Johnson v. Centrome, Inc.

688 F.Supp.3d 813

Richard JOHNSON and Deanna Johnson, Plaintiffs, v. CENTROME, INC., et al., Defendants.

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

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

Signed August 23, 2023

Eric W. Cracken, PHV, Pro Hac Vice, Jacob W. Plattenberger, PHV, Pro Hac Vice, TorHoerman Law LLC, Chicago, IL, Kenneth Brennan, PHV, Pro Hac Vice, TorHoerman Law LLC, Edwardsville, IL, Robert T. Dassow, Hovde Dassow & Deets LLC, Indianapolis, IN, for Plaintiffs.

Daniel M. Long, Jazzmin L. Gordon, Quarles & Brady LLP, Indianapolis, IN, Diane M. Goderre, PHV, Pro Hac Vice, Thompson Hine LLP, Columbus, OH, Emily Montion, PHV, Pro Hac Vice, Kimberly E. Ramundo, PHV, Pro Hac Vice, Stephen J. Butler, PHV, Pro Hac Vice, Thompson Hine LLP, Cincinnati, OH, Eric S. Daniel, PHV, Pro Hac Vice, Thompson Hine LLP, Cleveland, OH, for Defendant Givaudan.

OPINION AND ORDER

PHILIP P. SIMON, JUDGE

This case presents challenging questions under the Indiana Product Liability Act ("IPLA"), specifically its applicability in the context of toxic torts. From 1992 to 1999, Richard Johnson worked for ConAgra Brands, Inc. at the Orville Redenbacher Popcorn Factory in Valparaiso. In the course of his employment, Mr. Johnson was allegedly exposed to toxic flavoring chemicals containing diacetyl, 2,3-hexanedione, and 2,3-heptanedione, causing him to develop a respiratory illness. Through this action, Mr. Johnson (and his wife) seek to recover damages for his injuries from various companies alleged to have manufactured, supplied, distributed, and sold toxic flavorings used at the Valparaiso facility.

The sole named defendant remaining in the case, Givaudan Flavors Corporation, filed a motion for summary judgment [DE 169; DE 170; DE 182], arguing that Plaintiffs' product liability claims are time-barred under the IPLA statute of repose, Ind. Code § 34-20-3-1(b). Because there is no dispute that the Johnson's product liability claims were brought years after the deadline prescribed by the applicable statute of repose, summary judgment must be entered for Givaudan.

Procedural Background

I previously detailed the relevant background on the parties and Johnson's operative complaint [see DE 137], but for convenience sake I'll provide a brief summary of the case to date. The initial complaint asserted sprawling tort claims against fifteen defendants. Then, in the amended complaint, Johnson dropped some defendants and then later voluntarily dismissed several others. [DE 29; DE 34; DE 48; DE 74; DE 134; DE 154; DE 161; DE 164; DE 226.] The remaining defendants filed or joined motions to dismiss on various grounds [DE 61; DE 77], and I granted those motions in part [DE 137]. In summary, I determined that Plaintiffs' fraudulent concealment and negligence claims were subsumed by their IPLA claims and thus merged those claims into causes of action for manufacturing defect, design defect, and failure to warn. [DE 137 at 4-5.] In doing so, I concluded that Johnson's allegations relating to products containing "diacetyl, 2,3-hexanedione, and 2,3-heptanedione" alleged plausible IPLA claims. Id. at 5-9.

What is left in the case are claims against Givaudan, one of the companies alleged to have sold butter flavors containing diacetyl to ConAgra used in the production of microwave popcorn during the time period Johnson worked at its Valparaiso facility. Johnson's claims sound in product liability (Counts 1-5), as well as a derivative claim for his wife's loss of consortium (Count 6). He asserts that Givaudan "imported, extracted, formulated, manufactured, supplied, distributed, and sold diacetyl, including the diacetyl that caused . . . injuries to his respiratory system and related illnesses and injuries[.]" [DE 34, ¶ 13.] As I acknowledged in my prior order, Johnson previously conceded that his fraudulent concealment and negligence claims were subsumed by the IPLA. [DE 83 at 2 n.1; DE 137 at 5.] While at that time, Johnson "reserve[d] the right to assert fraudulent concealment in the event any defendant asserts this action is time barred," id., he has not sought leave to amend the operative complaint.

The parties briefed Givaudan's motion for summary judgment and I held a hearing on the motion. [DE 169; DE 170; DE 180; DE 182; DE 204.] The heart of the dispute is whether Johnson's claims fall under a judicially-created exception to the IPLA statute of repose. See generally Covalt v. Carey Canada, Inc., 543 N.E. 2d 382 (Ind. 1989). Following the hearing, the parties were instructed to submit supplemental briefs more squarely addressing this issue and properly setting forth any facts material to application of the statute of repose that are in genuine dispute. [DE 205.] The motion for summary judgment then pending was vacated; and Givaudan was granted leave to reinstate the motion following the supplemental briefing. Id. The parties subsequently filed supplemental briefs and statements of material facts in dispute teeing up the relevant issues [see DE 210; DE 211; DE 215; DE 216; DE 218; DE 219], and Givaudan later moved to reinstate its motion for summary judgment [DE 248]. As indicated at the hearing, the motion for summary judgment [DE 169] will be reinstated and I now take the matter up with the benefit of the parties' supplemental briefing.

