MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ................................................739
A. Factual Background .....................................................739
1. The parties and principal actors ...................................739
2. David's consumption of microwave popcorn ...........................740
3. David's medical background and diagnosis ...........................7424. Popcorn and flavorings industries' activities ......................742a. 1986 International Bakers plant study ..........................742b. Bronchiolitis obliterans at Givaudan plant .....................742c. FEMA and its 1997 conference ...................................743d. General Mills's skin irritation problems .......................744e. NIOSH's investigation of Jasper plant ..........................745f. NIOSH's investigation at American Pop Corn .....................746g. Wall Street Journal article and its fallout ....................747h. Jasper plant litigation ........................................747i. NIOSH's investigation at ConAgra ...............................748j. Miscellaneous events in 2002 ...................................749k. The Flavoring Defendants' product testing and warnings .........749l. The 2007 Rosati study ..........................................750m. Miscellaneous events in 2008 ...................................7515. Diacetyl free butter flavorings alternatives .......................7516. Dr. David Egilman ..................................................752B. Procedural Background ..................................................752II. LEGAL ANALYSIS .............................................................753A. Summary Judgment Standards .............................................753B. Choice Of Law ..........................................................7551. Is there a "true conflict" of laws? ................................7552. Choice of law rules ................................................7563. The § 145(2) "contacts" .......................................758a. Place where injury occurred ....................................758b. The place where the conduct causing the injury occurred ........758c. Place of domicile, residence, incorporation, or business .......759d. Place where the relationship was centered ......................759e. Summary of the § 145(2) "contacts" ........................7604. The § 6 Factors ...............................................760a. Needs of the interstate and international systems ..............760b. Relevant policies of the forum and other interested states .....761c. Ease of determination and application of the law ...............761d. Other § 6(2) factors ......................................7625. Summary ............................................................762C. Strict Liability Claims ................................................762D. Timeliness Of Claims ...................................................7621. Choice of laws .....................................................762a. Substantial interest in claims .................................763b. Michigan statute of limitations ................................7642. Conclusion .........................................................765E. Loss Of Consortium Claim ...............................................765III. CONCLUSION .................................................................766
In this products liability case, plaintiffs allege that David Stults developed "popcorn lung" by eating microwave popcorn daily over many years. Presently, I am asked to determine whether the plaintiffs are entitled to present to a jury their strict liability, failure to warn, and design defects claims about microwave popcorn. However, before I address the merits of plaintiffs' claims, I must resolve paradoxical choice of law questions. Defendants assert application of the law of Michigan, where plaintiffs reside and where they purchased the popcorn at the center of this case, while plaintiffs assert application of the law of Iowa, where some of the microwave popcorn was produced. These questions, and others, are presented by the
As is my usual practice, I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motions for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for the purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.
Plaintiffs David Stults and Barbara Stults are residents of Grand Rapids, Michigan. David grew up in Muskegon, Michigan, and attended college in Michigan. Except for brief stints in California and Maryland, David has always lived and worked in Michigan.
Defendant Bush Boake Allen, Inc. ("Bush Boake") is a Virginia corporation with its principal place of business in New York, New York. Defendant International Flavors & Fragrances, Inc. ("International Flavors") is a New York corporation with its principal place of business in New York, New York. In 2000, Bush Boake became a wholly-owned subsidiary of International Flavors (collectively, "the Flavoring Defendants"). None of the Flavoring Defendants have any employees or agents in Iowa. None of the Flavoring Defendants manufactures or designs butter flavorings in Iowa.
The Flavor and Extracts Manufacturers' Association ("FEMA") is a trade association. It is comprised of flavor manufacturers, flavor users, flavor ingredient suppliers, and others with an interest in the United States flavor industry. International Flavors and Bush Boake are members of FEMA and have been since approximately 1984. A senior vice-president of International Flavors served on FEMA's Board of Governors in 1984.
Diacetyl is a basic food chemical present in all cheeses and butters. Diacetyl is an ingredient used to manufacture butter flavorings. Diacetyl is one of a number of potentially volatile organic compounds present in butter flavorings. Diacetyl was used in butter flavorings in order to give the flavorings a buttery taste and smell. Upon opening a cooked bag of microwave popcorn with butter flavorings containing diacetyl, diacetyl vapors are released into the air.
The Flavoring Defendants sold their butter flavorings to microwave popcorn manufacturers, including ConAgra. ConAgra Foods, Inc. ("ConAgra") is one of the largest manufacturers of microwave popcorn in the United States and one of the largest food manufacturers in the world. ConAgra has been in the microwave popcorn business since the 1980's. ConAgra operated microwave popcorn factories in Edina, Minnesota, Hamburg, Iowa, Winslow, Indiana, Valparaiso, Indiana, and Marion. Ohio. In 1991, ConAgra purchased Golden Valley Microwave Foods ("GVMF"). GVMF was formed around 1978 by James Watkins. Before forming GVMF, Watkins invented microwave popcorn when he worked for Pillsbury. In 1982 or 1983, GVMF became one of the first developers of a thin metal susceptor in microwave popcorn bags that allowed the bags to cook in any oven. GVMF was a customer of Bush Boake. GVMF became a customer of International Flavors after International Flavors acquired Bush Boake. GVMF became one of the leaders
ConAgra has been aware since the early 1990's that butter flavorings contained diacetyl and other volatile organic compounds. Beginning as early as the 1990's, ConAgra conducted studies of the volatile organic and chemical compounds released when its microwave popcorn was popped. ConAgra had an Environment, Occupation, Health, and Safety Department ("EOHS") that was responsible for the health and safety of both ConAgra's workers and its customers.
In developing a product, ConAgra solicits flavorings suppliers to submit flavors which, if accepted, are subject to ConAgra's testing and approval. In particular, ConAgra had a specification and approval system which butter flavorings manufacturers had to go through before their butter flavorings would be considered for commercial use. ConAgra's Snack Food Division had four to six butter flavorings suppliers. ConAgra's research and development department received Material Safety Data Sheets ("MSDS") when it received flavoring samples from flavorings suppliers.
