Old Republic Insurance Co. has filed a lawsuit in a New York state court, seeking a declaration that it is entitled to reimbursement for the costs it has incurred defending a company that distributed diacetyl and has been sued with other companies for personal injuries allegedly sustained from exposure to the butter-flavored chemical. Old Republic Ins. Co. v. The Travelers Indemnity Co., No. 10103533 (N.Y. Sup. Ct., filed March 18, 2010). According to the complaint, some 21 active lawsuits are currently pending against Old Republic’s insured, Citrus & Allied Essence, Ltd. The carrier claims that it has successfully defended the company for three years at a cost of more than $1 million in cases where other carriers, including one that is now insolvent, share coverage and defense responsibilities.
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A number of microwave popcorn workers and their spouses have reportedly filed a complaint against a flavoring company in a federal court in Illinois, alleging personal injuries, loss of consortium and wrongful death from exposure to the butter flavoring diacetyl. Barker v. Int’l Flavors & Fragrances, Inc., No. 10-48 (S.D. Ill., filed January 21, 2010). The workers were apparently employed by AgriLink, a microwave popcorn manufacturer; they claim that diacetyl exposure can cause the lung disease bronchiolitis obliterans. According to the complaint, the defendant misrepresented the chemical’s safety and hid research on its risks from users. The plaintiffs apparently allege negligence and products liability and are seeking compensatory damages, attorney’s fees and costs. See Mealey’s Food Liability, February 2, 2010.
Following a December 16, 2009, National Institute for Occupational Safety and Health (NIOSH) “green” workshop, NIOSH Director John Howard wrote to the head of the Occupational Safety and Health Administration to indicate that “many of the chemicals and materials used as alternatives to diacetyl for imparting butter flavor to flavoring mixtures and food products are not known to be less hazardous.” Additional information about a NIOSH report on diacetyl substitutes appears in Issue 330 of this Update. Howard’s December 23 letter discusses potential diacetyl replacements, including (i) “starter mix,” which apparently contains “high concentrations of diacetyl itself”; (ii) acetoin, which has not been completely investigated, but “accompanies diacetyl in many of the workplaces where bronchiolitis obliterans occurs in workers who make or use flavorings”; and (iii) 2,3-pentanedione, currently being researched by NIOSH, and purportedly associated with “airway epithelial damage similar to that produced by diacetyl.”
According to a news source, a Denver man who alleged that his habit of consuming two bags of microwave popcorn every day caused his bronchiolitis obliterans, a debilitating lung condition purportedly associated with exposure to the butter flavoring diacetyl, has settled his claims against a flavoring manufacturer. Watson v. Dillon Cos., Inc., (D. Colo.) One of three diacetyl lawsuits brought by consumers in 2008, the claims of Wayne Watson were filed on his behalf by an Independence, Missouri, law firm that has obtained a number of settlements for workers with “popcorn lung” purportedly caused by occupational exposures to diacetyl. Details about Watson’s case appear in issue 244 of this Update. No additional information about the settlement has apparently been made available. See Findlaw.com, December 15, 2009.
The U.S. Department of Labor (DOL) recently announced the availability of its semiannual regulatory agenda, which includes plans to conduct a peer review of the health effects and risks associated with diacetyl in the workplace. According to DOL, “emerging hazards such as food flavorings containing diacetyl and airborne infectious diseases place American workers at risk of serious disease and death.” Although DOL opted not to grant an emergency temporary standard petition filed by two workers’ unions in 2006, the department’s Occupational Safety and Health Administration (OSHA) has noted that “evidence from NIOSH [the National Institute for Occupational Safety and Health] and other sources indicated that employee exposure to diacetyl and food flavorings containing diacetyl is associated with bronchilitis obliterans, a debilitating and potentially fatal disease of the small airways in the lung.” As part of its intent to develop diacetyl regulations, OSHA in July 2009 completed a panel report on a draft standard in accordance with the Small Business Regulatory Enforcement…
An Ohio appeals court has dismissed negligence, product liability, fraudulent concealment, and civil conspiracy claims filed against companies that supplied diacetyl to a flavoring company that employed two workers who allegedly contracted bronchiolitis obliterans, a debilitating lung disease, from exposure to the butter-flavoring chemical. Doane v. Givaudan Flavors Corp., No. C-080928 (Ohio Ct. App., decided September 25, 2009). Affirming the trial court’s grant of defendants’ motions for summary judgment, the appeals court found, among other matters, that the claims were barred by the statute of limitations and because the employer was a sophisticated purchaser with greater knowledge about the “dangers of diacetyl” than its suppliers.
