The Seventh Circuit Court of Appeals has ruled that the manufacturer of diacetyl is not insulated from a lawsuit by exposed workers merely because their employer failed to warn them of the hazards of the substance.
Approximately 20 employees of ConAgra Brands (Orville Redenbacher microwave popcorn plant) who were employed in Indiana. The workers developed a disease known as “popcorn lung,” an inflammatory lung disease known as bronchitis obliterans. The court declined to accept the defense of Givaudan Flavors Corp., the manufacturer, who alleged that the employer was a sophisticated user and should have been responsible to warm the employees of the hazard of the diacetyl.
“Exposure to diacetyl, the employees allege, resulted in their developing respiratory illnesses. When inhaled, diacetyl can cause bronchiolitis obliterans—commonly referred to as ʺpopcorn lungʺ—the inflammation and obstruction of the smallest airways of the lungs. Symptoms of this disease include a dry cough, shortness of breath, wheezing, fatigue, and can lead to worse personal injuries.”
The Court held, “….the sophisticated intermediary doctrine does not fit. ConAgra is not bound by the same regulations as Givaudan, as an employer can rely on the material safety data sheets provided by the manufacturer. ConAgra relied on the warnings and safe handling instructions in Givaudan’s material safety data sheets. Givaudan knew this. Givaudan did not share with ConAgra the possibility that diacetyl could be the source of bronchiolitis obliterans among Givaudan’s workers.”
Agregood v. Givaudan Flavors Corporation, No. 17-3390 (7th Cir. 2018) Decided Sept. 13, 2018
For more about dactyl exposure litigation click here.
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).