Prior to 1994, ConAgra owned the Hunt-Wesson and Orville Redenbacher brands of microwave popcorn. Hunt-Wesson was, eventually, consolidated into ConAgra's Snack Foods Division. In 1994, Hunt-Wesson identified diacetyl as a "target" flavor compound in Bush Boake's butter flavorings for microwave popcorn. As early as 1995, Hunt-Wesson had discussions with Bush Boake about the viability of Bush Boake's butter flavorings. Hunt-Wesson specifically analyzed Orville Redenbacher flavor 39536, using its own laboratories and personnel, to learn the amount of diacetyl, acetoin, and butyric acid it contained. Bush Boake had to submit flavorings to Hunt-Wesson for Hunt-Wesson's approval.
No one at Bush Boake or International Flavors informed ConAgra that its butter flavorings could cause serious lung injury or bronchiolitis obliterans. Bush Boake's MSDS to ConAgra did not indicate that exposure to Bush Boake's butter flavorings could cause serious lung injury or bronchiolitis obliterans. The Flavoring Defendants stopped selling butter flavorings containing diacetyl, including the Orville Redenbacher flavorings, by January 2005.
ConAgra, General Mills, and American Pop Corn are all members of the Popcorn Board. The Popcorn Board is an industry association created to promote research related to popcorn. Its members are popcorn manufacturers who process at least four million pounds of popcorn per year. The Flavoring Defendants are not members of the Popcorn Board and have never attended the Popcorn Board's meetings.
The parties dispute when David first began eating butter flavored microwave popcorn. David contends that it was as early as 1985.
David always prepared the microwave popcorn and always enjoyed breathing in the buttery aroma when he removed the popcorn from the microwave. Once he opened a bag, David would get his nose as close to the bag as he could without getting burned. With his nose close to the bag, David would suck in the smell by taking deep breaths.
The only brand of microwave popcorn David ate that contained any of the Flavoring Defendants' butter flavorings containing diacetyl was ConAgra's Orville Redenbacher Butter. The butter flavorings that the Flavoring Defendants' manufactured for use in Orville Redenbacher Butter were flavors Bush Boake no. 39536 a/k/a International Flavors no. 10806906, and Bush Boake no. 85352 a/k/a International Flavors no. 10807852.
David remembers reading the microwave popcorn bags' directions for how long to cook the microwave popcorn. David does not recall looking for any warnings on microwave popcorn bags. He does not recall any warnings provided on any bags of microwave popcorn he ate between 1988 and 2007. He testified that he does not remember seeing microwave popcorn packaging that mentioned "no added diacetyl" or "no diacetyl added," because "if I had, it would not have resonated with me, because it was not relevant to anything I needed to know." David's Dep. at 78; Defendants' App. at 483. Asked whether he typically read the labels of products before using them, David responded: "In general yes, but I can tell you at the time I was consuming microwave butter-flavored popcorn, I didn't have a sense of what diacetyl was, nor did I care. For all I knew, it was something that would make you fatter or thinner. I had no idea of the correlation to lung disease." David's Dep. at 563; Defendants' App. at 488.
Asked whether a warning might have prevented him from inhaling microwave popcorn fumes, David stated: "I would like to think that had there been a warning or if there had been some public notice that butter-flavored microwave popcorn could create these kinds of disastrous effects in the consumer market as it did in the workers' market, I would have liked to have known that." David's Dep. at 525; Defendants' App. at 487. David added, "So in my opinion, had there been some kind of warning on the bag that the fumes of this has been known to cause a non-recoverable disease, I think I would have been much more sensitive to not breathing in the fumes which is where this all came from to begin with." David's Dep. at 525; Defendants' App. at 487. David might have seen a microwave popcorn warning telling consumers to allow the popcorn to "cool before opening," but he "thought perhaps this was just another defensive thing the manufacturer is putting on there for whatever reason," similar to how McDonald's warns that its coffee is hot. David's Dep. at 565; Defendants' App. at 488.
The Stults purchased microwave popcorn almost entirely at grocery stores in the Grand Rapids, Michigan area. During
In 2008, David began to suffer symptoms associated with bronchiolitis obliterans in Michigan. Bronchiolitis obliterans is a progressive respiratory disease that becomes worse with additional exposure. In 2009, David was diagnosed with bronchiolitis obliterans at the Mayo Clinic. All of David's current treating physicians are located in the Grand Rapids area. David is currently being treated for his lung disease by Dr. Shelley Schmidt, who practices in Grand Rapids.
In 1986, the National Institute for Occupational Safety and Health ("NIOSH") published a study regarding a Health Hazard Evaluation involving bronchiolitis obliterans at an International Bakers plant in Indiana. The NIOSH's report concluded that two workers at the plant had been diagnosed with lung injuries clinically consistent with bronchiolitis obliterans or emphysema. The NIOSH's 1986 International Bakers report stated: "In the absence of specific identified etiology for the two cases of severe obstructive lung disease, every attempt should be made to control airborne dust exposure in the mixing room." 1986 NIOSH Report at 2; Plaintiffs' App. at 965. The NIOSH report makes no reference or recommendation regarding exposure to "vapors, mists or fumes" which could arise from evaporating liquid.
By 1992, FEMA member Givaudan discovered that some of its employees had been diagnosed with bronchiolitis obliterans and that one of its employees may have died as a result. This discovery led to the creation of an internal task force to investigate the potential for lung injury at the Givaudan plant. In 1992, Givaudan established safety procedures including the use of respirators for workers exposed to diacetyl or products containing diacetyl. In 1993, the Givaudan task force reported that diacetyl could be a cause of bronchiolitis obliterans and further studies should be conducted.
Among the health hazard information FEMA publishes for its members are Flavor and Fragrance Ingredient Data Sheets ("FFIDS") for flavoring chemicals. In 1985, FEMA issued a FFIDS for diacetyl which stated that, upon inhalation, diacetyl was "harmful" and high concentrations were "capable of producing systemic toxicity." FFIDS at 2; Plaintiffs' App. at 62. FEMA has a standing Safety Evaluation Coordination Committee. That committee's responsibilities are:
FEMA Directory at 26; Plaintiffs' App. at 464. FEMA also has a standing Flavor Ingredients Committee. The responsibilities of this committee are:
FEMA Directory at 24; Plaintiffs' App. at 463. FEMA's Flavor Ingredients Committee did not conduct any original animal studies. By 1997, no FEMA committee existed which was responsible for determining whether chemicals could be hazardous when inhaled.
