Johnson v. Centrome Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

RICHARD JOHNSON and DEANNA )

JOHNSON, )

)

Plaintiffs, )

) Cause No. 2:20-CV-165-PPS-JPK

v. )

)

CENTROME, INC., et al., )

)

Defendants. )

)

OPINION AND ORDER

This case presents challenging questions under the Indiana Product Liability Act

(“IPLA”), specifically its applicability in the context of toxic torts. From 1992 to 1999,

Richard Johnson worked for ConAgra Brands, Inc. at the Orville Redenbacher Popcorn

Factory in Valparaiso. In the course of his employment, Mr. Johnson was allegedly

exposed to toxic flavoring chemicals containing diacetyl, 2,3-hexanedione, and 2,3-

heptanedione, causing him to develop a respiratory illness. Through this action, Mr.

Johnson (and his wife) seek to recover damages for his injuries from various companies

alleged to have manufactured, supplied, distributed, and sold toxic flavorings used at

the Valparaiso facility.

The sole named defendant remaining in the case, Givaudan Flavors Corporation,

filed a motion for summary judgment [DE 169; DE 170; DE 182], arguing that Plaintiffs’

product liability claims are time-barred under the IPLA statute of repose, Ind. Code § 34-

20-3-1(b). Because there is no dispute that the Johnson’s product liability claims were

brought years after the deadline prescribed by the applicable statute of repose, summary

judgment must be entered for Givaudan.

Procedural Background

I previously detailed the relevant background on the parties and Johnson’s

operative complaint [see DE 137], but for convenience sake I’ll provide a brief summary

of the case to date. The initial complaint asserted sprawling tort claims against fifteen

defendants. Then, in the amended complaint, Johnson dropped some defendants and

then later voluntarily dismissed several others. [DE 29; DE 34; DE 48; DE 74; DE 134; DE

154; DE 161; DE 164; DE 226.] The remaining defendants filed or joined motions to

dismiss on various grounds [DE 61; DE 77], and I granted those motions in part [DE 137].

In summary, I determined that Plaintiffs’ fraudulent concealment and negligence claims

were subsumed by their IPLA claims and thus merged those claims into causes of action

for manufacturing defect, design defect, and failure to warn. [DE 137 at 4–5.] In doing so,

I concluded that Johnson’s allegations relating to products containing “diacetyl, 2,3-

hexanedione, and 2,3-heptanedione” alleged plausible IPLA claims. Id. at 5–9.

What is left in the case are claims against Givaudan, one of the companies alleged

to have sold butter flavors containing diacetyl to ConAgra used in the production of

microwave popcorn during the time period Johnson worked at its Valparaiso facility.

Johnson’s claims sound in product liability (Counts 1–5), as well as a derivative claim for

his wife’s loss of consortium (Count 6). He asserts that Givaudan “imported, extracted,

formulated, manufactured, supplied, distributed, and sold diacetyl, including the

2

diacetyl that caused . . . injuries to his respiratory system and related illnesses and

injuries[.]” [DE 34, ¶ 13.] As I acknowledged in my prior order, Johnson previously

conceded that his fraudulent concealment and negligence claims were subsumed by the

IPLA. [DE 83 at 2 n.1; DE 137 at 5.] While at that time, Johnson “reserve[d] the right to

assert fraudulent concealment in the event any defendant asserts this action is time

barred,” id., he has not sought leave to amend the operative complaint.

The parties briefed Givaudan’s motion for summary judgment and I held a

hearing on the motion. [DE 169; DE 170; DE 180; DE 182; DE 204.] The heart of the

dispute is whether Johnson’s claims fall under a judicially-created exception to the IPLA

statute of repose. See generally Covalt v. Carey Canada, Inc., 543 N.E. 2d 382 (Ind. 1989).

