Herbst v. Givaudan Flavors Corp.

• Decision Date: 21 December 2018
• Docket Number: No. C 17-4008-MWB,C 17-4008-MWB
• Parties: MARLIN HERBST, Plaintiff, v. GIVAUDAN FLAVORS CORPORATION and EMORAL, INC., f/k/a Polarome International, Inc., Defendants.
• Court: U.S. District Court — Northern District of Iowa

MARLIN HERBST, Plaintiff, v. GIVAUDAN FLAVORS CORPORATIONand EMORAL, INC., f/k/a Polarome International, Inc., Defendants.

No. C 17-4008-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

December 21, 2018

OPINION AND ORDER REGARDING DEFENDANT EMORAL'S MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

I.INTRODUCTION ........................................................................... 2

II.LEGAL ANALYSIS ........................................................................ 3

A.Summary Judgment Standards ................................................... 3

B.Analysis ............................................................................... 5

1.The statute of repose ....................................................... 5

2.Causation .................................................................... 6

a. The "sophisticated user" defense ............................... 6

b. Proof of exposure to Emoral's diacetyl ........................ 8

3.Mere distributor immunity .............................................. 10

III.CONCLUSION ............................................................................ 14

I.INTRODUCTION

In this case, plaintiffMarlin Herbst alleges that he suffers from bronchiolitis obliterans (aka "popcorn lung") and/or other lung or respiratory diseases or impairments from working with butter flavorings containing diacetyl at the American Popcorn Company(APC) plant in Sioux City, Iowa, between 1991 and August 1993.On January 27, 2017, Herbst brought products liability claims under strict liability and negligence and a claim of breach of implied warranties against various "manufacturing defendants," which are companies that allegedly designed, manufactured, distributed, and/or sold diacetyl-containing butter flavorings to APC, and against various "diacetyl defendants," which are companies that allegedly designed, manufactured, marketed, distributed, and/or sold diacetyl that was used by APC.The remaining "manufacturing defendant" is Givaudan Flavors Corporation, and the remaining "diacetyl defendant" is Emoral, Inc. Trial in this matter is set to begin on March 11, 2019.

This case is now before me on Emoral's September 4, 2018, Motion For Summary Judgment.¹After various extensions, Herbst filed his Resistance on December 7, 2018, and Emoral filed its Reply on December 14, 2018.On December 19, 2018, Herbst requested, and I granted, leave to file a sur-reply to respond to unanticipated arguments in Emoral's reply.I indicated that I would give the sur-reply whatever consideration I deemed appropriate.

Both parties request oral arguments on Emoral's Motion, but I conclude that the parties' written arguments and supporting materials are sufficient.Therefore, Emoral's Motion is deemed fully submitted without oral arguments.

II.LEGAL ANALYSIS

Emoral seeks summary judgment on all of Herbst's claims on the following grounds: (1) Herbst's claims are barred by Iowa's statute of repose; (2) Herbst cannot establish causation for any of his claims against Emoral; and (3) as a mere distributor of diacetyl, Emoral is not liable to Herbst under Iowa law on his claims of strict liability and breach of warranties.Herbst denies that summary judgment is appropriate on any of his claims.Before considering Emoral's arguments, I will summarize the standards for summary judgment.

A.Summary Judgment Standards

Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law."FED. R. CIV. P. 56(c)(emphasis added);seeWoods v. DaimlerChrysler Corp., 409 F.3d 984, 990(8th Cir.2005)("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.");see generallyCelotex Corp. v. Catrett, 477 U.S. 317, 323-24(1986).Thus, "[t]he movant'bears the initial responsibility of informing the district court of the basis for its motion,' and must identify 'those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.'"Torgerson v. City of Rochester, 643 F.3d 1031, 1042(8th Cir.2011)(en banc)(quotingCelotex, 477 U.S. at 323).In response,"[t]he nonmovant 'must do more than simply show that there is some metaphysical doubt as to the material facts,' and must come forward with 'specific facts showing that there is a genuine issue for trial.'"Id.(quotingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986)).