Additionally, FEMA developed a Generally Recognized As Safe ("GRAS") list of ingredients. FEMA's membership directory explained:
FEMA Directory at 3; Plaintiffs' App. at 452.
As a result of the findings of bronchiolitis obliterans at Givaudan's plant, John Hallagan, a science advisor and attorney for FEMA, advised FEMA's Board of Governors that an employee of a member flavor company had been diagnosed with bronchiolitis obliterans and that FEMA should provide a seminar for its members on occupational lung disease and respiratory protection.
The seminar materials provided in relevant part:
Seminar Materials at 10; Plaintiffs' App. at 150. Bronchiolitis obliterans was also discussed at the seminar. By the end of the seminar, attendees were aware of a possible case of bronchiolitis obliterans at a FEMA member plant. Attendees were informed about steps that could be taken to try to prevent individuals from being exposed to things that could cause bronchiolitis obliterans.
Some General Mills's employees at its microwave popcorn plant in Iowa City, Iowa began experiencing skin irritation problems in the mid to late 1990's. In investigating this skin irritation problem, General Mills contacted Givaudan for advice on butter flavorings and industrial hygiene. At the request of General Mills, Givaudan representatives came to its plant in Iowa City. Givaudan advised General Mills on how to protect workers from skin irritation but never told General Mills that Givaudan always required its workers to wear respirators when working with diacetyl. General Mills asked Givaudan if inhaling butter flavorings was hazardous and was told it was not hazardous. In 1999, General Mills hired ventilation consultants to install exhaust hoods at its Iowa City plant.
In approximately 1999, Dr. Gary Olmstead, Dr. Thomas Trautman, and Dr. Tim Crimmins began investigating complaints of skin rashes among workers in General Mills's Iowa City popcorn plant. Dr. Crimmins was General Mills's Vice-President of Health, Safety and Environment. He received board certification in emergency medicine and was a past Chairman
On October 6, 2001, Dr. Trautman wrote an e-mail memorandum outlining General Mills's position that "[d]iacetyl, in our setting, is safe. Nothing has changed for us." Trautman Memorandum at 1; Defendants' App. at 140. Dr. Trautman added: "From the very beginning we knew we needed to take care to minimize exposure [to diacetyl]." Trautman Memorandum at 1; Defendants' App. at 140.
In August 2000, NIOSH performed a Health Hazard Evaluation ("HHE") of the Gilster-Mary Lee microwave popcorn packaging facility in Jasper, Missouri, where there were reported incidents of workplace-related lung disease. NIOSH performed industrial hygiene sampling to measure contaminates. NIOSH also conducted a medical survey of Gilster-Mary Lee plant workers.
On August 22, 2001, NIOSH published an interim report regarding its investigation of the Gilster-Mary Lee microwave popcorn packaging facility. Diacetyl was found to be the "predominant" ketone in the Jasper plant. NIOSH also found that:
NIOSH Gilster-Mary Lee Report at 2; Defendants' App. at 255.
In March and April of 2002, NIOSH conducted follow-up medical and environmental testing at the Gilster-Mary Lee plant. On July 26, 2002, NIOSH issued an interim letter report. NIOSH found that: "In more complex analyses performed since our interim report in August of 2001,
NIOSH Gilster-Mary Lee Letter Report at 2; Plaintiffs' App. at 546. NIOSH made numerous safety recommendations specific to the quality control room and quality control workers to improve the air quality and reduce worker exposures. The recommendations included installation of vented enclosures with a vertical sash in front to allow workers to perform testing with their arms under the sash, placement of ventilation slots in back of the enclosure, and performing all testing within the enclosure.
On August 2, 2002, NIOSH provided Gilster-Mary Lee with a "Worker Update about NIOSH Testing at Jasper Popcorn." The update noted: "We believe that butter flavoring vapors in the air caused lung disease in workers at this plant." NIOSH Gilster-Mary Lee Worker Update at 1; Plaintiffs' App. at 557. The update also discussed quality control room workers' exposures, observing:
NIOSH Gilster-Mary Lee Update at 2; Plaintiffs' App. at 558. NIOSH assessed real time air sampling in the Gilster-Mary Lee quality control room using a Fourier Transform Infared Gas Analyzer and found peak diacetyl concentrations of 56 parts per million inside a microwave bag immediately after popping and 13 parts per million near the bag opening during dumping of the popped corn in a container. The Flavoring Defendants contest these measurements and contend that NIOSH's results of air sampling were inaccurate.
In the early fall of 2001, NIOSH contacted American Pop Corn, through Iowa's Department of Public Health, regarding the health of its popcorn manufacturing employees as a result of the events at the Jasper Popcorn Plant. In September 21, 2001, Greg Hoffman, American Pop Corn's Vice President of Production, met with NIOSH's Dr. Kullman. Based on the meeting, American Pop Corn decided to allow NIOSH access to their microwave facility in order to conduct sampling and testing. According to Hoffman, American Pop Corn was "absolutely" on notice of some kind of health "issue" going on in the popcorn industry. On September 26, 2001, NIOSH conducted a walk-through
NIOSH American Pop Corn Report at 11; Defendants' App. at 90.
On October 3, 2001, the Wall Street Journal published an article, "Butter Flavoring May Pose A Risk To Food Workers," disclosing that NIOSH discovered respiratory problems among the workers at the Jasper plant. In the article, International Flavors is quoted as stating: "`We do not believe that any of our products are responsible for any injuries that the plaintiffs may have suffered.'" Wall Street Journal Article at 1-2; Plaintiffs' App. at 748-49.
Two days after the Wall Street Journal article was published, American Pop Corn and another popcorn manufacturer created the Popcorn Board's Ad Hoc Committee on Worker Safety ("the Ad Hoc Committee"). The Ad Hoc Committee's purpose was to learn about the status of the investigation at the Jasper plant and what the microwave popcorn industry could do to ensure workers' safety.
