
Breach Of Implied Warranty Claims
873 1.
Are implied warranty claims redundant?
874 |
2.
Proof of a product defect
875
| a. |
Defective because of inadequate warnings
875 |
Defective design
876
| 3. |
Post–February 2000 implied warranty claims
876 D.
876 |
E.
878
| 1. |
Standard for punitive damages under Iowa law
879 |
Analysis of the standards
880
| III. |
880 |
This case brings to mind the idiom, “Too much of a good thing can be bad for you.” In this diversity action under Iowa products liability law, plaintiffs allege that Deborah Daughetee developed “popcorn lung” by consuming multiple bags of microwave popcorn daily for several years. Presently, I am asked to determine whether the plaintiffs are entitled to present to a jury both their failure to warn and design defectsclaims generally, and as to a specific brand of microwave popcorn. These questions, and others, are presented by the defendants' motions for summary judgment.
As is my usual practice, I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motions for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for the purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.
Plaintiffs Deborah Daughetee and Steven Daughetee are married and residing in Albuquerque, New Mexico. Defendant Symrise, Inc. (“Symrise”) is a New Jersey corporation with its principal place of business outside of Iowa or New Mexico. Symrise was created in 2002 by merging with, and assuming the liabilities of, Dragoco, Inc. (“Dragoco”). Defendant Firmenich is a Delaware corporation with its principal place of business outside of Iowa or New Mexico. Defendant Chr. Hansen, Inc. (“Hansen”) is a Wisconsin corporation with its principal place of business outside of Iowa or New Mexico. Symrise, Firmenich, and Hansen (collectively “defendants”) all produced butter flavorings containing diacetyl.
The Flavor and Extract Manufacturers Association (“FEMA”) is a trade association for flavor manufacturers. Symrise, Dragoco, and Firmenich were FEMA members. The Popcorn Board is an industry association created to promote, inter alia, research related to popcorn.
Diacetyl is a basic food chemical present in all cheeses and butters. It is an ingredient used to manufacture butter flavorings. Diacetyl is one of a number of potentially volatile organic compounds present in butter flavorings. Butter flavorings are intended to provide “buttery” taste and smell. Upon opening a microwave popcorn bag with butter flavoring, diacetyl vapors are released.
Defendants sold their butter flavorings to microwave popcorn manufacturers, including ConAgra, General Mills, and American Popcorn. General Mills and ConAgra have been aware, since the 1990's, that defendants' butter flavorings contained diacetyl. ConAgra is the largest manufacturer of microwave popcorn in the United States. It operates five microwave popcorn factories and has been in the microwave popcorn business since the 1980's. In addition to defendants, ConAgra also purchased flavorings from Givaudan, and International Flavors and Fragrances.1
Hansen flavoring products were used in ConAgra's ACT II Butter and ACT II Movie Theater microwave popcorns. Symrise shipped butter flavorings to the General Mills plant in Iowa City. Symrise's butter flavorings were used in microwave popcorn manufactured by General Mills and ConAgra. Symrise's butter flavorings were used in General Mills's Pop Secret Movie Theater popcorn and Pop Secret Butter popcorn. Firmenich's butter flavoring was used in only one brand of popcorn that Deborah consumed—General Mills' Pop Secret Movie Theater microwave popcorn. Firmenich butter flavorings were never present in any ConAgra brand of microwave popcorn consumed by Deborah.
Dragoco sold and shipped butter flavorings to ConAgra in the early 1990's in a liquid form. In approximately September 1994, ConAgra began using Givaudan flavorings in its ACT II Butter Lover's microwave popcorn. Prior to that, for a period of time, ACT II Butter Lover's microwave popcorn contained a flavoring manufactured by Dragoco. The parties dispute the length of time that Dragoco supplied butter flavorings for ACT II Butter Lover's microwave popcorn. ConAgra stopped using Dragoco butter flavorings because Givaudan's flavorings were less expensive.
