Farm Bureau Mut. Ins. Co. v. 1, 4 Grp.
| Decision Date | 27 April 2022 |
| Docket Number | 1:20-cv-12751 |
| Parties | FARM BUREAU MUTUAL INSURANCE COMPANY, as Subrogee of KITCHEN FARMS, INC., Plaintiff, v. 1, 4 GROUP, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
This is a products-liability action stemming from a fire at a potato warehouse in Otsego County, allegedly ignited by an herbicide. Farm Bureau Mutual Insurance Company, as subrogee of the warehouse owner, alleges that herbicide distributor 1 4 Group, Inc. negligently failed to warn the third-party applicator about the herbicide's flammability.
1, 4 Group has filed a motion for summary judgment, arguing (1) that it had no duty to warn about the herbicide's flammability, and (2) that even if it did, it satisfied that duty by providing the applicator with documents stating the herbicide's flashpoint, autoignition, and recommended application temperatures.
Because no reasonable juror could find that 1, 4 Group negligently failed to warn the applicator, or that such failure could have proximately caused the fire, 1, 4 Group's motion for summary judgment will be granted, and Farm Bureau's complaint will be dismissed.
1, 4 Group is an Idaho-based company specializing in the development and distribution of herbicides. ECF No. 1 at PageID.9. In 2013, 1, 4 Group assembled a team of researchers to develop a new solution for an old problem in agriculture potato sprouting. See Forsythe Dep., ECF No. 32-2 at PageID.443. While in storage, potatoes sprout small, toxic growths that must be removed before human consumption. See Patent Application, ECF No. 32-5 at PageID.546. To keep potatoes from sprouting, warehousers apply a mixture of herbicides designed to keep the potatoes “dorman[t].” Id. But if the potatoes have already sprouted, warehousers often resort to certain “rescue treatments” that can “desiccate” (burn) the sprouts. Id.; ECF No. 32-2 at PageID.444.
When 1 4 Group began its research, the primary rescue treatment was clove oil, which was considered nonideal due to its “objectionable odor.” ECF No. 32-5 at PageID.548. At some point, 1, 4 Group learned of 1-octanol, an alcohol compound that had shown clinical success in burning potato sprouts. ECF No. 32-2 at PageID.443-44. After successful in-house and field testing, 1, 4 Group registered 1-octanol with the Environmental Protection Agency and began selling it under the tradename “1, 4ZAP.” Id. at PageID.444.
1, 4 Group also patented a method for treating potatoes with 1, 4ZAP. Id. at PageID.452-54. Typically, potatoes are treated with herbicides through a process known as “thermofogging.” ECF No. 32-5 at PageID.546. During thermofogging, the liquid herbicide is heated into an aerosol or “fog” and then injected into the warehouse. See Buc Report, ECF No. 32-10 at PageID.653. In Michigan, thermofogging is performed by licensed applicators using customized thermofoggers, [1] generally consisting of a heating element, an air blower, a chamber in which the hot air and herbicide are mixed, and a hose connectible to a “port” on the exterior of a warehouse. Id.; Riley Dep., ECF No. 32-8 at PageID.567-71. In 2014, 1, 4 Group obtained a patent for thermofogging 1-octanol “at a temperature of about 400° F. to about 600° F.” ECF No. 32-5 at PageID.550.
Despite registering 1-octanol for sale and patenting its use, 1, 4 Group does not manufacture 1-octanol. ECF No. 32-2 at PageID.444-45. Instead, it purchases 1-octanol in bulk from Sasol, Inc., a South African manufacturer, and then repackages it for sale to applicators. Id. at PageID.444-45, 449.
1, 4 Group also does not provide any of its own safety information. Id. at PageID.444-45. Instead, it provides applicators with the material safety data sheet (MSDS) prepared by Sasol.[2] Id. Among other things, the MSDS warns users that 1, 4ZAP is “flammable” and informs them of 1, 4ZAP's flashpoint temperature, 178-89°F (the lowest temperature at which it can ignite when exposed to an ignition source (e.g., an open flame)), and 1, 4ZAP's autoignition temperature, 525°F (the lowest temperature at which it can ignite without exposure to an ignition source). See 1, 4ZAP MSDS, ECF No. 30-11 at PageID.328-32.
1, 4 Group does, however, provide applicators with its own “applications recommendations” sheet, which recommends an application temperature of “550F before chemical” and “440-450F after chemical.” ECF No. 32-6 at PageID.551. The terms “before chemical” and “after chemical” refer to the thermofogger's temperature before and after the herbicide is mixed into it. ECF No. 32-8 at PageID.580-81. This distinction is necessary because the liquid herbicide is much cooler than the heated air inside the thermofogger, so when the two are mixed, the thermofogger's temperature falls dramatically. ECF No. 32-2 at PageID.469 ().
