Stults v. Symrise, Inc.

989 F.Supp.2d 735

David STULTS and Barbara Stults, Plaintiffs,

v.SYMRISE, INC., Bush Boake Allen, Inc., International Flavors & Fragrances, and Sensient, L.L.C., Defendants.

No. C 11–4077–MWB.

United States District Court,

N.D. Iowa,

Western Division.

Dec. 24, 2013.

Dennis M. McElwain, MacDonald Smith, Smith & McElwain, Sioux City, IA, Michael S. Kilgore, Donald H. Loudon, Jr., Kenneth Blair McClain, Kevin D. Stanley, Scott A. Britton–Mehlisch, Scott B. Hall, Steven Edward Crick, Humphrey, Farrington & McClain, PC, Independence, MO, for Plaintiffs.

Matthew T.E. Early, Fitzgibbons Law Firm, Estherville, IA, Lee M. Seese, Paul E. Benson, Michael Best & Friedrich LLP, Milwaukee, WI, Michael Alan Holcomb, Brannon J. Arnold, Thomas Duncan Allen, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA, Jeff W. Wright, Patrick L. Sealey, Heidman Law Firm, Sioux City, IA, Richard A. Stefani, Gray, Stefani & Mitvalsky, PLC, Cedar Rapids, IA, Angela R. Karras Neboyskey, David E. Kawala, Swanson, Martin & Bell, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.

INTRODUCTION AND BACKGROUND

739

A.

Factual Background

739

1.

The parties and principal actors

739

2.

David's consumption of microwave popcorn

740

3.

David's medical background and diagnosis

742

4.

Popcorn and flavorings industries' activities

742

a.

1986 International Bakers plant study

742

b.

Bronchiolitis obliterans at Givaudan plant

742

c.

FEMA and its 1997 conference

743

d.

General Mills's skin irritation problems

744

e.

NIOSH's investigation of Jasper plant

745

f.

NIOSH's investigation at American Pop Corn

746

g.

Wall Street Journal article and its fallout

747

h.

Jasper plant litigation

747

i.

NIOSH's investigation at ConAgra

748

j.

Miscellaneous events in 2002

749

k.

The Flavoring Defendants' product testing and warnings

749

l.

The 2007 Rosati study

750

m.

Miscellaneous events in 2008

751

5.

Diacetyl free butter flavorings alternatives

751

6.

Dr. David Egilman

752

B.

Procedural Background

752

II.

LEGAL ANALYSIS

753

A.

Summary Judgment Standards

753

B.

Choice Of Law

755

1.

Is there a “true conflict” of laws?

755

2.

Choice of law rules

756

3.

The § 145(2) “contacts ”

758

a.

Place where injury occurred

758

b.

The place where the conduct causing the injury occurred

758

c.

Place of domicile, residence, incorporation, or business

759

d.

Place where the relationship was centered

759

e.

Summary of the § 145(2) “contacts ”

760

4.

The § 6 Factors

760

a.

Needs of the interstate and international systems

760

b.

Relevant policies of the forum and other interested states

761

c.

Ease of determination and application of the law

761

d.

Other § 6(2) factors

762

5.

Summary

762

C.

Strict Liability Claims

762

D.

Timeliness Of Claims

762

1.

Choice of laws

762

a.

Substantial interest in claims

763

b.

Michigan statute of limitations

764

2.

Conclusion

765

E.

Loss Of Consortium Claim

765

III.

CONCLUSION

766

In this products liability case, plaintiffs allege that David Stults developed “popcorn lung” by eating microwave popcorn daily over many years. Presently, I am asked to determine whether the plaintiffs are entitled to present to a jury their strict liability, failure to warn, and design defects claims about microwave popcorn. However, before I address the merits of plaintiffs' claims, I must resolve paradoxical choice of law questions. Defendants assert application of the law of Michigan, where plaintiffs reside and where they purchased the popcorn at the center of this case, while plaintiffs assert application of the law of Iowa, where some of the microwave popcorn was produced. These questions, and others, are presented by the defendants' motions for summary judgment.

I. INTRODUCTION AND BACKGROUND

A. Factual Background

As is my usual practice, I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motions for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for the purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.

1. The parties and principal actors

Plaintiffs David Stults and Barbara Stults are residents of Grand Rapids, Michigan. David grew up in Muskegon, Michigan, and attended college in Michigan. Except for brief stints in California and Maryland, David has always lived and worked in Michigan.

Defendant Bush Boake Allen, Inc. (“Bush Boake”) is a Virginia corporation with its principal place of business in New York, New York. Defendant International Flavors & Fragrances, Inc. (“International Flavors”) is a New York corporation with its principal place of business in New York, New York. In 2000, Bush Boake became a wholly-owned subsidiary of International Flavors (collectively, “the Flavoring Defendants”). None of the Flavoring Defendants have any employees or agents in Iowa. None of the Flavoring Defendants manufactures or designs butter flavorings in Iowa.

