The 7th Circuit Court of Appeals reinstated a claim filed by nearly 30 workers who argue a microwave popcorn plant failed to warn them of exposure during the manufacturing process to a butter flavor ingredient that has been linked to a disease known as “popcorn lung.”
The workers allege that exposure caused them to suffer from respiratory injuries related to the flavoring ingredient diacetyl while working at the ConAgra Snack Foods Group plant in Rensselaer. In Sept. 2017, Senior Judge Sarah Evans Barker granted summary judgment to the plant’s longtime supplier, Givaudan Flavors Corp., finding that the plaintiffs provided no expert testimony on the costs and benefits of a diacetyl-free butter flavor.
In Gregory Aregood, Jr. v. Givaudan Flavors Corporation, 17-3390, Givaudan faced several claims under Indiana product liability law for strict liability, failure to warn, negligence, and design defect. On appeal, the 7th Circuit Court found summary judgment for Givaudan to be proper on all counts, with the exception that the supplier failed to warn that its products contained a dangerous substance.
When inhaled, diacetyl can cause bronchiolitis obliterans or “popcorn lung” — the inflammation and obstruction of the smallest airways of the lungs. Symptoms include a dry cough, shortness of breath, wheezing, fatigue, and can lead to worse personal injuries.
“In the mid‐1980s, Givaudan learned from its trade association that inhaling diacetyl was ‘harmful’ and ‘capable of producing system toxicity,’” Judge Michael Brennan wrote for the panel Thursday. “In the 1990s, three employees at Givaudan’s plant in Cincinnati were diagnosed with bronchiolitis obliterans, and one died.”
On appeal, the employees focused on Givaudan’s manufacturing and supply of butter flavorings, its accompanying material safety data sheets, and the lack of warnings that the flavorings contained diacetyl. In order to show that the butter flavorings were defective under the Indiana Product Liability Act and to prevail on their failure to warn claim, the 7th Circuit noted the plaintiffs needed show Givaudan had a duty to adequately warn about a latent dangerous characteristic. The 7th Circuit found that the supplier failed to warn in that regard.
The 7th Circuit also found that a jury could reasonably conclude that Givaudan knew of diacetyl’s dangers after several cases of bronchiolitis obliterans in the 1990s, as well as the need to protect its own employees and the users of its products.
“Viewing the evidence in the employees’ favor, and drawing justifiable inferences for them, a reasonable jury could conclude that Givaudan failed to discharge its duty to warn the plaintiff employees on the dangers of diacetyl,” the court concluded. “Thus, summary judgment should not have been granted to Givaudan on plaintiffs’ failure to warn claim.”
This article was first published by The Indiana Lawyer.