Following the hearing, the parties were instructed to submit supplemental briefs more

squarely addressing this issue and properly setting forth any facts material to

application of the statute of repose that are in genuine dispute. [DE 205.] The motion for

summary judgment then pending was vacated; and Givaudan was granted leave to

reinstate the motion following the supplemental briefing. Id. The parties subsequently

filed supplemental briefs and statements of material facts in dispute teeing up the

relevant issues [see DE 210; DE 211; DE 215; DE 216; DE 218; DE 219], and Givaudan later

moved to reinstate its motion for summary judgment [DE 248]. As indicated at the

hearing, the motion for summary judgment [DE 169] will be reinstated and I now take

the matter up with the benefit of the parties’ supplemental briefing.

3

Undisputed Facts

Richard Johnson worked at ConAgra’s microwave popcorn plant in Valparaiso

from 1992 until 1999. He was a utility worker and machine operator from 1992 to 1996,

then a batch deck compounder from 1996 to 1998. [DE 215 at 2; DE 211 at 9–10.] As a

batch deck compounder, he worked on the “batch deck,” a location indoors on the

production floor where workers would stir up batches of the salt, oil, and flavoring

mixture that would eventually go into bags of Orville Redenbacher microwave popcorn.

After the summer of 1998, Johnson worked in “raw materials,” a position in which he

was outside “99.9 percent of the time,” entered the facility roughly “[o]nce a day,” and

was not directly handling any of the flavoring products at issue. [DE 215-2 at 41.] While

he worked in the raw materials department, he began experiencing shortness of breath

accompanied by a cough and wheezing. [DE 211-1 at 9–10, 14–15.]

Givaudan sold butter flavorings to ConAgra’s Valparaiso plant while Johnson

worked there. Based on the company’s review of available sales data, its only sales of

flavors to ConAgra’s Valparaiso plant “occurred in 1994 and January 1995.” [DE 170-1,

¶¶ 2–4.] So, the last point in time Johnson could have come in contact with toxic

chemicals that Givaudan allegedly supplied to the ConAgra plant would be January

1995 – twenty-five years prior to the filing of this action. Johnson does not dispute this

point.

Johnson testified at his deposition that near the end of his employment at

ConAgra in August 1998, he was experiencing “shortness of breath.” At the time, he

4

continued to experience shortness of breath with coughing and wheezing any time he

had any type of physical exertion; and the shortness of breath would typically last four

to five minutes. As explained below, for the next decade, he routinely sought and

obtained treatment for chronic respiratory illness – ultimately culminating in an open

lung biopsy and diagnosis of “chronic bronchiolitis with bronchiectasis and mucostasis”

by physicians at the Mayo Clinic in early 2009.

Several times in 1998, Johnson went to his primary care doctor, Dr. Kenneth

Black, to seek treatment for his lung problems. [See DE 211-1 at 15–18, 33–35.] Johnson

told his doctor that he has “trouble breathing. I work around corn.” Id. at 33. Notes from

these visits suggest that Johnson was struggling quite a bit with shortness of breath – it

was “[a]ffecting [his] life-style,” occurred at work and at home, Johnson was unable to

“exert as much at home,” and “medication does not appear to be helping.” Id. at 35.

In 1999, Dr. Black referred him to a new pulmonologist, Dr. Mazurek. Id. at 18; see

id. at 35 (handwritten note reflecting referral March 18, 1999). Dr. Mazurek proceeded to

treat Johnson once every four months for the next few years. Id. at 18. After treating with

Dr. Mazurek for several years, Johnson started treating with another pulmonologist,

Dr. Ahmed. Id. Johnson recalled treating with Dr. Ahmed approximately twice a year for

a period of three to five years. Id. Neither Dr. Mazurek nor Dr. Ahmed ordered Johnson

to undergo a pulmonary function test. However, Johnson testified that he continued to

have shortness of breath throughout this period and the physicians treated him with

5

medications designed to block the action of inflammatory chemicals in the body that

cause lung inflammation, as well as rescue inhalers. Id.