In this way, controlling the thermofogger's temperature is a crucial part of thermofogging. If the temperature is too low, then the herbicide will remain a liquid and not “fog” correctly. ECF No. 32-8 at PageID.581-82. But if the temperature is too high, then the herbicide might ignite. Id. at 605; ECF No. 32-5 at PageID.547.
In November 2018, Kitchen Farms hired its longtime applicator, William Riley, to apply 1, 4ZAP and other herbicides at one of its potato warehouses. ECF No. 32-8 at PageID.575-76. A licensed applicator with 30 years of experience, Riley had been servicing Kitchen Farms and other potato processors for decades. Id. Although this was the first time that Kitchen Farms had asked him to apply 1, 4ZAP, Riley was familiar with the chemical and had applied it at other facilities on 15 to 20 occasions. Id. at PageID.616. Riley had also spoken with 1, 4 Group's regional sales manager about 1, 4ZAP shortly after it was brought to market. Id. at PageID.605-06. Riley was aware of 1, 4ZAP's flashpoint, autoignition, and recommended application temperatures, and he knew that those temperatures were lower than 1, 4 Group's other products. Id. at PageID.604-07; Bergman Dep., ECF No. 32-3 at PageID.519-20.
On the day of the fire, Riley and his thermofogger were stationed on the warehouse's western wall, while two of his employees were on the eastern wall. ECF No. 32-8 at PageID.589-90, 594. The warehouse's thermofogging ports were located approximately 25 feet above the ground, just a few feet below the ceiling insulation. See Jenkinson Report, ECF No. 32-9 at PageID.640-43; ECF No. 32-2 at PageID.464.
At 9:20 AM, Riley began thermofogging an unrelated 1, 4 Group product, 1, 4SIGHT, at a before-chemical temperature of 820°F. See Riley Worksheet, ECF No. 30-12 at PageID.336. At 11:50 AM, he turned the thermofogger's temperature down to 625°F, waited “two minutes for [the machine] to cool down, ” and then switched to 1, 4ZAP. ECF No. 32-8 at PageID.591.
Because Riley's thermofogger did not have an after-chemical temperature probe, there is no record of what the after-chemical temperature was when he started injecting 1, 4ZAP into the warehouse.[3] Id. at PageID.611-12. Even so, Riley testified that the after-chemical temperature on his thermofogger tended to be several-hundred degrees lower than the before-chemical temperature.[4] Id. at 608 (“If I take my thermal imaging device, and I put it on the pipe, . . . the outside of the pipe coming right out of the machine is going to be around 300 degrees at 800.”). So, by Riley's estimation, the after-chemical temperature “would [have] be[en] [lower] than 300 to 330”-substantially lower than both the recommended after-chemical temperature (440 to 450°F) and the autoignition temperature (525°F). Id. at PageID.622.
Yet about 15 minutes after switching to 1, 4ZAP, Riley noticed a “black spot” below the port, roughly the size of his hand. Id. at PageID.615. He immediately turned off the thermofogger, removed the hose, and climbed up to the port. Id. Although he could not see any flames, he smelled smoke and called the fire department. Id. at 598, 616.
Firefighters arrived sometime later and successfully doused the fire. ECF No. 32-9 at PageID.636. According to Farm Bureau's experts, the fire likely started in the thermofogger and then travelled through the hose and into the warehouse. Id. at PageID.638-39; ECF No. 32-10 at PageID.656. Based on photos taken at the scene, the flames caused direct damage to only the warehouse port, the ceiling insulation above, and the potatoes stored below. ECF No. 32-9 at PageID.642-644. Even so, Kitchen Farms had to dispose of all the potatoes in the warehouse, causing nearly three-million dollars in loss. ECF No. 1 at PageID.10.
After indemnifying Kitchen Farms, Farm Bureau brought this action against 1, 4 Group, alleging one count of common-law negligence. See ECF No. 1 at PageID.10-11. According to Farm Bureau, 1, 4 Group breached its duty of care by “failing to warn or instruct users of [1, 4ZAP] of the fire risk posed by [it].”[5] Id. at PageID.11.
1, 4 Group has filed a motion for summary judgment on two grounds. First, 1, 4 Group argues that it did not have a duty to warn Riley about 1, 4ZAP's flammability not only because he was a “sophisticated user” of 1, 4ZAP, but also because 1, 4ZAP's flammability would have been obvious to the reasonably prudent user. ECF No. 30 at PageID.193-98. Second, 1, 4 Group argues that, even if it had a duty to warn Riley, it satisfied that duty by providing him with the MSDS and recommendations sheet, which together advised him of 1, 4ZAP's flashpoint, autoignition, and recommended application temperatures. Id. In other words, 1, 4 Group contends...
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