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Herbst v. Givaudan Flavors Corp.

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

September 20, 2018

MARLIN HERBST, Plaintiff,
v.
GIVAUDAN FLAVORS CORPORATION and EMORAL, INC., f/k/a Polarome International, Inc., Defendants.

          OPINION AND ORDER REGARDING DEFENDANT GIVAUDAN'S MOTION FOR

          MARK W. BENNETT U.S. DISTRICT COURT.

         SUMMARY JUDGMENT

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 1

         II. LEGAL ANALYSIS ........................................................................ 4

         A. Standards For Summary Judgment ............................................. 4

         B. Governing Law ...................................................................... 5

         C. Discussion ............................................................................ 8

         III. CONCLUSION ............................................................................ 13

         I. INTRODUCTION

         In this case, plaintiff Marlin Herbst alleges that he suffers from bronchiolitis obliterans (aka “popcorn lung”) and/or other lung or respiratory diseases or impairments from working with butter flavorings containing diacetyl at the American Popcorn Company (APC) plant in Sioux City, Iowa, between 1991 and August 1993. On January 27, 2017, Herbst brought products liability claims under strict liability and negligence and a claim of breach of implied warranties against various “manufacturing defendants, ” which are companies that allegedly designed, manufactured, distributed, and/or sold diacetyl-containing butter flavorings to APC, and against various “diacetyl defendants, ” which are companies that allegedly designed, manufactured, marketed, distributed, and/or sold diacetyl that was used by APC. The remaining “manufacturing defendant” is Givaudan Flavors Corporation, and the remaining “diacetyl defendant” is Emoral, Inc.

         This case is now before me on Givaudan's February 9, 2018, Motion For Summary Judgment seeking summary judgment on all of Herbst's claims on the ground that, as a matter of undisputed fact and law, his claims, brought nearly 23 years after his employment at APC ended, are barred by the applicable 15-year statute of repose, Iowa Code § 614.1.[1] Moreover, Givaudan argues, Herbst cannot assert the statutory exception for latent injury caused by “harmful materials, ” in Iowa Code § 614.1(2A)(b), for the reasons I stated in Daughette v. Chr. Hansen, Inc., 960 F.Supp.2d 849 (N.D. Iowa 2012).

         In his Resistance, filed March 26, 2018, however, Herbst does not rely on the “harmful materials” exception. Instead, he relies on a different statutory exception, in Iowa Code § 614.1(2A)(a), which excepts claims from the statute of repose “if the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product intentionally misrepresents facts about the product or fraudulently conceals information about the product and that conduct was a substantial cause of the claimant's harm.” (Emphasis added). Herbst asserts that there are, at the very least, genuine issues of material fact as to whether Givaudan fraudulently concealed information about the safety of butter flavorings containing diacetyl that Givaudan sold to APC.[2]

         In a Reply, filed April 11, 2018, Givaudan argues that Herbst's reliance on the “fraudulent concealment” exception fails, under the applicable “clear and convincing evidence” standard, because (1) he has presented no evidence from which a fact-finder could reasonably infer that Tastemaker, Givaudan's predecessor, intentionally misrepresented or fraudulently concealed any information about its butter flavorings, and (2) he lacks any evidence that Tastemaker acted with any intent to deceive. Givaudan also makes clear, in its Reply and in its response to Herbst's Statement Of Additional Material Facts, that it considers any evidence of alleged misrepresentations or concealments after Herbst's employment at APC ended in August of 1993 to be irrelevant. Indeed, Givaudan argues, there was no published information about the alleged association between butter flavorings containing diacetyl and lung disease prior to 2001.

         Both parties request oral arguments on Givaudan's Motion For Summary Judgment. Contrary to the parties' assertions, however, I find that their written submissions are sufficient to resolve Givaudan's Motion. Therefore, I deem Givaudan's Motion fully submitted.

         II. LEGAL ANALYSIS

         A. Standards For ...


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