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Stults v. International Flavors & Fragrances, Inc.

United States District Court, N.D. Iowa, Western Division

October 23, 2014

DAVID STULTS and BARBARA STULTS, Plaintiffs,
v.
INTERNATIONAL FLAVORS AND FRAGRANCES, INC., and BUSH BOAKE ALLEN, INC., Defendants

Page 959

For David Stults, Barbara Stults, Plaintiffs: Dennis M McElwain, MacDonald Smith, LEAD ATTORNEYS, Smith & McElwain, Sioux City, IA USA; Michael S Kilgore, LEAD ATTORNEY, PRO HAC VICE, Humphrey, Farrington & McClain, PC, Independence, MO USA; Donald H Loudon, Jr, Kenneth Blair McClain, Kevin D Stanley, Scott A Britton-Mehlisch, Scott B Hall, Steven Edward Crick, PRO HAC VICE, Humphrey Farrington & McClain, P.C., Independence, MO USA.

For International Flavors And Fragrances Inc, Defendant: David I Matthews, Richard H Hill, II, LEAD ATTORNEYS, PRO HAC VICE, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA USA; Jeff W Wright, LEAD ATTORNEY, Heidman Law Firm, LLC, Sioux City, IA USA; Patrick L Sealey, LEAD ATTORNEY, Heidman Law Firm, Sioux City, IA USA; Robert P Marcovitch, LEAD ATTORNEY, PRO HAC VICE, Weinberg, Wheeler, Hudgins, Gunn & Dial, Atlanta, GA USA; Brannon J Arnold, Earl W Gunn, Michael Alan Holcomb, PRO HAC VICE, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA USA; Paul E Benson, Michael Best & Friedrich, Milwaukee, WI USA.

For Bush Boake Allen Inc, Defendant: David I Matthews, Richard H Hill, II, LEAD ATTORNEYS, PRO HAC VICE, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA USA; Jeff W Wright, LEAD ATTORNEY, Heidman Law Firm, LLC, Sioux City, IA USA; Patrick L Sealey, LEAD ATTORNEY, Heidman Law Firm, Sioux City, IA USA; Robert P Marcovitch, LEAD ATTORNEY, PRO HAC VICE, Weinberg, Wheeler, Hudgins, Gunn & Dial, Atlanta, GA USA; Brannon J Arnold, Michael Alan Holcomb, PRO HAC VICE, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA USA; Paul E Benson, Michael Best & Friedrich, Milwaukee, WI USA.

Page 960

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' POST-TRIAL MOTIONS FOR NEW TRIAL AND FOR JUDGMENT AS A MATTER OF LAW

MARK W. BENNETT, UNITED STATES DISTRICT JUDGE.

This products liability action, seeking damages for a lung injury to a consumer of microwave popcorn allegedly caused by diacetyl in the popcorn's butter flavoring, resulted in a defense verdict on August 18, 2014, after a four-day jury trial. This case is now before me on the disappointed plaintiffs' post-trial motions for a new trial and for judgment as a matter of law.

Somewhat more specifically, in this diversity action under Michigan products liability law, plaintiffs David Stults and Barbara Stults, husband and wife, alleged that David developed " popcorn lung" --more specifically, bronchiolitis obliterans or BO--by consuming multiple bags of microwave popcorn and inhaling the fumes or vapors from them daily for several years. The remaining defendants, International Flavors & Fragrances Inc., (IFF) and its wholly-owned subsidiary, Bush Boake Allen, Inc. (BBA), manufactured butter flavorings containing diacetyl and sold them to microwave popcorn manufacturers, including ConAgra Foods, Inc. The Stultses asserted claims of strict liability, negligence, breach of warranty, and loss of consortium, all arising from David's respiratory injury allegedly resulting from his exposure to popcorn with butter flavorings containing diacetyl. After rulings on dispositive motions and my July 29, 2014, Order Clarifying Claims Proceeding To Trial (docket no. 322), however, this case proceeded to trial only on the Stultses'" breach of implied warranty" and " loss of consortium" claims. In addition to these claims, the jury was instructed on the Stultses' contention that the defendants' conduct at issue in their " breach of implied warranty" claim caused David a permanent loss of a vital bodily function and was reckless, and on the defendants' affirmative defenses (denominated " specific defenses" in the jury instructions) of " sole proximate cause" and " fault of others." In the Verdict Form, the jurors found for the defendants on the Stultses'" breach of implied warranty" claim and, consequently, did not reach their " loss of consortium" claim or the defendants' affirmative defenses. Verdict Form (docket no. 347).

