An Indiana federal court has granted summary judgment to Givaudan Flavors Corp. on the issue of design defect, ending a lawsuit by 27 popcorn factory workers who alleged they suffered respiratory injuries after being exposed to the company's diacetyl butter flavoring. Aregood v. Givaudan Flavors Corp., No. 14-0274 (S.D. Ind., entered October 18, 2017). Givaudan had filed a motion in limine directed to the absence of evidence or opinions regarding the alleged defective design or unreasonably dangerous condition of diacetyl, and the court asked for summary judgment briefing on the potentially dispositive issue. The court said that to show defective design under the Indiana Products Liability Act, a plaintiff “’must compare the costs and benefits of alternative designs and show that another design not only could have prevented the injury but also [is] cost-effective.’” Although the plaintiffs had obtained causation expert testimony and the court said it was “presuming without…
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Consumer advocacy watchdog Environmental Working Group (EWG) has issued a new iteration of its “Dirty Dozen Guide to Food Additives.” Reportedly based on hundreds of studies and information culled from EWG’s Food Scores database, the resource purports to cover “food additives associated with serious health concerns, ingredients banned or restricted in other countries, and other substances that shouldn’t be in food.” The substances that EWG deems the “dirty dozen” include nitrites and nitrates; potassium bromate; propyl paraben; butylated hydrosyanisole (BHA); butylated hydroxytoluene (BHT); propyl gallate; theobromine; secret flavor ingredients; artificial colors; diacetyl; phosphate-based food additives; and aluminum-based food additives. See EWG Press Release, November 12, 2014. Issue 545
The U.S. Supreme Court (SCOTUS) has denied certiorari to petitioners alleging that Aaroma Holdings LLC is liable for personal injury claims stemming from the use of diacetyl by Emoral Inc., which declared bankruptcy in 2011 after Aaroma bought its assets in 2010. Diacetyl Plaintiffs v. Aaroma Holdings LLC, No. 14-71 (U.S., cert. denied November 3, 2014). The petitioners had argued that freeing Aaroma from liability would create a loophole for companies looking to avoid tort liability by encouraging them to sell assets before filing for bankruptcy. Additional information about the certiorari petition appears in Issue 532 of this Update. Issue 544
A jury in an Iowa federal court has reportedly determined that International Flavors and Fragrances Inc. (IFF) was not liable for the lung condition a man allegedly developed from microwaving popcorn containing diacetyl, a butter flavoring ingredient used in the product. Stults v. Int’l Flavors & Fragrances Inc., No. 11-4077 (U.S. Dist. Ct., N.D. Iowa, verdict entered August 19, 2014). The plaintiff claimed that the company had breached the implied warranty of fitness for its butter flavoring, which had a foreseeable use in microwave popcorn packages. IFF was the only remaining defendant during the seven-day trial out of some half-dozen companies originally sued for $27 million in compensatory damages. See Law360, August 20, 2014. Issue 535
In a petition for a writ of certiorari, plaintiffs alleging harm by exposure to the flavoring agent diacetyl have argued that the Third Circuit erred in ruling that Aaroma Holdings cannot be held liable for the actions of diacetyl producer Emoral Inc., which Aaroma purchased following the alleged exposures. Diacetyl Plaintiffs v. Aaroma Holdings, No. 14-71 (U.S., petition for writ of certiorari filed July 18, 2014). The terms of the 2010 purchase agreement confirming Aaroma’s acquisition of Emoral apparently noted that Emoral may be subject to diacetyl litigation and stated that Aaroma did not assume liability for any future claims. Emoral filed for bankruptcy protection in 2011, and the bankruptcy trustee reportedly released Aaroma from future diacetyl causes of action against Emoral in exchange for $500,000. In addition to accusing the Third Circuit of diverging from binding precedent on injured creditors’ claims, the plaintiffs’ petition argues that the decision is contrary…
According to a news source, the plaintiffs and defendants in litigation over a respiratory condition allegedly caused by the daily consumption of microwave popcorn containing the butter-flavoring compound diacetyl have settled the claims following a court’s reduction of the jury’s $7-million verdict to $5.78 million, including fees and costs. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo.). Additional details about the litigation appear in Issue 497 of this Update. Plaintiffs’ counsel Ken McClain reportedly indicated that the settlement terms were confidential. See Law360, February 24, 2014. Issue 515
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) has issued a request for comments on Chapter 6 and a new section of Chapter 8 of its draft document, “Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.” Details about diacetyl, a butter-flavoring chemical used in baked goods and microwave popcorn, and pentanedione, a flavoring agent, appear in Issue 403 of this Update. Comments will be accepted until February 10, 2014. See Federal Register, December 26, 2013. Issue 509
A federal court in Colorado has reduced the damages awarded to a man who allegedly contracted bronchiolitis obliterans, a debilitating respiratory condition, after consuming microwave popcorn containing the butter flavoring compound diacetyl. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo., judgment entered September 5, 2013). The jury awarded the plaintiff and his wife more than $7 million, including punitive damages, apportioned among a number of defendants, and the court reduced the total award by more than half to $3.04 million with interest. Additional information about the lawsuit appears in Issues 244, 454 and 480 of this Update. The court agreed with defendant Gilster-Mary Lee, a private label food manufacturer, that a statutory cap applied to the $800,000 non economic damages award against it because the plaintiff discovered or should have discovered his lung injury and its cause before a statutory cut-off in January 2008. The court further refused to…
A federal court in Colorado has dismissed the defendants’ post-trial motions for judgment as a matter of law or for a new trial thus upholding a $7.5 million jury award to plaintiffs who alleged personal injury from exposure to the diacetyl in microwave popcorn consumed at home. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo., order entered April 10, 2013). The court scheduled an April 18 hearing on post-trial motions to amend the judgment and for an award of attorney’s fees and costs. According to the court, in light of conflicting evidence as to the defendants’ knowledge about purported health effects from diacetyl exposure and whether non-workplace exposures are sufficient to cause injury, a reasonable jury could conclude that the defendants knew about the risk and failed to warn consumers about it. The court also found the punitive damages appropriate because “a reasonable jury could conclude that the Defendants knew…
The U.S. Occupational Safety and Health Administration (OSHA) has reportedly cited Natural Flavors Inc. for 12 alleged workplace safety and health violations at its Newark, New Jersey, facility and proposed penalties in excess of $60,000. According to OSHA, an inspection confirmed that company employees were “overexposed to diacetyl,” a butter flavoring purportedly associated with bronchiolitis obliterans, a debilitating lung disease. An agency regional administrator said, “As early as 2004, the flavoring manufacturing industry has been aware that its workers who are overexposed to diacetyl on the job have developed severe, life-threatening lung disease. It is outrageous that Natural Flavors would expose workers to this debilitating chemical without taking the necessary steps to properly assess exposure and protect its employees.” OSHA included a willful violation in the citation for the company’s alleged failure “to adequately identify and evaluate respiratory hazards.” See OSHA Regional News Release, April 8, 2013.