Jim Montealegre and Michael Bey, both GVMF vice presidents, were members of the Ad Hoc Committee. Jim Collins, a General Mills industrial hygienist, also served on the Ad Hoc Committee. On October 10, 2001, the Ad Hoc Committee held its first meeting. Both Montealegre and Bey attended this meeting. Two NIOSH investigators at the Jasper plant presented the current status of their investigation at the Jasper plant. On October 15, 2001, the Ad Hoc Committee circulated a personal protective equipment ("PPE") tip sheet among its members, including Montealegre and Bey. The PPE tip sheet recommended mandatory respiratory usage for workers in flavoring mixing rooms.
On October 20, 2001, the Ad Hoc Committee, which included Collins and representatives of ConAgra, met in Chicago with NIOSH investigators. A NIOSH representative explained problems experienced at the Jasper popcorn plant in 2000 and NIOSH's investigation regarding the purported link between diacetyl exposure and lung disease. Following this meeting, ConAgra did not modify its packaging of Orville Redenbacher microwave popcorn to warn consumers about the alleged risks of exposure to butter flavorings containing diacetyl. On October 23, 2001, the Ad Hoc Committee circulated a ventilation tip sheet among its members, including Montealegre and Bey.
On September 7, 2001, workers from the Jasper plant brought suit against International Flavors regarding respiratory disease allegedly being caused by exposure to microwave popcorn butter flavorings. On June 13, 2002, International Flavors filed a Form 8-K with the Securities and Exchange
International Flavors's 8-K Form at 1-2; Plaintiffs' App. at 382-83. On March 15, 2004, International Flavors filed another 8-K form which substantially repeated the information contained in its 2002 8-K form.
In 2002, NIOSH received a request for a Health Hazard Evaluation at ConAgra's
In 2002, ConAgra attended the FEMA workshop on "Respiratory Safety in the Flavor and Fragrance Workplace." FEMA informed attendees of the risk associated with butter flavorings exposure and steps to improve worker health. In October 2002, the Popcorn Board signed an alliance agreement with the Occupational Safety and Health Administration ("OSHA"). The purpose of this agreement was to provide microwave popcorn companies with information to assist them in protecting employee health and safety, particularly in reducing and preventing the incidence of obstructive lung disease in the workplace. On October 31, 2002, NIOSH drafted an "alert" which provided industry-wide recommendations to reduce or eliminate exposure to butter flavorings hazards in the workplace. NIOSH submitted a draft of this alert to the Ad Hoc Committee for its input. Both Montealegre and Bey were copied in on the memorandum with the attached NIOSH draft alert.
On April 26, 2002, the United States Centers for Disease Control and Prevention published a report entitled, "Fixed Obstructive Lung Disease in Workers at a Microwave Popcorn Factory — Missouri, 2000-2002." In this report, the CDC stated that it had "no evidence to suggest risk for consumers in the preparation and consumption of microwave popcorn." CDC Report at 1; Defendants' App. at 496. In July 2004, NIOSH issued a Health Hazard Evaluation Report regarding American Pop Corn, HETA #2001-0474-2943. NIOSH found that "[s]ix of 13 workers with experience as mixers had abnormal lung function." NIOSH American Pop Corn Report at iii; Defendants' App. at 76.
Both the Flavoring Defendants have research and development facilities. Bush Boake's facility is located in Mercedes, New Jersey, and International Flavors's facility is in South Brunswick, New Jersey.
Bush Boake used diacetyl in some of its butter flavorings. Bush Boake did not test the flavoring ingredients or the mixtures in its butter flavorings to determine if they were safe to eat. In December 1991, Bush Boake planned to conduct air sampling at its flavorings plant for eight chemicals, including diacetyl, in March 1992. In 1993, Bush Boake knew that some of its employees "showed breathing problems on the pulmonary function testing." Bush Boake Memo at 2; Plaintiffs' App. at 326. On September 20, 1993, Bush Boake's "production formula" for product 85030 warned Bush Boake employees that the ingredient diacetyl had a hazard rating of 2 which constituted a "moderate" inhalation hazard. By November 1993, Bush Boake made respirators available to compounders. In 1994, Bush Boake instituted a Respiratory Protection Program for employees working around a variety of chemicals. One of the "potential respiratory exposures" identified in the Respiratory Protection Program for prevention in the compounding room was diacetyl. In 1995, Carlos Montenegro, a member of Bush
Bush Boake supplied several butter flavorings to ConAgra which contained diacetyl. On August 18, 2004, Michael O'Donnell, ConAgra's Vice President of Ingredients Enterprise Procurements, wrote to International Flavors requesting additional information regarding International Flavors's butter flavorings. O'Donnell wrote in pertinent part:
O'Donnell Letter at 1; Plaintiffs' App. at 693. O'Donnell goes on to make the following specific request: "IFF has clearly created a risk assessment associated with diacetyl. Please identify the research data and reports on which this assessment is based." O'Donnell letter at 1; Plaintiffs' App. at 693.
On September 1, 2004, Ronald Senna, International Flavors's Vice President of Corporate Safety, Environmental & Regulatory Affairs, responded to O'Donnell's letter. In response to O'Donnell's question, Senna answered:
Senna Letter at 1-2; Symrise's Supp.App. at 630-31.
In 2007, the United States Environmental Protection Agency ("EPA") conducted "the first study to take a comprehensive look at chemicals released while microwaving an entire conventional microwave popcorn product." Rosati Study at 701; Plaintiffs' App. at 560. The Rosati study "identified and quantified chemical emissions released in the process of popping
Rosati Study at 701; Plaintiffs' App. at 560. The study further noted the similarity between the vapors from cooking microwave popcorn in a microwave and those found in microwave popcorn plants, observing:
Rosati Study at 706; Plaintiffs' App. at 565. The study found that "chemicals continue to be released from microwave popcorn after bag opening." Rosati Study at 706; Plaintiffs' App. at 565.
On February 12, 2008, Dr. Mitchell A. Cheeseman, Director of the United States Food and Drug Administration, stated: "We're looking at the available information we have on the potential for consumer exposure and how that relates to the available safety data.... At this time ... we still consider diacetyl used as a flavoring agent to be safe for consumers." Columbia Dispatch Article at 1; Defendants' App. at 512. The next month, on March 13, 2008, Dr. Daniel Morgan of the National Institute of Environmental Health Science is quoted stating:
WebMD Article at 1; Defendants' App. at 510.