In 2008, Johnson went to a third pulmonologist, Dr. Wu, who continued treating

his chronic respiratory illness. Johnson was prescribed prednisone tablets. Additionally,

he recalled that Dr. Wu ordered a chest X-ray, CT scan, and bronchoscopy. [DE 211-1 at

19.] Johnson further testified that the bronchoscopy did not provide sufficient

information for Dr. Wu to provide a diagnosis of his respiratory illness, so Dr. Wu

ordered an open lung biopsy to follow up. Id. In November 2008, Johnson also recalled

undergoing a pulmonary function test. Id. at 21. At the time of the test, Johnson had been

experiencing shortness of breath, which he was treating with a rescue inhaler; but he did

not report any other symptoms. Id.

In January 2009, Johnson underwent a surgical lung biopsy at La Porte Hospital.

Id. at 38–41. The lab results were reviewed by Dr. Anja Roden and Dr. Eunhee Yi at the

Mayo Clinic, who provided a “final pathologic diagnosis” of “chronic bronchiolitis with

bronchiectasis and mucostasis.” Id. at 41. Features of Johnson’s lungs were characterized

as “more consistent with small airway disease with bronchiolar metaplasia,” than with

usual interstitial pneumonia (“UIP” - a form of lung disease characterized by

progressive scarring of both lungs). Id.

Johnson later conceded in discovery filings that, at this point in January 2009, he

was diagnosed with “chronic bronchiolitis with bronchiectasis and mucostasis” and

“interstitial lung disease.” [DE 166 at 3 (citing DE 166-1 (Plattenberger Decl.), ¶¶ 5–6).] In

6

the same filing, Johnson represented to the Court that “[d]octors at the Mayo Clinic

confirmed the diagnosis,” and he “was told that he had contracted biopsy confirmed

bronchiolitis—known today colloquially as ‘popcorn lung’ because of its relationship to

popcorn butter flavoring containing diacetyl—a rare, severe, and permanent narrowing

of the bronchial tubes in the lungs.” Id.

This is an important admission, as discussed in greater detail below, because

Plaintiffs claim that exposure to diacetyl can cause a variety of respiratory problems,

including chronic cough, shortness of breath, and “other respiratory illness and disease,”

and that as a result of exposure to diacetyl, Mr. Johnson “sustained injuries to his

respiratory system and related illnesses and injuries.” [DE 34, ¶ 41; see id., ¶¶ 13, 23, 84.]

In other words (and his own words in filings submitted to the Court), as of January 2009,

Johnson had been diagnosed with “biopsy confirmed bronchiolitis,” also known as

“popcorn lung” – the exact type of respiratory injury for which he seeks redress.

Discussion

Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A motion for summary judgment has been described as the time in a lawsuit to

“put up or shut up.” Grant v. Trustees of Indiana University, 870 F.3d 562, 568 (7th Cir.

2017). If it is clear that a plaintiff will be unable to satisfy the legal requirements

necessary to establish his or her case, summary judgment is not only appropriate, but

7

mandated. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ziliak v. AstraZeneca LP,

324 F.3d 518, 520 (7th Cir. 2003).

A genuine dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact

exist, the court construes all facts in a light most favorable to the non-moving party and

draws all reasonable inferences in favor of the non-moving party. See id. at 255.

However, neither the “mere existence of some alleged factual dispute between the

parties,” id. at 247, nor the existence of “some metaphysical doubt as to the material

facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat

a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687,

692 (7th Cir. 2000). And not every factual dispute between the parties makes summary

judgment inappropriate. “Only disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248.

