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From Products Liability Law Daily, July 15, 2014

“Popcorn lung” victim’s claims raise questions best suited for jury

By Melissa Skinner, J.D.

A consumer of microwave popcorn was allowed to proceed with failure-to-warn, implied warranty, and negligent design defect claims against butter flavoring manufacturers because the court found that the claims raised questions of fact that should be decided by a jury. The consumer submitted sufficient evidence to allow the court to determine that a reasonable person could conclude that the manufacturers’ failure to warn, breach of warranty, and negligence were proximate causes of the condition the consumer claimed to have sustained—popcorn lung—as a result of his being exposed to the diacetyl in the popcorn butter flavorings (Stults v. International Flavors and Fragrances, Inc., July 11, 2014, Bennett, M.).

Background. David Stults and his wife, Barbara Stults, filed suit against several manufacturers and distributors of microwave popcorn and suppliers of butter flavoring for that popcorn. The Stultses claimed that David developed “popcorn lung,” or bronchiolitis obliterans, after “consuming multiple bags of microwave popcorn daily for several years.” All the manufacturer and distributor defendants, other than International Flavors and Fragrances, Inc. and Bush Boake Allen, Inc. (collectively International Flavors), had been dismissed prior to the court’s consideration of the current case.

The Stults’ claim of strict liability also was dismissed previously because the court found that Michigan law, which applied in this matter, did not recognize such a claim. The court initially dismissed the Stults’ claims of breach of implied warranty and negligence based on the expiration of the statute of limitations. However, these claims were revived after the Stults’ motion for reconsideration, because the court found that a statutory discovery rule tolled the statute. International Flavors filed a motion for summary judgment regarding the Stults’ failure-to-warn claims, the negligence cause of action in the form of design-defects claims, and the breach-of-implied-warranty claim.

Failure to warn. With regard to the failure-to-warn allegations, International Flavors argued that the Stultses could not prove that proximate cause existed. International Flavors’ argument rested on the notion that it could not be shown that but for its failure to warn, ConAgra—the manufacturer using the International Flavors’ butter flavoring product—would have changed the warnings on its popcorn. Contrarily, the court found that there was no evidence proffered that showed “ConAgra was likely to refuse placement of a reasonable warning on their microwave popcorn products,” and that “a reasonable juror could conclude that the likelihood that ConAgra would convey a warning about the danger of diacetyl to their microwave popcorn users was reduced or eliminated,” to the extent that International Flavors withheld information about those dangers.

Similarly, the court also rejected International Flavors’ argument that it could not be shown that David Stults would not have heeded warnings on the microwave popcorn packaging and, therefore, “the question of whether or not David would have abided by warnings … is for the jury to determine ….” Finally, although the court found that ConAgra was a sophisticated user of the product, which typically would form a defense for International Flavors as it “absolve[es] manufacturers in some circumstances of the duty to warn,” the question of whether that defense was available to International Flavors was less clear. Again, the court deferred to future jury deliberation on this issue, stating: “The key to whether the sophisticated user defense applies here is whether [International Flavors] withheld pertinent safety information regarding its butter flavorings ….”

Warranty and negligence. The court also allowed the Stults’ breach-of-implied-warranty and negligence-based design-defect claims to proceed over International Flavors’ motion for summary judgment. The consideration of the warranty claim was summarily determined after the court noted that International Flavors failed to cite legal authority to prove that the warranty claim merged with the design-defect claim. In terms of the design-defect claim, the court cited certain testimony that ConAgra was able to remove diacetyl from its microwave popcorn. The court found that this evidence was “sufficient for a jury to conclude that a reasonable alternative design” could exist outside the International Flavors’ product.

The case number is C11-4077-MWB.

Attorneys: Dennis M. McElwain (Smith & McElwain) for David Stults. David I. Matthews (Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC) and Jeff W. Wright (Heidman Law Firm, LLC) for International Flavors and Fragrances, Inc. and Bush Boake Allen, Inc.

Companies: International Flavors and Fragrances, Inc.; Bush Boake Allen, Inc.

MainStory: TopStory WarningsNews DesignManufacturingNews DefensesLiabilityNews FoodBeveragesNews MichiganNews IowaNews

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