On December 4, 2008, a comment was posted on the NIOSH science blog, stating in part:
NIOSH Blog; Defendants' App. at 503-04.
Givaudan or Tastemaster developed a butter flavoring that did not contain diacetyl.
Dr. David Egilman, the Stults' causation expert, has opined that the highest rate of diacetyl emission occurs when microwave popcorn bags are opened, and the second highest occurs during popping. Dr. Egilman also concludes that diacetyl remains in the air up to 40 minutes after cooking microwave popcorn. In his opinion, he describes the causal link between the Flavoring Defendants' conduct and David's injuries as follows:
Egilman Report at 93; Plaintiffs' App. at 662.
According to Dr. Egilman, neither of the Flavoring Defendants shared their knowledge that diacetyl posed a respiratory hazard with its customers. The Flavoring Defendants hotly contest all of Dr. Egilman's opinions.
On August 23, 2011, plaintiffs David Stults and Barbara Stults filed their First Amended Complaint against several manufacturers and distributors of microwave popcorn and several suppliers of butter flavorings containing diacetyl.
The Flavoring Defendants have filed the following motions for summary judgment:
The Flavoring Defendants' Joint Motion For Partial Summary Judgment on Plaintiffs' Strict Liability Claim (docket no. 146); the Flavoring Defendants' Joint Motion For Partial Summary Judgment As To Counts II-IV Based On Michigan's Three-Year Statute Of Limitation (docket no. 154); the Flavoring Defendants' Motion for Partial Summary Judgment Regarding
In their Joint Motion For Partial Summary Judgment on Plaintiffs' Strict Liability Claim, the Flavoring Defendants argue that Michigan law should govern the Stults' claims against them and that, under Michigan law, the Stults' strict liability claims fail because Michigan only allows a plaintiff to recover under negligence or warranty theory in a products liability case.
In their Joint Motion For Partial Summary Judgment As To Counts II-IV Based On Michigan's Three-Year Statute Of Limitation, the Flavoring Defendants contend that the Stults' negligence and breach of implied warranty claims are time-barred under Michigan's three year statute of limitations.
In their Joint Motion For Partial Summary Judgment Regarding Failure To Warn, the Flavoring Defendants contend that the Stults' failure to warn claims fail as a matter of law because there is no evidence that any alleged failure to warn was the proximate cause of David's injuries. The Flavoring Defendants also argue that because the microwave popcorn manufacturers were sophisticated users of flavorings, they were in a better position to warn consumers of their products.
In their Joint Motion For Partial Summary Judgment On Plaintiffs' Breach Of Warranty Claim, the Flavoring Defendants make four arguments. First, the Flavoring Defendants contend that the breach of implied warranty claims are redundant of the Stults' negligent claims under either Iowa or Michigan law. Second, the Flavoring Defendants argue that the Stults have offered no proof of a product defect, and, therefore, they cannot sustain their design defect negligence claims under either Iowa or Michigan law. Finally, the Flavoring Defendants argue on any failure to warn that occurred after June 11, 2009, because any failure to warn after that date could not be a proximate cause of David's alleged injury under Iowa law.
The Stults filed timely resistances to all of the Flavoring Defendants' motions for summary judgment. The Flavoring Defendants, in turn, filed timely reply briefs in support of their motions.
Motions for summary judgment essentially "define disputed facts and issues and... dispose of unmeritorious claims [or defenses]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...."). Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) ("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.").
Procedurally, the moving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue," Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548), and demonstrating that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ("[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied."). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate "specific facts showing that there is a genuine issue for trial." FED. R.CIV.P. 56(e); Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) ("The nonmoving party may not `rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))).
As the Eighth Circuit Court of Appeals has explained,
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir.2011) (en banc).
Summary judgment is particularly appropriate when only questions of law are
The Flavoring Defendants have filed two motions for summary judgment directed at the Stults' strict liability claims. In one, they argue that Michigan law should govern the Stults' claims against the Flavoring Defendants and that, under Michigan law, the Stults' strict liability claims fail. In the second, the Flavoring Defendants repeat the contention that Michigan law should govern the Stults' claims against them and the Stults' claims of strict liability fail under that law but alternatively argue that, even if Iowa law applies to the Stults' strict liability claims, their claims fail. Before analyzing the Stults' strict liability claims, I must first resolve which state's law should apply — the law of Michigan, where the Stults reside and where the Stults purchased, and David ate, the microwave popcorn giving rise to this case, or the law of Iowa, the state where much of the microwave popcorn was produced and packaged. Then I will turn to the question of whether the Stults' strict liability claims are viable.