The Stultses have now filed two motions to overturn the verdict against them: (1) their September 17, 2014, Motion For A New Trial (docket no. 357); and (2) their September 17, 2014, Renewed Motion For Judgment As A Matter Of Law Or. In The Alternative Motion For New Trial (docket no. 358). The defendants filed Resistances (docket nos. 359 and 360) to these Motions on October 1, 2014, and the Stultses filed a Reply Brief (docket no. 361) in further support of their Motion For New Trial on October 8, 2014. My crowded schedule has not permitted the timely scheduling of oral arguments on the Stultses' post-trial motions, and I find the parties' written submissions to be adequate to resolve the issues presented. Therefore, the Stultses' post-trial motions are deemed fully submitted on the written submissions. I will consider these motions in turn.

First, in their Motion For A New Trial, the Stultses contend that their right to a fair trial was violated, because the jury heard the entire qualifications and opinions of one of the defendants' experts, Dr. Meehan. They contend that, although I eventually struck all of Dr. Meehan's testimony for failure to conduct a proper differential diagnosis, I did not give any reason for exclusion of his testimony. The Stultses

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argue that these circumstances led the jurors to believe that the testimony of this first-time expert witness was only excluded for failure to disclose additional research, which was the only objection to his testimony that the jurors heard. They contend that their right to a fair trial was also violated, because the jurors heard improper testimony by another defense witness, Ms. Robbins, attacking the credibility of David's testimony about putting his nose right up to a freshly popped bag of popcorn, even though I struck that testimony and explained to the jurors that I was doing so on the ground that it was irrelevant because of differences between the brand of popcorn that Ms. Robbins had tested and the brands that David had popped. The Stultses argue, in essence, that the jurors could not disregard testimony that they had already heard. The Stultses also argue that, once the improper evidence is taken out of the case, the verdict is against the weight of the evidence. They also argue that they are entitled to a new trial, because Dr. Wolters was allowed to testify. In the alternative, they argue that they are entitled to an evidentiary hearing, because they have pointed to evidence that the jurors considered and believed the improper testimony of Dr. Meehan.

The defendants respond that the Stultses actually " won" at trial on the issues presented, because I excluded Dr. Meehan's testimony in its entirety and excluded the pertinent part of Ms. Robbins's testimony. They contend that the Stultses failed to make any objection to my instruction when I excluded Dr. Meehan's testimony and failed to seek a mistrial at that time. They also point out that the Stultses professed themselves satisfied during trial with my instruction explaining why the pertinent part of Ms. Robbins's testimony was stricken. They also argue that the Stultses cannot show that they were prejudiced by the stricken testimony, because the jurors are presumed to follow the court's instructions to disregard evidence. They also argue that there was no prejudice, because there was no deliberate or pervasive attempt to get inadmissible evidence before the jury, the court took curative action, and the lack of any damage award does not suggest any prejudicial effect. Rather, the defendants argue that the verdict suggests that the jurors accepted the credibility of other evidence that defeated the Stultses' causation theory. Specifically, they point to Dr. Wolters's testimony that diacetyl in microwave popcorn could not have been the cause of David's injuries, because those injuries did not manifest themselves until years after diacetyl was no longer used as a butter flavoring in microwave popcorn that he consumed. They also argue that Dr. Wolters's testimony was properly admitted. The defendants argue, almost as an afterthought, that Dr. Meehan's testimony should not have been stricken, because he properly " ruled in" other causes for David's lung injury, making it unnecessary for him to " rule out" diacetyl exposure. Finally, they argue that the Stultses' attack on the jurors' consideration of Dr. Meehan's and Ms. Robbins's testimony is improper.

In reply, the Stultses argue that they did not " win" the evidentiary issues on which their Motion For A New Trial is based, because they were denied any explanation of why Dr. Meehan's testimony was excluded and were also denied the opportunity to crossexamine him. They also contend that there is no requirement in a civil case to seek a mistrial to preserve a challenge to improper evidence. They also contend that Dr. Meehan's ...


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