Johnson v. Centrome Inc.

• Decision Date: 30 September 2021
• Docket Number: 2:20-CV-165-PPS-JPK
• Court: U.S. District Court — Northern District of Indiana
• Parties: RICHARD JOHNSON and DEANNA JOHNSON, Plaintiffs, v. CENTROME, INC. d/b/a ADVANCED BIOTECH; VIGON INTERNATIONAL, INC.; ALFREBRO, LLC; WILD FLAVORS, INC.; ARCHER-DANIELS-MIDLAND COMPANY; INTERNATIONAL FLAVORS AND FRAGRANCES, INC. f/k/a BUSH BOAKE & ALLEN, INC.; GIVAUDAN f/k/a TASTEMAKER, FRIES & FRIES, MALLINCKRODT; POLAROME INTERNATIONAL, INC., CITRUS AND ALLIED ESSENCES, LTD., Defendants.

RICHARD JOHNSON and DEANNA JOHNSON, Plaintiffs,
v.
CENTROME, INC. d/b/a ADVANCED BIOTECH; VIGON INTERNATIONAL, INC.; ALFREBRO, LLC; WILD FLAVORS, INC.; ARCHER-DANIELS-MIDLAND COMPANY; INTERNATIONAL FLAVORS AND FRAGRANCES, INC. f/k/a BUSH BOAKE & ALLEN, INC.; GIVAUDAN f/k/a TASTEMAKER, FRIES & FRIES, MALLINCKRODT; POLAROME INTERNATIONAL, INC., CITRUS AND ALLIED ESSENCES, LTD., Defendants.

No. 2:20-CV-165-PPS-JPK

United States District Court, N.D. Indiana, Hammond Division

September 30, 2021

OPINION AND ORDER

PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT

This is a products liability action brought against multiple defendants for Richard Johnson's alleged harmful exposure to multiple toxicants during his employment at a local popcorn factory. [DE 61, 77.] There are two motions to dismiss presently before me which argue that the Johnsons failed to sufficiently allege any actionable claims. While the Johnsons have alleged enough factual allegations for certain claims, the amended complaint is not without deficiencies. For the following reasons, the motions will be granted in part and denied in part.

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Background

Between 1992 and 1999, Mr. Johnson worked for ConAgra Brands at the Orville Redenbacher Popcorn Facility in Valparaiso, Indiana. [DE 34 at ¶ 3.] Johnson was allegedly exposed to certain flavoring chemicals including “diacetyl, 2, 3-hexandeione, 2.3-heptanedione, and other related diketones and flavoring chemicals” which caused respiratory problems and related illnesses. Id. at ¶ 17. Mr. Johnson and his wife brought this action against several defendants claiming fraudulent concealment, strict liability for manufacturing and design defects, failure to warn, negligence, and loss of consortium. [DE 34.] The amended complaint also alleges a civil conspiracy with Flavor Extract Manufacturers Association (FEMA) and Givaudan (f/k/a Tastemaker) to conceal that the flavorings contain diacetyl and that diacetyl can cause bronchiolitis obliterans, otherwise known as “popcorn lung.” Id. at ¶¶ 28-35. It also alleges that another defendant, BASF, conducted a diacetyl study on rats, found it caused respiratory problems, and then concealed it from the public. Id. ¶ 29.

The amended complaint further alleges that Givaudan hired Dr. James Lockey in 1996 to investigate the cause and extent of popcorn lung under a non-disclosure agreement and concealed the adverse findings from the public. Id. at ¶ 34-35, 38. Five years earlier, in 1991, Givaudan had developed and marketed a diacetyl-free substitute butter flavoring. Id. at ¶ 37. According to the amended complaint, despite knowing of the dangers of diacetyl, it continued to market and use diacetyl into the late 1990s. Id. at ¶¶ 38-39. Plaintiffs identify the defective product as “toxic flavorings, ” which include

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“diacetyl, 2, 3-hexandeione, 2.3-heptanedione, and other related diketones and flavoring chemicals.” Id. at ¶ 17.

The Johnsons' Amended Complaint is a blunderbuss against fifteen defendants: Centrome, Berje, Vigon, Charkit, Alfrebro, WILD, Archer-Daniels-Midland, Mane, International Flavors, Givaudan, BASF, Polarome, Elan Chemical, O'Laughlin, and Citrus and Allied Essences, for personal injury in this products-liability case. Before going further, I will untangle and separate defendants by their present procedural posture. The Johnsons dismissed six defendants: Charkit, Berje, Elan Chemical, O'Laughlin, BASF, and Mane - so nothing more need be said about any of them. The defendants that remain include Centrome, International Flavors, WILD, Alfrebro, Archer-Daniels-Midland, Givaudan, Vigon, Citrus and Allied Essences, and Polarome, .

Defendants Centrome and International Flavors have filed answers to the amended complaint. [DE 58, 100.] Two others have filed motions to dismiss joined by other defendants. First, WILD Flavors Inc. seeks dismissal joined by Alfrebro, LLC, and Archer-Daniels-Midland Company. [DE 61.] Second, Givaudan Flavors Corporation also seeks dismissal joined by Citrus and Allied Essences and Vigon International. [DE 77.] As for Defendant Polarome, it has not been properly served. [DE 88, 102.]

Discussion

To survive a motion to dismiss, a complaint must state “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must state “enough facts to state a claim to relief that is plausible

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on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[T]he plaintiff [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits.” Triad Assoc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989). While I must “draw all reasonable inferences of fact in the...