This is not the first time I have confronted the often knotty problem of what law applies to specific common-law and statutory claims in a diversity action. Estate of Pigorsch ex rel. Martin v. York College, 734 F.Supp.2d 704, 711 (N.D.Iowa 2010);. Johnson v. American Leather Specialties Corp., 578 F.Supp.2d 1154, 1162 (N.D.Iowa 2008); John Morrell & Co. v. Halbur, 476 F.Supp.2d 1061, 1074-1075 (N.D.Iowa 2007); Jones ex rel. Jones v. Winnebago Indus. Inc., 460 F.Supp.2d 953, 963-975 (N.D.Iowa 2006); Jones Distrib. Co., Inc. v. White Consol. Indus., Inc., 943 F.Supp. 1445, 1458 (N.D.Iowa 1996); Harlan Feeders, Inc. v. Grand Labs., Inc., 881 F.Supp. 1400, 1402-04 (N.D.Iowa 1995); Curtis 1000, Inc. v. Youngblade, 878 F.Supp. 1224, 1251-54 (N.D.Iowa 1995). However, before applying any choice-of-law rules, I must determine whether or not there is a "true conflict" between the laws of the nominee states, because if there is no such "true conflict," then no choice of law is required. See Bacon v. Liberty Mut. Ins. Co., 688 F.3d 362, 366 (8th Cir. 2012) (concluding that no choice of law analysis is necessary where there was no "true conflict" between Iowa and Nebraska law); Modern Equip. Co. v. Continental Western Ins. Co., Inc., 355 F.3d 1125, 1128 n. 7 (8th Cir.2004) ("If there is not a true conflict between the laws of Nebraska and Iowa on the pertinent issue, then no choice-of-law is required."); Consul General of Republic of Indonesia v. Bill's Rentals, Inc., 330 F.3d 1041, 1045 (8th Cir.2003) ("Before considering any issues of conflict of laws, we must first determine whether `there actually is a difference between the relevant laws of the different states.'") (quoting Phillips v. Marist Soc'y of Washington Province, 80 F.3d 274, 276 (8th Cir.1996) (internal quotation marks omitted)); Harlan Feeders, Inc., 881 F.Supp. at 1405 (noting that there must be a "true conflict" between the laws of the possible jurisdictions on the pertinent issue before any choice of law need be made). Here, the Flavoring Defendants have asserted that a "true conflict" exists between Michigan law and Iowa law. Specifically, the Flavoring Defendants assert that Michigan has not recognized strict liability as a theory of recovery in products liability cases. See Phillips v. J.L. Hudson, 79 Mich.App. 425, 263 N.W.2d 3, 4 (1977) ("Michigan does not recognize `strict liability' as a
In a diversity action such as this, to determine what state's law applies to the Stults' claims, I must use the choice-of-law rules of the forum state, in this case, Iowa. See, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (the conflict-of-laws rules to be applied by a federal court are the rules of the forum state, because "[o]therwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side"); H & R Block Tax Servs. L.L.C. v. Franklin, 691 F.3d 941, 943 (8th Cir.2012) ("`Federal courts sitting in diversity apply the choice-of-law rules of the forum state.'") quoting Cicle v. Chase Bank USA, 583 F.3d 549, 553 (8th Cir.2009); John T. Jones Const. Co. v. Hoot General Const. Co., 613 F.3d 778, 783 (8th Cir.2010) ("We apply the choice-of-law rules of the forum state in a diversity action."); Allianz Ins. Co. of Canada v. Sanftleben, 454 F.3d 853, 855 (8th Cir.2006) ("In a diversity case, a district court sitting in Minnesota applies Minnesota's choice-of-law rules."); Larken, Inc. v. Wray, 189 F.3d 729, 732-33 (8th Cir.1999) ("A federal court must apply the choice of law rules of the forum state — in this case, Iowa."). I, therefore, turn to consideration of Iowa's conflict-of-laws rules.
As the Iowa Supreme Court has explained:
Veasley, 553 N.W.2d at 897-98. As § 145 states, the "contacts" listed in § 145(2) "are to be evaluated according to their relative importance with respect to the particular issue." Restatement (Second) of Conflicts of Laws § 145(2). Thus, I will determine the relative importance of the various § 145(2) "contacts," as well as whether those "contacts" weigh in favor of
The Flavoring Defendants argue that this factor significantly favors application of Michigan's law while the Stults argue that Michigan was merely a fortuitous location for the injury and is not entitled to significant weight in the choice of law analysis. Iowa courts have recognized that, among the § 145(2) "contacts," the "place where the injury occurred" — here, Michigan — has little importance, at least where the state that is the place of injury has no other interest in the case. Cameron v. Hardisty, 407 N.W.2d 595, 597 (Iowa 1987) (finding that Iowa law, instead of Nebraska law, controlled in automobile accident negligence case because Nebraska was merely the place of accident and none of the parties resided in Nebraska); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. e ("[T]he place of injury will not play an important role ... when the place of injury can be said to be fortuitous or ... bears little relation to the occurrence and the parties with respect to the particular issues."). As discussed below, Michigan has other interests in this case, and I find that, under the facts here, the place where the injury occurred is relevant. Consequently, in determining which state has the most significant relationship to the occurrence and the parties, I will give some weight to the fact that the injury occurred in Michigan.
Turning to the next § 145(2) "contact," I must consider the "place where the conduct causing the injury occurred." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2)(b). Courts have recognized in products liability cases that the place where the allegedly defective product was designed, marketed, or manufactured is "the place where the conduct causing the injury occurred," and have given significant weight to that factor in the conflict-of-laws calculus. See, e.g., McLennan v. American Eurocopter Corp., Inc., 245 F.3d 403, 426 (5th Cir.2001) (Texas had the most significant relationship to a products liability claim because Texas was the place where the conduct giving rise to his injuries occurred, where Texas was the place where the helicopter was marketed and manufactured, and where the service bulletins and records concerning the operation of the aircraft were sent and maintained); MacDonald v. General Motors Corp., 110 F.3d 337, 342 (6th Cir.1997) (the "place of conduct causing injury" was both Tennessee, the sight of the accident, and Michigan, the state where the defendant designed the allegedly defective van). I, likewise, conclude that, in a products liability case such as this, in which the plaintiffs allege defective design, or defective warnings, the place where conduct causing injury is the location where the design, manufacture, and marketing of the allegedly defective product occurred.
The parties dispute the location of the design, manufacture, and marketing of the alleged defective products. The Stults contend that the microwave popcorn with butter flavorings containing diacetyl is the product at issue. The Flavoring Defendants, on the other hand, focus on the butter flavorings containing diacetyl. Thus, I must identify the allegedly defective product at issue here in order to determine the place where the conduct causing injury occurred.
The Stults allege, in their Complaint, that: "At all relevant times, Defendants' microwave popcorn and/or butter flavoring were in a defective condition in that they
Some of the microwave popcorn at issue was made in Iowa, and marketed in both Iowa and Michigan. The Flavoring Defendants' butter flavorings containing diacetyl were not designed, marketed, or manufactured in Iowa or Michigan. Thus, taking into consideration all of the evidence in the record, and considering all of the facts in the light most favorable to the Stults, I find that the "contact" identified in § 145(2)(b) as "the place where the conduct causing injury occurred" is neutral and does not favor application of either Iowa or Michigan law.
The third § 145(2) "contact" is "the domicile, residence, nationality, place of incorporation, and place of business of the parties." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2)(c). There is clearly a division here between Michigan as the Stults' residence, and New York, Bush Boake and International Flavors's principal place of business. As Comment e to § 145 explains,
Restatement (Second) of Conflict of Laws § 145, cmt. e. Here, the Stults' residence in Michigan "groups" with both the "place of injury" and "the place where the conduct causing injury occurred." See Dorman v. Emerson Elec. Co., 23 F.3d 1354, 1359 (8th Cir.1994) (finding the plaintiff's domicile in Canada was significant when Canada was also the place of injury and the place where the plaintiff purchased and used the allegedly defective product). On the other hand, none of the Flavoring Defendants' place of business is grouped with their conduct allegedly causing injury. Therefore, the § 145(2)(c) "contacts" weigh in favor of Michigan.