Defendants assert that all of Mr. Johnson’s remaining claims (Counts 1–5) are

governed by the IPLA statute of repose. The sole exception is Mrs. Johnson’s derivative

claim for loss of consortium (Count 6). But while this derivative claim is not subject to

the IPLA statute of repose, it rises and falls with the IPLA claims. See Palmer v. Gorecki,

844 N.E.2d 149, 156–57 (Ind. Ct. App. 2006) (holding that derivative “consortium claim is

not viable,” in light of summary judgment on spouse’s underlying claims under statute

8

of limitations); Bender v. Peay, 433 N.E.2d 788, 792 (Ind. Ct. App. 1982) (“[A] loss of

consortium claim cannot be brought when the injured spouse's claim has been

adjudicated and lost.”). Therefore, my focus will remain on Mr. Johnson’s tort claims.

I. The IPLA Statute of Repose

In this diversity case, I apply Indiana’s substantive law to determine whether

Plaintiffs’ tort claims are untimely. Tolen v. A.H. Robins Co., 570 F. Supp. 1146, 1149 (N.D.

Ind. 1983) (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938); Goldberg v. Medtronic,

686 F.2d 1219 (7th Cir. 1982)). A statute of repose places “an outer limit on the right to

bring a civil action,” measured “not from the date on which the claim accrues but instead

from the date of the last culpable act or omission of the defendant.” CTS Corp. v.

Waldburger, 573 U.S. 1, 8 (2014).

The IPLA statute of repose can be found at Indiana Code § 34-20-3-1(b), and it’s

an affirmative defense. Jurich v. John Crane, Inc., 824 N.E.2d 777, 780 (Ind. Ct. App. 2005)

(citing Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000)). Here’s what the

statute says:

[A] product liability action must be commenced:

(1) within two (2) years after the cause of action accrues; or

(2) within ten (10) years after the delivery of the product to the initial user

or consumer.

However, if the cause of action accrues at least eight (8) years but less than

ten (10) years after that initial delivery, the action may be commenced at

any time within two (2) years after the cause of action accrues.

9

The Supreme Court of Indiana has interpreted subsections (1) and (2)

conjunctively, noting that the “clear intention of the legislature . . . was to limit the time

within which product liability actions can be brought.” Estabrook v. Mazak Corp., 140

N.E.3d 830, 836 (Ind. 2020) (citation omitted); Braswell v. Flintkote Mines, Ltd., 723 F.2d

527, 529 (7th Cir. 1983) (noting the statute provides “a two-year statute of limitations,

limited by a ten-years-from-delivery clause”). In other words, an action subject to the

IPLA statute of repose must be brought “within two years after it accrues, but in any

event within ten years after the product is first delivered to the initial user or consumer,

unless the action accrues more than eight but less than ten years after the product’s

introduction into the stream of commerce.” Dague v. Piper Aircraft Corp., 418 N.E.2d 207,

210 (Ind. 1981). As the Supreme Court of Indiana recently reiterated, there is a limited

statutory exception to this rule: if a cause of action accrues at least eight, but less than

ten years after initial delivery of the product, the cause of action may be commenced at

any time within two years after it accrues. Estabrook, 140 N.E.3d at 831–32. The only

other exception is a judicially-created one dealing with allegations of latent harm from

exposure to asbestos. Myers v. Crouse-Hinds Div. Of Cooper Industries, Inc. 53 N.E. 3d

1160 (Ind. 2016). (More on that later.)

In Estabrook, the plaintiff was harmed while working on a defective machine

owned by his employer. He filed a product-liability suit that would have been barred

by the express terms of the IPLA statute of repose. The question presented was whether

the court should apply “a judicially created exception to the statute of repose” to extend

10

the ten-year time limit based on “post-sale repair [or] refurbishment [or] reconstruction

of the product,” and if so, how to determine when the supplier of a product “has done

sufficient work to trigger the extension[.]” 140 N.E.3d at 832–33. Applying the plain

language of the statute, the Court held that unless the statutory exception applies, the

“ten-year limitations period cannot be extended for any other reason – including a

manufacturer’s post-sale repair, refurbishment, or reconstruction of a product.” Id.