Undisputed Facts

Richard Johnson worked at ConAgra's microwave popcorn plant in Valparaiso from 1992 until 1999. He was a utility worker and machine operator from 1992 to 1996, then a batch deck compounder from 1996 to 1998. [DE 215 at 2; DE 211 at 9-10.] As a batch deck compounder, he worked on the "batch deck," a location indoors on the production floor where workers would stir up batches of the salt, oil, and flavoring mixture that would eventually go into bags of Orville Redenbacher microwave popcorn. After the summer of 1998, Johnson worked in "raw materials," a position in which he was outside "99.9 percent of the time," entered the facility roughly "[o]nce a day," and was not directly handling any of the flavoring products at issue. [DE 215-2 at 41.] While he worked in the raw materials department, he began experiencing shortness of breath accompanied by a cough and wheezing. [DE 211-1 at 9-10, 14-15.]

Givaudan sold butter flavorings to ConAgra's Valparaiso plant while Johnson worked there. Based on the company's review of available sales data, its only sales of flavors to ConAgra's Valparaiso plant "occurred in 1994 and January 1995." [DE 170-1, ¶¶ 2-4.] So, the last point in time Johnson could have come in contact with toxic chemicals that Givaudan allegedly supplied to the ConAgra plant would be January 1995 - twenty-five years prior to the filing of this action. Johnson does not dispute this point.

Johnson testified at his deposition that near the end of his employment at ConAgra in August 1998, he was experiencing "shortness of breath." At the time, he continued to experience shortness of breath with coughing and wheezing any time he had any type of physical exertion; and the shortness of breath would typically last four to five minutes. As explained below, for the next decade, he routinely sought and obtained treatment for chronic respiratory illness - ultimately culminating in an open lung biopsy and diagnosis of "chronic bronchiolitis with bronchiectasis and mucostasis" by physicians at the Mayo Clinic in early 2009.

Several times in 1998, Johnson went to his primary care doctor, Dr. Kenneth Black, to seek treatment for his lung problems. [See DE 211-1 at 15-18, 33-35.] Johnson told his doctor that he has "trouble breathing. I work around corn." Id. at 33. Notes from these visits suggest that Johnson was struggling quite a bit with shortness of breath - it was "[a]ffecting [his] life-style," occurred at work and at home, Johnson was unable to "exert as much at home," and "medication does not appear to be helping." Id. at 35.

In 1999, Dr. Black referred him to a new pulmonologist, Dr. Mazurek. Id. at 18; see id. at 35 (handwritten note reflecting referral March 18, 1999). Dr. Mazurek proceeded to treat Johnson once every four months for the next few years. Id. at 18. After treating with Dr. Mazurek for several years, Johnson started treating with another pulmonologist, Dr. Ahmed. Id. Johnson recalled treating with Dr. Ahmed approximately twice a year for a period of three to five years. Id. Neither Dr. Mazurek nor Dr. Ahmed ordered Johnson to undergo a pulmonary function test. However, Johnson testified that he continued to have shortness of breath throughout this period and the physicians treated him with medications designed to block the action of inflammatory chemicals in the body that cause lung inflammation, as well as rescue inhalers. Id.

In 2008, Johnson went to a third pulmonologist, Dr. Wu, who continued treating his chronic respiratory illness. Johnson was prescribed prednisone tablets. Additionally, he recalled that Dr. Wu ordered a chest X-ray, CT scan, and bronchoscopy. [DE 211-1 at 19.] Johnson further testified that the bronchoscopy did not provide sufficient information for Dr. Wu to provide a diagnosis of his respiratory illness, so Dr. Wu ordered an open lung biopsy to follow up. Id. In November 2008, Johnson also recalled undergoing a pulmonary function test. Id. at 21. At the time of the test, Johnson had been experiencing shortness of breath, which he was treating with a rescue inhaler; but he did not report any other symptoms. Id.

In January 2009, Johnson underwent a surgical lung biopsy at La Porte Hospital. Id. at 38-41. The lab results were reviewed by Dr. Anja Roden and Dr. Eunhee Yi at the Mayo Clinic, who provided a "final pathologic diagnosis" of "chronic bronchiolitis with bronchiectasis and mucostasis." Id. at 41. Features of Johnson's lungs were characterized as "more consistent with small airway disease with bronchiolar metaplasia," than with usual interstitial pneumonia ("UIP" - a form of lung disease characterized by progressive scarring of both lungs). Id.

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