The final § 145(2) "contact" is "the place where the relationship, if any, between the parties is centered." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2)(d). The parties agree that there was no "relationship" between the Stults and any of the Flavoring Defendants. The Restatement
The preceding analysis shows that this case involves the following § 145(2) "contacts": the "place of injury" is Michigan, but that "contact" is of slight rather than "presumptive" importance; the "place where the conduct causing the injury occurred" is in both Iowa and Michigan since some of the microwave popcorn at issue was made in Iowa, and marketed in both Iowa and Michigan; the Stults' residence in Michigan can be "grouped" with other contacts so that their contact with Michigan is of considerably greater weight; and there is no place where the relationship between the Stults and the Flavoring Defendants is centered. Thus, based on the § 145(2) "contacts," Michigan has the dominant interest of the nominee states.
My consideration of the § 145(2) "contacts" is not the end of the conflict-of-laws analysis, however, because as § 145(1) makes clear, the question is which state "has the most significant relationship to the occurrence and the parties under the principles stated in § 6," see RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(1), and also makes clear that the § 145(2) "contacts" are merely the "[c]ontacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue...." Id. at § 145(2); accord Veasley, 553 N.W.2d at 898 ("[T]he situation-specific sections of the Restatement, such as section 145, incorporate the provisions set forth in section 6 thereof."). Therefore, I must now consider the § 6 "principles," at least to the extent that I find that they are implicated here, in light of the pertinent § 145(2) "contacts."
The Comments to § 145 explain that "[t]he factors in Subsection (2) of the rule of § 6 vary somewhat in importance from field to field." Id., cmt. b. More specifically, the Comments explain that the § 6 factors of relatively greater importance for a tort action are "the needs of the interstate and international systems [§ 6(2)(a)], the relevant policies of the forum [§ 6(2)(b)], the relevant policies of other interested states [§ 6(2)(c)] and particularly of the state with the dominant interest in the determination of the particular issue, and the ease in the determination and application of the law to be applied [§ 6(2)(g)]." Id.; cf. Veasley, 553 N.W.2d at 898 (also discounting, in an automobile accident case, the importance of the factors in § 6(2)(d) and (f), but finding that the factor in (g) was "of little importance" in such a case, because the defendant would either be held liable or it would not, without any "esoteric or complex substantive laws ... involved"). I will consider these relatively more important factors in turn.
The Comments to § 6 concerning "the needs of the interstate and international
The second and third relatively more important § 6 factors in a tort case are "the relevant policies of the forum," RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(b), and "the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue," id. at § 6(2)(c), respectively. Id. § 145, cmt. b (identifying these factors as ones of relatively greater importance in a tort case); cf. Veasley, 553 N.W.2d at 898 (also discounting, in an automobile accident case, the importance of other § 6(2) factors). The Comments to § 145 indicate that what is of particular concern with regard to the § 6(2)(c) factor is the policies of "the state with the dominant interest in the determination of the particular issue." Id. at § 145, cmt. b. Thus, these two factors should logically be considered together here, where Iowa is the forum state and Michigan is the state that I have determined has the dominant interest in the issues in this case, based on the § 145(2) "contacts."
My difficulty with respect to these two factors is that the parties have provided scant authority and limited discussion regarding the policies behind the general tort laws of either nominee states, Iowa and Michigan. An underlying policy of the tort law of Michigan is to compensate victims See Neal v. Miller, 778 F.Supp. 378, 386 (W.D.Mich.1991) ("Under Michigan law, a tort victim is entitled to a fair and adequate award of damages to compensate for all physical and mental harm proximately caused by the tortfeasor's actions."). Iowa shares that underlying policy. See Jones, 460 F.Supp.2d at 973. Accordingly, the § 6(2)(b) and (c) factors are neutral.
The final § 6(2) factor of relatively greater significance in a tort case is the "ease in the determination and application of the rule to be applied." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(g). I find no significant impediment to my determining and apply either Iowa or Michigan
The remaining § 6(2) factors are of relatively lesser importance in this tort case, Those factors are "(d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, [and] (f) certainty, predictability, and uniformity of result." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(d)-(f). Having considered each of these factors, I conclude that none of these factors weigh against the application of Michigan law in this case.
Upon consideration of the § 145(2) "contacts" and the § 6 "factors" that make up the "most significant relationship" test for conflict-of-laws determinations under Iowa law, I conclude that Michigan has the dominant interest in the issues presented and that application of Michigan law is in keeping with the pertinent factors. Therefore, the substantive legal issues in this case will be governed by Michigan law.
As discussed above, the Flavoring Defendants have filed two motions for summary judgment challenging the viability of the Stults' strict liability claims. The Flavoring Defendants assert that the Stults' strict liability claims must be dismissed because Michigan does not recognize strict liability as a theory of recovery in products liability cases. The Flavoring Defendants' assertion is correct. "[I]n Michigan only two theories of recovery are recognized in products liability cases, negligence and implied warranty, not strict liability." Toth v. Yoder Co., 749 F.2d 1190, 1193; see Phillips, 263 N.W.2d at 4; Johnson, 254 N.W.2d at 571; see also Hendrian, No. 08-14371, 2012 WL 3758229, at *6. Therefore, the Flavoring Defendants' joint motions for summary judgment on the Stults' strict liability claims are granted.
The Flavoring Defendants also seek summary judgment on the Stults' negligence and breach of implied warranty claims on the ground that those claims are time-barred under Michigan's three year statute of limitations. The Stults contend that their claims are timely. Before analyzing the timeliness of the Stults' negligence and breach of implied warranty claims, I must first resolve which state's statute of limitations should apply — the law of Iowa, the forum state, or the law of Michigan, the state that I have found has the most significant relationship to the parties and the occurrence.
As stated above, under the most significant relationship test, I find that Michigan substantive law applies. This determination, however, does not resolve the issue of the applicable statute of limitations. For choice of law questions involving the applicable statute of limitations, Iowa applies the revised version of Restatement (Second) of Conflict of Laws § 142. See Washburn v. Soper, 319 F.3d 338, 342 (8th Cir.2003).
