A company that issued Citrus and Allied Essences Ltd. a commercial umbrella insurance policy in 2006 and 2007 has filed suit in a New York state court seeking a declaration that it is not obligated to defend the food-flavoring company in suits by those alleging respiratory injury from diacetyl exposure or to pay damages. Cont’l Cas. Co. v. Citrus & Allied Essences Ltd., No. 650158/2013 (N.Y. Sup. Ct., N.Y. Cty., filed January 17, 2013). According to the complaint, Citrus and its other insurers have claimed that the primary insurance policies for those years have been exhausted by settlements with plaintiffs in the underlying lawsuits. According to the umbrella insurer, however, because the bodily injury did not take place during the policy period, those other policies have not been exhausted. The insurance plaintiff also seeks to recover the amount it paid under a reservation of rights to cover a “shortfall” to…
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According to a news source, the first “popcorn-lung” occupational exposure case tried in California has resulted in a defense verdict. Velasquez v. Flavor & Extract Mfrs. Ass’n, No. BC370319 (Cal. Super. Ct., Los Angeles Cty., verdict reached December 12, 2012). The plaintiff was a former flavoring factory employee who claimed that his exposure to the butter-flavoring chemical diacetyl caused his debilitating lung disease, bronchiolitis obliterans. His attorney was quoted as saying, “The defense was very effective in confusing the jury,” observing that the defense suggested that the plaintiff’s health problems could have been attributed to acetaldehyde, another chemical flavoring. The lawsuit originally involved 10 defendants, a number of whom settled with the plaintiff before trial. Plaintiff’s counsel has reportedly indicated that the verdict will be appealed, citing, among other matters, the trial corut’s decision to allow the jury to hear that the plaintiff is an illegal immigrant. See Law360, December 13, 2012.
David Egilman, whose expert testimony was deemed inadmissible in proceedings involving a consumer’s exposure to the butter-flavoring chemical diacetyl in microwave popcorn, has filed a petition for writ of certiorari (No. 12-697) in the U.S. Supreme Court. He asks, “Whether a nonparty to a district court proceeding has a right to appeal a decision that adversely affects his interest, as the Second, Sixth, and D.C. Circuits hold, or whether, as six other circuit courts hold, the nonparty must intervene or otherwise participate in the district court proceedings to have a right to appeal.” He was apparently retained by a couple seeking to recover for the lung injury sustained by the husband, but the district court found his testimony inadmissible and granted summary judgment for the manufacturers. According to Egilman’s petition, the district court did not confine itself to a traditional reliability inquiry, but “attacked the character and professionalism of the expert…
A federal jury has reportedly awarded $7.2 million to a man who claimed that he developed bronchiolitis obliterans, a debilitating lung disease also known as popcorn lung, from consuming two to three bags of microwave popcorn every day for six years. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo., decided September 19, 2012). Details about the case appear in issue 244 of this Update. The settlement that the plaintiff reached with one of the defendants, a flavoring manufacturer, is discussed in Issue 331 of this Update. According to a news source, the jury found that Gilster-Mary Lee Corp., which manufactured the popcorn, and a retailer were negligent for failing to warn that diacetyl, the butter flavoring chemical in the product, was dangerous. The manufacturer was found liable for 80 percent of the damages, and the supermarket chain was found liable for 20 percent. The retailer has indicated that it…
A recent study has allegedly linked a second artificial butter flavoring— 2,3-pentanedione (PD)—to respiratory toxicity in animals, raising concerns about the diacetyl replacement’s potential effects on factory workers. Ann Hubbs, et al., “Respiratory and Olfactory Cytotoxicity of Inhaled 2,3-Pentanedione in Sprague-Dawley Rats,” The American Journal of Pathology, September 2012. After exposing rats to either PD, diacetyl or air for six hours, researchers reported that those inhaling PD “developed necrotizing rhinitis, tracheitis, and bronchitis comparable to diacetyl-induced injury.” The study’s authors then investigated PD’s delayed toxicity on the animals, concluding that the substance caused “respiratory epithelial injury in the upper nose . . . which progressed through 12 to 14 hours after exposure,” as well as the loss of olfactory neurons and altered gene expression in the brain. “Our study demonstrates that PD, like diacetyl, damages airway epithelium in laboratory studies. This finding is important because the damage is believed to be…
