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Herbst v. Givaudan Flavors Corp.

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

December 21, 2018

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

          OPINION AND ORDER REGARDING DEFENDANT EMORAL'S MOTION FOR

          MARK W. BENNETT, U.S. DISTRICT COURT JUDGE.

         SUMMARY JUDGMENT

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 2

         II. LEGAL ANALYSIS ........................................................................ 3

         A. Summary Judgment Standards ................................................... 3

         B. Analysis ............................................................................... 5

         1. The statute of repose ....................................................... 5

         2. Causation .................................................................... 6

         a. The “sophisticated user” defense ............................... 6

         b. Proof of exposure to Emoral's diacetyl ........................ 8

         3. Mere distributor immunity .............................................. 10

         III. CONCLUSION ............................................................................ 14

         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. Trial in this matter is set to begin on March 11, 2019.

         This case is now before me on Emoral's September 4, 2018, Motion For Summary Judgment.[1] After various extensions, Herbst filed his Resistance on December 7, 2018, and Emoral filed its Reply on December 14, 2018. On December 19, 2018, Herbst requested, and I granted, leave to file a sur-reply to respond to unanticipated arguments in Emoral's reply. I indicated that I would give the sur-reply whatever consideration I deemed appropriate.

         Both parties request oral arguments on Emoral's Motion, but I conclude that the parties' written arguments and supporting materials are sufficient. Therefore, Emoral's Motion is deemed fully submitted without oral arguments.

         II. LEGAL ANALYSIS

         Emoral seeks summary judgment on all of Herbst's claims on the following grounds: (1) Herbst's claims are barred by Iowa's statute of repose; (2) Herbst cannot establish causation for any of his claims against Emoral; and (3) as a mere distributor of diacetyl, Emoral is not liable to Herbst under Iowa law on his claims of strict liability and breach of warranties. Herbst denies that summary judgment is appropriate on any of his claims. Before considering Emoral's arguments, I will summarize the standards for summary judgment.

         A. Summary ...


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