When the parties have met their burdens, the district judge's task is as follows:

"On a motion for summary judgment, 'facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'"Ricci v. DeStefano, --- U.S. ----, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490(2009)quotingScott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686(2007)(internal quotations omitted)."Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105(2000), quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202(1986). . . . . "'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'"Ricci, 129 S. Ct. at 2677, quotingMatsushita, 475 U.S. at 587, 106 S. Ct. 1348.

Torgerson, 643 F.3d at 1042-43.Summary judgment is particularly appropriate, however, when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute.See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620(8th Cir.2006).

With these standards in mind, I turn to consideration of Emoral's arguments for summary judgment on all of Herbst's claims.

B.Analysis

1.The statute of repose

Emoral's first argument for summary judgment is based on the 15-year statute of repose for products cases under Iowa law, IOWA CODE § 614.1(2A)(a).Like Givaudan, Emoral argues that Herbst's claims, brought nearly 23 years after his employment at APC ended, are barred by this statute of repose, which Emoral argues expired as to Herbst's claims in 2008.Emoral also contends that no exception to the expiration of the statute of repose is applicable, here.Herbst argues that his claims are not barred, because IOWA CODE § 614.1(2A)(a) expressly excepts claims from the statute of repose "if the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product intentionally misrepresents facts about the product or fraudulently conceals information about the product and that conduct was a substantial cause of the claimant's harm."(Emphasis added).Herbst asserts that there are, at the very least, genuine issues of material fact as to whether Emoral, like Givaudan, fraudulently concealed information about the safety of diacetyl.In reply, Emoral argues that there are no triable issues of fact on "fraudulent concealment," because it was not the sole source of information about diacetyl, where Givaudan and FONA, another flavorings manufacturer, had access to sources of information regarding the hazards of diacetyl that extended far beyond the information provided by Emoral, so Emoral could not conceal information its customers already knew.

First, I conclude that, just as he did in response to Givaudan's argument for summary judgment on this issue, Herbst has met his burden at summary judgment to identify evidence from which a rational trier of fact could conclude that Emoral concealed information about the possible hazards of lung injuries from handling diacetyl.Torgerson, 643 F.3d at 1042-43(stating the rational trier of fact standard at summary judgment).Next, I am not convinced, and Emoral has pointed to no authority holding,that evidence of Emoral's concealment is irrelevant, because another entity purportedly knew more and concealed more—not least because Emoral has not pointed to information about diacetyl that Givaudan purportedly knew that Emoral did not or when and how Emoral knew that Givaudan had more information than Emoral did.On the record presented, a rational trier of fact could conclude that Emoral, like Givaudan, was concealing information about the dangers of diacetyl so that manufacturers, like APC, would continue to use diacetyl or products containing diacetyl, which would maintain the demand for diacetyl.While a rational trier of fact might reject some of the evidence on which Herbst relies to show knowledge and concealment by Emoral—for example, in light of evidence that there may have been gaps in Emoral's membership in FEMA—a rational trier of fact would not be required to do so.

The part of Emoral's Motion For Summary Judgment seeking summary judgment on statute of repose grounds is denied.

2.Causation

Emoral's argument for summary judgment on Herbst's inability to establish causation has two prongs.

a. The "sophisticated user" defense

First, Emoral argues that Herbst cannot establish "causation," because of the applicability of the "sophisticated user" defense.Specifically, Emoral argues that it was under no duty to warn APC, or even Givaudan and FONA, of potential dangers of diacetyl, because Givaudan and FONA were using diacetyl to formulate their flavorings and were "sophisticated users" who then had the responsibility to warn APC and/or its employees.Herbst argues that Emoral has not pointed to evidence demonstrating that Givaudan was a "sophisticated user," but merely assumes...