A University of Minnesota study has reported that diacetyl (DA), a food additive used to mimic butter flavors, allegedly “intensifies the damaging effects of an abnormal brain protein linked to Alzheimer’s disease,” according to a recent American Chemical Society press release. Swati More, et al., “The Butter Flavorant, Diacetyl, Exacerbates β-Amyloid Cytotoxicity,” Chemical Research in Toxicology, August 2012. After noticing that the structure of DA resembles a substance “that makes beta-amyloid proteins clump together in the brain,” researchers apparently sought to determine whether the food ingredient could also cause the clumping described as “a hallmark of Alzheimer’s.” Their results evidently showed that DA at occupational exposure levels not only increased levels of beta-amyloid clumping but “enhanced beta-amyloid’s toxic effects on nerve cells growing in the laboratory.” Further experiments also suggested that DA “easily penetrated the so-called ‘blood-brain barrier,’ which keeps many harmful substances from entering the brain” and “stopped a…
Arch Specialty Insurance Co. has filed a declaratory judgment action in a New York state court against a company identified as a distributor of food product ingredients, including the butter-flavoring chemical diacetyl. Arch Specialty Ins. Co. v. Citrus & Allied Essences, Ltd., No. 652670/2011 (N.Y. Sup. Ct., N.Y. County, filed September 29, 2011). The insurance company contends that it has no obligation to defend or indemnify the defendant in the personal injury actions “asserted by numerous claimants against Citrus & Allied in several jurisdictions around the country.” Among other matters, the insurer claims that the events giving rise to the underlying claims did not occur during the policy period; the claims involve “damages or injuries which were expected, intended or non-fortuitous from the standpoint of Citrus & Allied”; the claims fall within a pollution exclusion clause or arise from a recall as defined by the policy; and the insured failed…
A number of former employees of an animal-food flavoring maker have sued companies that make or sell the butter-flavoring chemical diacetyl, alleging that occupational exposure caused them to contract a debilitating lung disease known as bronchiolitis obliterans (or popcorn lung). Huerta v. Aldrich Chem. Co., Inc., No. 11-9461 (Ill. Cir. Ct., Cook Cty., filed September 9, 2011). The 112-count complaint alleges negligence, strict liability design defect and failure to warn, conspiracy, and loss of consortium. The plaintiffs seek unspecified compensatory damages. According to the complaint, “Defendants knew or should have known of the hazardous nature of their diacetyl and diacetyl-containing flavors both at the time of sale and when plaintiffs were exposed to such products while working at the Feed Flavors facility. [Yet], defendants failed to warn of the defective nature of their flavoring chemicals and failed to give instructions on safe use of the flavoring chemicals.”
The National Institute for Occupational Health and Safety (NIOSH) will hold a public meeting August 26, 2011, to solicit public input on a draft document titled “Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.” Diacetyl is a butter-flavoring chemical widely used in baked goods and microwave popcorn. Numerous lawsuits have been filed against flavoring manufacturers by workers and others alleging that inhaling the substance caused their bronchiolitis obliterans, a debilitating lung condition. Pentanedione is also a constituent of synthetic flavoring agents. NIOSH will make the draft document available online by August 12, and those wishing to participate in the public meeting must notify the NIOSH docket office no later than August 19. Public comments must be submitted by October 14. With limited meeting space, NIOSH will give priority to those who register to provide oral comments; 10 minutes will be allotted to each presenter. Among the matters…
A New York state court has determined that a company which made the butter flavoring chemical at issue in workplace exposure lawsuits succeeded to a predecessor’s insurance coverage rights. Int’l Flavors & Fragrances, Inc. v. St. Paul Prot. Ins. Co., No. 601723/08 (N.Y. Sup. Ct., decided April 11, 2011). Finding that a de facto merger had taken place, the court also determined that the company inherited its predecessor’s liabilities in the underlying diacetyl-exposure actions. A $30.4 million jury award involving one of the plaintiffs in an underlying action is discussed in Issue 361 of this Update.