Section 142 provides:
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 142.
Thus, under § 142, barring "exceptional circumstances" that would make the "result unreasonable," the forum state's statute of limitations applies unless: (1) maintenance of the claim does not serve a "substantial interest" of the forum state; and (2) the claim would be barred under "the statute of limitations of a state having a more significant relationship to the parties and the occurrence." RESTATEMENT (SECOND), CONFLICT OF LAWS § 142. I take up each of these requirements in turn.
I first consider whether Iowa has any substantial interest that would be advanced by permitting the Stults' claims and conclude that it does not. The "substantial interest" test should be conducted with some sensitivity to the results of the "most significant relationship" test. See Stanley v. CF-VH Assocs., Inc., 956 F.Supp. 55, 59 (D.Mass.1997); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 142 cmt. e ("[A] claim will not be maintained if it is barred by the statute of limitations of the state which, with respect to the statute of limitations, is the state of most significant relationship to the occurrence and the parties under the principles stated in § 6."). Michigan clearly has a greater interest than Iowa in the Stults' claims. Michigan is where David lives and where he bought and consumed the butter flavored microwave popcorn containing diacetyl. Michigan is the place of David's injuries. Michigan is also the location where David obtains treatment for his medical condition. Michigan may also become burdened by the cost of medical
Applying Iowa's limitations period would frustrate a substantial interest of Michigan, the state with a closer connection with the case. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 142 cmt. g ("the forum should not entertain a claim when doing so would not advance any local interest and would frustrate the policy of a state with a closer connection with the case and whose statute of limitations would bar the claim"). The Restatement's writers have recognized that "[t]he basic purpose of a statute of limitations is to protect both the parties and the local courts against the prosecution of stale claims. A state has a substantial interest in preventing the prosecution in its courts of claims which it deems to be `stale.'" RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 142 cmt. f.; see Washburn, 319 F.3d at 343 (recognizing that the purpose of statute of limitations "is essentially two-fold: to protect both defendants and courts from stale claims."); K.E.S. v. United States, 38 F.3d 1027, 1030 (8th Cir.1994) (noting that the purpose of statutes of limitations is "to `protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence,' while `affording plaintiffs what the legislature deems a reasonable time to present their claims.'") (quoting United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)); see also Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1166 (7th Cir.1997) ("Statutes of limitations are ordinarily for the protection of defendants[,] ... but they also protect the courts from the burden of adjudicating old claims." (citations omitted)). Michigan has a three year statute of limitations for personal injury claims and does not recognize the common law discovery rule. Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378, 738 N.W.2d 664, 670 (2007). Michigan's substantial interest in preventing the prosecution of stale claims would be frustrated by application of Iowa's limitations period because it would impose the common law discovery rule in direct contravention of Michigan's statutory scheme.
Thus, I conclude that Iowa does not have a substantial interest in the Stults' claims and turn to the issue of whether the Stults' claims are barred under Michigan law.
The Michigan statute of limitations for products liability claims is three years. MICH. COMP. LAWS § 600.5805(10). A products liability claim "accrues at the time the wrong upon which the claim is based was done regardless of the time when damage
Application of Michigan Compiled Law § 600.5827 and Trentadue, here, requires the conclusion that the Stults' negligence and breach of implied warranty claims are time-barred. The relevant statutory period for products liability claims is three years and that period began to accrue when the wrong occurred or, more specific to this case, when David ate microwave popcorn containing the Flavoring Defendants' butter flavorings containing diacetyl. See Smith v. Stryker Corp., No. 294916, 2011 WL 445646, at *1 (Mich.Ct. App. Feb. 8, 2011) (holding in products liability case that the "wrong occurred" during plaintiff's use of the product).
It is undisputed that the only brand of microwave popcorn David ate that contained any of the Flavoring Defendants' butter flavorings containing diacetyl was ConAgra's Orville Redenbacher Butter. The Flavoring Defendants stopped selling butter flavorings containing diacetyl, including the Orville Redenbacher flavorings, by January 2005. The summary judgment record does not disclose the last time David ate microwave popcorn containing butter flavorings with diacetyl. Even assuming, for the sake of argument, that David purchased and ate some of the last Orville Reddenbacher Butter microwave popcorn containing the Flavoring Defendants' butter flavorings containing diacetyl, the Stults' negligence and breach of implied warranty claims accrued, collectively, at some point in 2005. Therefore, the Stults' August 24, 2011, negligence and breach of implied warranty claims are time barred under Michigan law.
Thus, I find under Restatement § 142 that Michigan's three year statute of limitations applies to the Stults' claims. For the reasons discussed above, I find that the Stults' negligence and breach of implied warranty claims are time barred under Michigan law. Therefore, the Flavoring Defendants' joint motion for summary judgment as to the Stults' negligence and breach of implied warranty claims is also granted.
Since I have granted summary judgment on the Stults' strict liability, negligence, and breach of implied warranty claims, Barbara's loss of consortium claim fails as a matter of law, as it is entirely derivative. See Wesche v. Mecosta Cnty. Rd. Comm'n, 480 Mich. 75, 746 N.W.2d 847 (2008) (Weaver, J. concurring in part and dissenting in part) ("A claim for loss of consortium is a separate legal claim for damages suffered not by the injured party, but by a spouse, parent, or child who claims damages for the loss of the injured party's society and companionship. It is a derivative claim in that it does not arise at
Accordingly, for the reasons discussed above, it is ordered:
1. Defendants International Flavors and Bush Boake's Joint Motions For Partial Summary Judgment On Plaintiffs' Strict Liability Claim are granted.
2. Defendants International Flavors and Bush Boake's Joint Motions For Partial Summary Judgment As To Counts II-IV Based On Michigan's Three-Year Statute Of Limitation is granted.
3. Defendants International Flavors and Bush Boake's Joint Motion For Partial Summary Judgment Regarding Failure To Warn is denied as moot.
4. Defendants International Flavors and Bush Boake's Joint Motion For Summary Judgment on Plaintiffs' Breach of Implied Warranty Claim is denied as moot. Judgment shall enter accordingly.