While the parties presented good arguments for either approach, the Supreme Court

determined that narrow construction of the period of repose was necessary to give

effect to the “legislature’s policy choices” and “stated preferences.” See id. at 834–36.

As a threshold issue, the parties dispute who carries the burden of

demonstrating Plaintiffs’ claims are barred under the statute of repose. They appear to

agree that where the burden falls is a matter of substantive law, and thus Indiana law

controls the issue. Givaudan directs my attention to Avery v. Mapco Gas Products. In

Avery, the Seventh Circuit concluded that the party asserting that a claim is barred by

the IPLA statute of repose bears an “initial burden” to present evidence “tending to

show” that the claims are untimely under its plain terms. 18 F.3d 448, 452 (7th Cir. 1994)

(citing Hefti v. Internal Revenue Service, 8 F.3d 1169, 1171 (7th Cir. 1993)). Applying state

law, the court further held that once the movant makes this showing, the party

opposing application of the statute of repose must “come forward with evidence

sufficient to establish a establish a genuine factual dispute.” Id. (citing Nichols v. Amax

Coal Co., 490 N.E.2d 754, 755 (Ind. 1986)). Under Indiana law, the party opposing

11

summary judgment “would bear the burden . . . of establishing avoidance of the statute

of repose,” meaning an opponent’s “failure to offer proof sufficient to support a jury

finding in their favor on this point would compel summary judgment” in favor of the

movant. Id.

Plaintiffs argue that Avery came down prior to a 1998 amendment to the IPLA.

The amendment, in pertinent part, provides that the burden of proof in any defense in

an action under the IPLA is on the party raising the defense. Ind. Code § 34-20-6-2.

From my review of the case law, the amendment does not appear to have changed the

burden-shifting framework acknowledged in Avery. See Blackford v. Welborn Clinic, 172

N.E.3d 1219, 1223 (Ind. 2021); Jurich, 824 N.E.2d at 780 (where defendants

“undisputedly established” suit was brought after statute of repose expired, the

“burden was on the [plaintiffs] to demonstrate a material issue of fact that would avoid

application of the statute of repose”).

Following the Seventh Circuit’s approach in Avery, and the approaches of a

handful of district courts that have encountered similar issues since the 1998

amendment to the IPLA, I find that Givaudan bears the initial burden of establishing

the action was commenced beyond the statutory period; then, the burden shifts to

Plaintiffs to establish a genuine dispute of material fact as to whether their claims avoid

the statute of repose. See 18 F.3d at 452; C.A. v. AMLI at Riverbend, L.P., 2008 WL 140801,

at *5 (S.D. Ind. Jan. 10, 2008); Miller v. Honeywell Int'l Inc., 2001 WL 395149, at *6 (S.D.

Ind. Mar. 7, 2001).

12

II. Plaintiffs’ Claims Were Undisputedly Filed After the Expiration of the

Ten-Year Statute of Repose

Evaluating the evidence in light of the parties’ respective burdens, I find there is

no material dispute that this lawsuit was filed more than ten years after the last point

when Mr. Johnson could have come in contact with toxic flavoring chemicals supplied

by Givaudan that could have been used at the Valparaiso facility.

This case was filed in April 2020. Johnson’s employment at ConAgra ended more

than two decades earlier, establishing a temporal bound on when he could have come

in contact with Givaudan’s flavorings. Johnson testified that he worked as a “batch deck

compounder” starting in 1996. This was the only role in which he interacted directly

with flavoring chemicals. Givaudan’s last supply of flavorings to the ConAgra plant

while Johnson worked there occurred in January 1995.