A company that manufactures mustard oil supplied to the employers of food-flavoring workers who alleged they contracted bronchiolitis obliterans from occupational exposure to diacetyl and other chemicals, is seeking court confirmation of its good faith settlement with some of the workers. Ortiz v. Flavor & Extract Mfrs. Assoc. of the U.S., No. BC364831 (Cal. Super Ct., Los Angeles Cty., motion filed June 2, 2009). According to Naturex, Inc.’s motion for an order confirming the settlement, its experts were prepared to testify that scientific evidence and published literature do not link mustard oil to bronchiolitis obliterans, a point two of the plaintiffs appeared to concede when they initiated settlement discussions rather than making their expert available for deposition. The settlement agreement would provide these plaintiffs with $7,500 in exchange for a release and dismissal with prejudice. The motion also indicates that another plaintiff never used mustard oil during his employment. He has…
“Diacetyl-linked jury verdicts of tens of millions of dollars for injured flavoring workers and diagnoses of lung damage in at least three popcorn-loving consumers forced popcorn packers and other food processors to stop using the chemical butter-flavoring two years ago,” writes investigative journalist Andrew Schneider in a May 28, 2009, article examining claims that possible diacetyl replacements– starter distillate and diacetyl trimmer–still include the “lung-destroying chemical.” According to Andrew Schneider Investigates, scientists with the National Institute of Occupational Safety and Health (NIOSH) have published a book, titled Advances in Food and Nutrition Research, that suggests these diacetyl alternatives pose an even greater health risk because they penetrate “the deepest parts of the lung.” Starter distillate is reportedly a product of milk fermentation that contains up to 4 percent diacetyl, while the diacetyl trimmer contains three diacetyl molecules. “The wording here (no added diacetyl) is telling,” said co-author Kathleen Kreiss, who…
The Occupational Safety and Health Administration (OSHA) will convene a rulemaking panel May 5, 2009, to study the effects that a proposed rule on occupational exposure to diacetyl would have on small businesses. The Small Business Regulatory Enforcement Fairness Act (SBREFA) panel allows small businesses that may be affected by the proposal to provide comments before an agency publishes the rule in the Federal Register. The panel must submit its final report within 60 days after convening. Diacetyl is a chemical used in butter flavoring for popcorn and confectionery products that has allegedly been linked to bronchiolitis obliterans, a lung disease diagnosed in a number of workers at U.S. popcorn-manufacturing plants. The topic was covered in issue 296 of this Update. See OSHA News Release, April 29, 2009.
Investigative reporter Andrew Schneider has published an item on his blog about “popcorn lung” problems faced by workers in other industries, such as candy manufacturing, exposed to diacetyl, a butter-flavoring chemical. According to Schneider, five patients diagnosed with the sometimes-fatal lung disease worked at a now closed Brach’s candy plant in Chicago. While federal occupational health and safety inspectors cannot investigate conditions in a closed facility, International Brotherhood of Teamster’s officials are reportedly calling on them to inspect candy plants in Tennessee. The union is apparently concerned that workers outside the popcorn industry are also being exposed to disabling levels of diacetyl and are not aware of it. Schneider also reports that a trial against flavoring manufacturers began on April 6, 2009, for claims involving a woman who allegedly developed bronchiolitis obliterans while working at a plant that produced popular brands of popcorn. A physician who was expected to be…