The Flavor and Extracts Manufacturers' Association (“FEMA”) is a trade association. It is comprised of flavor manufacturers, flavor users, flavor ingredient suppliers, and others with an interest in the United States flavor industry. International Flavors and Bush Boake are members of FEMA and have been since approximately 1984. A senior vice-president of International Flavors served on FEMA's Board of Governors in 1984.

Diacetyl is a basic food chemical present in all cheeses and butters. Diacetyl is an ingredient used to manufacture butter flavorings. Diacetyl is one of a number of potentially volatile organic compounds present in butter flavorings. Diacetyl was used in butter flavorings in order to give the flavorings a buttery taste and smell. Upon opening a cooked bag of microwave popcorn with butter flavorings containing diacetyl, diacetyl vapors are released into the air.

The Flavoring Defendants sold their butter flavorings to microwave popcorn manufacturers, including ConAgra. ConAgra Foods, Inc. (“ConAgra”) is one of the largest manufacturers of microwave popcorn in the United States and one of the largest food manufacturers in the world. ConAgra has been in the microwave popcorn business since the 1980's. ConAgra operated microwave popcorn factories in Edina, Minnesota, Hamburg, Iowa, Winslow, Indiana, Valparaiso, Indiana, and Marion. Ohio. In 1991, ConAgra purchased Golden Valley Microwave Foods (“GVMF”). GVMF was formed around 1978 by James Watkins. Before forming GVMF, Watkins invented microwave popcorn when he worked for Pillsbury. In 1982 or 1983, GVMF became one of the first developers of a thin metal susceptor in microwave popcorn bags that allowed the bags to cook in any oven. GVMF was a customer of Bush Boake. GVMF became a customer of International Flavors after International Flavors acquired Bush Boake. GVMF became one of the leaders in the United States in the manufacture and sale of microwave popcorn.

ConAgra has been aware since the early 1990's that butter flavorings contained diacetyl and other volatile organic compounds. Beginning as early as the 1990's, ConAgra conducted studies of the volatile organic and chemical compounds released when its microwave popcorn was popped. ConAgra had an Environment, Occupation, Health, and Safety Department (“EOHS”) that was responsible for the health and safety of both ConAgra's workers and its customers.

In developing a product, ConAgra solicits flavorings suppliers to submit flavors which, if accepted, are subject to ConAgra's testing and approval. In particular, ConAgra had a specification and approval system which butter flavorings manufacturers had to go through before their butter flavorings would be considered for commercial use. ConAgra's Snack Food Division had four to six butter flavorings suppliers. ConAgra's research and development department received Material Safety Data Sheets (“MSDS”) when it received flavoring samples from flavorings suppliers.

Prior to 1994, ConAgra owned the Hunt–Wesson and Orville Redenbacher brands of microwave popcorn. Hunt–Wesson was, eventually, consolidated into ConAgra's Snack Foods Division. In 1994, Hunt–Wesson identified diacetyl as a “target” flavor compound in Bush Boake's butter flavorings for microwave popcorn. As early as 1995, Hunt–Wesson had discussions with Bush Boake about the viability of Bush Boake's butter flavorings. Hunt–Wesson specifically analyzed Orville Redenbacher flavor 39536, using its own laboratories and personnel, to learn the amount of diacetyl, acetoin, and butyric acid it contained. Bush Boake had to submit flavorings to Hunt–Wesson for Hunt–Wesson's approval.

No one at Bush Boake or International Flavors informed ConAgra that its butter flavorings could cause serious lung injury or bronchiolitis obliterans. Bush Boake's MSDS to ConAgra did not indicate that exposure to Bush Boake's butter flavorings could cause serious lung injury or bronchiolitis obliterans. The Flavoring Defendants stopped selling butter flavorings containing diacetyl, including the Orville Redenbacher flavorings, by January 2005.

ConAgra, General Mills, and American Pop Corn are all members of the Popcorn Board. The Popcorn Board is an industry association created to promote research related to popcorn. Its members are popcorn manufacturers who process at least four million pounds of popcorn per year. The Flavoring Defendants are not members of the Popcorn Board and have never attended the Popcorn Board's meetings.

2. David's consumption of microwave popcorn

The parties dispute when David first began eating butter flavored microwave popcorn. David contends that it was as early as 1985.¹ By 1988 or 1989, David was preparing and eating butter flavored microwave popcorn daily 95 percent of the time. By 1991, David's daily routine was to prepare and eat butter flavored microwave popcorn every evening. For at least 19 years, David...