Between 1989 and 2004, Deborah regularly ate microwave popcorn. From 1989 to 2004, she prepared and consumed approximately one or two bags of microwave popcorn each day. Deborah prepared a “Product Identification” Sheet (“Product ID Sheet”) in which she identified the brands of microwave popcorn she has eaten since 1989. Deborah prepared the Product ID Sheet based on her recollection of the various brands she consumed. She identified various brands manufactured by General Mills, ConAgra, and American Popcorn. Specifically, she recalled consuming the following brands and varieties: ACT II Butter; ACT II Butter Lover's; ACT II Movie Theater; Jolly Time Butter; Jolly Time Butterlicious; Jolly Time White and Buttery; Jolly Time Blast O Butter; Pop Secret Butter; Pop Secret Movie Theater; Orville Redenbacher Butter; and, Orville Redenbacher Movie Theater Butter. Her favorite brands, in descending order, were ACT II, Orville Redenbacher, Pop Secret, and Jolly Time. Deborah believes that during between 1989 and 2004, 50 to 60% of the microwave popcorn she consumed was ACT II, 25 to 30% was Orville Redenbacher, 20% was Pop Secret, and 5% was Jolly Time.
After removing a bag of butter flavored microwave popcorn from the microwave, Deborah would open the bag and draw the buttery smell into her nose and lungs. She “liked the smell of opening a bag near my face,” and liked the taste of butter flavored, microwave popcorn. Deborah first ate microwave popcorn in 1989 while working as a writer for the television show “Tour of Duty.” She prepared and ate two bags of microwave popcorn while she worked on Tour of Duty. Typically, she would eat one bag at the office and then take another bag home with her. Similarly, she ate between one and two bags of microwave popcorn while working on the television show “Renegade.” Deborah first ate ACT II microwave popcorn while she was working on “the trials of Rosie O'Neil” but cannot state a precise date when she began eating ACT II Butter Lover's popcorn. Deborah is unable to specify what percentage of her popcorn consumption of ACT II microwave popcorn was made up of ACT II Butter Lover's popcorn. Between 1989 and 1995, Deborah purchased ACT II popcorn from Costco. She also remembers individual bags of ACT II popcorn being available at Blockbuster, but is not sure when. Deborah stopped eating popcorn in 2004 because she grew tired of it.
One of FEMA's standing committees is the Safety Evaluation Coordination Committee. The committee's responsibility is:
To direct and oversee all safety evaluation activities of the Association, and to monitor safety evaluation activity, wherever it occurs, related to flavors. To initiate or cooperate in initiating in activities related to, and supporting, competent and effective safety evaluation of flavors. To coordinate the safety evaluation activities of the Board of Governors, the Expert Panel, other committees of the Association, and outside organizations include governmental agencies, scientific and academic institutions and other industry groups.
Membership Directory at 26; Plaintiffs' App. at 72. The Flavor and Ingredients Committee gathered information...
To continue reading
Request your trial
-
Gilliland v. Novartis Pharm. Corp.
...adequately warned her oncologists—not her —of the connection between bisphosphonates and the risk of ONJ. See Daughetee v. Chr. Hansen, Inc., 960 F.Supp.2d 849, 870 (N.D.Iowa 2013) (explaining that the “intermediary defense is still viable under Iowa law” and that a seller of a product can ......
-
Herbst v. Givaudan Flavors Corp.
...for latent injury caused by "harmful materials," in IOWA CODE § 614.1(2A)(b), for the reasons I stated in Daughetee v. Chr. Hansen, Inc. , 960 F.Supp.2d 849 (N.D. Iowa 2012).In his Resistance, filed March 26, 2018, however, Herbst does not rely on the "harmful materials" exception. Instead,......
-
Kelly v. Ethicon, Inc.
...290 (Iowa 1994)). The defendant's failure to warn must be the proximate cause of the plaintiff's injury. Daughetee v. CHR. Hansen, Inc., 960 F. Supp. 2d 849, 872 (N.D. Iowa 2013). Proximate cause is ordinarily an issue for the jury to decide and should only rarely be decided as a matter of ......
-
Herbst v. Givaudan Flavors Corp.
...Supp. 2d 631, 653 (N.D. Iowa 2011) (citing Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009)). In Daughetee v. Chr. Hansen, Inc., 960 F. Supp. 2d 849 (N.D. Iowa 2013), another "popcorn" case, I reiterated my conclusion that, notwithstanding Iowa's adoption of the Restatement (Thi......