Herbst v. Givaudan Flavors Corp.

• Decision Date: 20 September 2018
• Docket Number: No. C 17-4008-MWB,C 17-4008-MWB
• Citation: 341 F.Supp.3d 1006
• 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

341 F.Supp.3d 1006

Marlin HERBST, Plaintiff,

v.GIVAUDAN FLAVORS CORPORATION and Emoral, Inc., f/k/a Polarome International, Inc., Defendants.

No. C 17-4008-MWB

United States District Court, N.D. Iowa, Western Division.

Signed September 20, 2018

Dennis M. McElwain, Jay Madison Smith, Smith & McElwain Law Office, Sioux City, IA, Andrew K. Smith, J'Nan C. Kimak, Kenneth Blair McClain, Michael S. Kilgore, Nichelle L. Oxley, Steven Edward Crick, Humphrey Farrington & McClain PC, Independence, MO, for Plaintiff.

Matthew E. Enenbach, Robert Michael Slovek, Kutak Rock LLP, Omaha, NE, Diane M. Goderre, Thompson Hine LLP, Columbus, OH, Ellen Melville Maniaci, George B. Musekamp, Kimberly Ellen Ramundo, Stephen J. Butler, Thompson Hine LLP, Cincinnati, OH, Douglas L. Phillips, Timothy A. Clausen, Klass Law Firm LLP, Sioux City, IA, Christopher J. Mulvaney, J. Todd Konold, Jason F. Meyer, Lisa Taylor, Gordon Rees Scully Mansukhani LLP, San Diego, CA, for Defendants.

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

MARK W. BENNETT, U.S. DISTRICT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION...1008

II.LEGALANALYSIS...1009

A. Standards For SummaryJudgment...1009

B. GoverningLaw...1010

C. Discussion...1012

III. CONCLUSION...1015

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.

This case is now before me on Givaudan's February 9, 2018, Motion For Summary Judgment seeking summary judgment on all of Herbst's claims on the ground that, as a matter of undisputed fact and law, his claims, brought nearly 23 years after his employment at APC ended, are barred by the applicable 15-year statute of repose, IOWA CODE § 614.1.¹

Moreover, Givaudan argues, Herbst cannot assert the statutory exception 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. Iowa2012).

In his Resistance, filed March 26, 2018, however, Herbst does not rely on the "harmful materials" exception.Instead, he relies on a different statutory exception, in IOWA CODE § 614.1(2A)(a), which 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 Givaudan fraudulently concealed information about the safety of butter flavorings containing diacetyl that Givaudan sold to APC.²

In a Reply, filed April 11, 2018, Givaudan argues that Herbst's reliance on the "fraudulent concealment" exception fails, under the applicable "clear and convincing evidence" standard, because (1)he has presented no evidence from which a fact-finder could reasonably infer that Tastemaker, Givaudan's predecessor, intentionally misrepresented or fraudulently concealed any information about its butter flavorings, and (2)he lacks any evidence that Tastemaker acted with any intent to deceive.Givaudan also makes clear, in its Reply and in its response to Herbst's Statement Of Additional Material Facts, that it considers any evidence of alleged misrepresentations or concealments after Herbst's employment at APC ended in August of 1993 to be irrelevant.Indeed, Givaudan argues, there was no published information about the alleged association between butter flavorings containing diacetyl and lung disease prior to 2001.

Both parties request oral arguments on Givaudan's Motion For Summary Judgment.Contrary to the parties' assertions, however, I find that their written submissions are sufficient to resolve Givaudan's Motion.Therefore, I deem Givaudan's Motion fully submitted.

II.LEGAL ANALYSIS

A.Standards For Summary Judgment

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, 106 S.Ct. 2548, 91 L.Ed.2d 265(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, 106 S.Ct. 2548 ).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, 106 S.Ct. 1348, 89 L.Ed.2d 538(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 , 557 U.S. 557, 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 weigh-ing 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).

B.Governing Law

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);Ryan v. Capital Contractors, Inc. , 679 F.3d 772, 776(8th Cir.2012).The "governing law," here, is IOWA CODE § 614.1(2A)(a), the key language of which is quoted, above, and applicable decisions of the Iowa courts concerning statutes of repose and exceptions to them based on fraudulent concealment.

Section 614.1(2A) is a "statute of repose" rather than a "statute of limitations."TSB Holdings, L.L.C. v. Bd. of Adjustment for City of Iowa City , 913 N.W.2d 1, 12(Iowa2018);Estate of Ryan v. Heritage Trails Assocs., Inc. , 745 N.W.2d 724, 728(Iowa2008).As the Iowa Supreme Court has explained,

We distinguished a statute of repose from a statute of limitations in Bob McKiness Excavating & Grading, Inc. v. Morton Buildings, Inc. , 507 N.W.2d 405, 408–09(Iowa1993).We stated,

A statute of limitations bars, after a certain period of time, the right to prosecute an accrued cause of action.

By contrast, a statute of repose "terminates any right of action after a specified time has elapsed, regardless of whether or not there has as yet been an injury."

A statute of repose period begins to run from the occurrence of some event other than the event of an injury that gives rise to a cause of action and, therefore, bars a cause of action before the injury occurs.

Under a statute of repose, therefore, the mere passage of time can prevent a legal right from ever arising.

Id. at 408(citation omitted)(quotingHanson v. Williams County , 389 N.W.2d 319, 321(N.D.1986) ).Stated differently, "a statute of limitations affects only the remedy, not the right, ... whereas a statute of repose affects the right itself, extinguishing existing rights or preventing rights from arising."SeeAlbrecht v. Gen. Motors Corp. , 648 N.W.2d 87, 91(Iowa2002)(citation omitted).

TSB Holdings, L.L.C. , 913 N.W.2d at 11.The Iowa Supreme Court reiterated its prior holding that § 614.1(2A)(a) is a "statute of repose," because "the limitations period commenced from the date the aggrieved party first purchased the product or installed it for use."Id. at 12(citingAlbrecht , 648 N.W.2d at 92 ).

As to a "fraudulent concealment" exception to this statute of repose,...