Applying the plain terms of the IPLA statute of repose, Mr. Johnson’s claims

(and therefore his wife’s) fail as a matter of law. If he was exposed to any toxic

flavorings supplied by Givaudan, Johnson would have last been exposed in 1995 –

meaning that he had until 2005 to file his claims. Even assuming that Johnson was

exposed on his final day of work in 1999 (and there is no evidence supporting such a

conclusion), his claims would still be hopelessly stale. And under the limited statutory

exception addressed in Dague and Estabrook, Johnson’s claims are similarly barred based

on his last possible exposure to a flavoring product supplied by Givaudan. If Johnson

was last exposed to Givaudan’s toxic chemicals in 1995, and his claims accrued between

13

eight to ten years down the line (2003 or 2004), then he was required to file his claims in

the next two years (by 2006). He was fourteen years late.

Having concluded that Givaudan has undisputedly established that this action

was brought after IPLA statute of repose expired, I will now consider whether Plaintiffs

have demonstrated any genuine dispute of material fact that would avoid application of

the statute of repose.

III. Johnson’s Tort Claims are Governed by the IPLA

Evaluating whether Plaintiffs have set forth evidence sufficient to establish a

triable dispute that avoids application of the statute of repose raises a seemingly

obvious question: is Mr. Johnson really asserting a product liability claim, as opposed to

an independent tort like negligence? The parties did not address this issue head-on in

their briefs. But it strikes me that Mr. Johnson (a worker exposed to flavoring chemicals

used to create a buttery mixture later incorporated into microwave popcorn) is not the

typical product liability plaintiff. When one thinks about strict liability for defective

products, the mind conjures up images of a poor fellow injured by a bum blade on a

lawnmower, or a weed wacker with an inadequate warning label – not a worker at an

industrial plant mixing chemicals into a “slurry” mixture, several steps removed from a

finished product.

I previously ruled that the IPLA subsumed Plaintiffs’ separate tort claims

sounding in negligence in fraudulent misrepresentation. [DE 137 at 4–5.] While I do not

believe it is necessary to revisit that ruling, and the parties appear to agree that the

14

IPLA applies, whether Plaintiffs’ claims sound in products liability now appears to be a

case-dispositive issue. I will therefore pause to consider antecedent questions bearing

on whether Johnson’s claims are in fact governed by the IPLA. Because my review of

the relevant state law persuades me that Plaintiffs’ claims are, indeed, covered by the

plain terms of the IPLA, I do not need to evaluate whether the claims are timely under

limitations periods applicable to independent torts not sounding in product liability.

As construed by the Supreme Court of Indiana, the IPLA governs “all actions”

brought by a “user or consumer” of a product against a manufacturer or seller “for

physical harm caused by the product,” regardless of the “substantive legal theory or

theories upon which the action is brought.” Campbell v. Supervalu, Inc., 565 F. Supp. 2d

969, 976 (N.D. Ind. 2008) (citing Dague, 418 N.E.2d at 212); see Ind. Code § 34-20-1-1

(providing that IPLA governs all actions brought by a user or consumer against a

manufacturer or seller for physical harm caused by a product).

The law is clear that personal injury claims stemming from alleged defects in a

defendant’s product fall under the scope of the IPLA. See, e.g., Stegemoller v. AcandS, Inc.,

767 N.E.2d 974, 975–76 (Ind. 2002) (construing Dague, 418 N.E.2d at 212) (holding that

IPLA covered claims asserted by worker’s spouse, who contracted asbestos-related

illness after husband brought asbestos fibers home on his clothing); Butler v. City of Peru,

733 N.E.2d 912, 919 (Ind. 2000) (holding that claims by maintenance employee of high

school harmed while attempting to fix defective electrical outlet on property were

covered by IPLA). Here, Johnson seeks redress for personal injuries suffered as a result

15

of exposure to toxins in defective flavoring chemicals, so this “action” is one “for

physical harm caused by the product.” See Campbell, 565 F. Supp. 2d at 976.

But whether Johnson qualifies as a “user or consumer” of a defective product

presents a more difficult question. See Ind. Code § 34-20-1-1. The determination who

qualifies as a “user or consumer” under the statutory definitions “is a legal question, to

be decided by the court.” Stegemoller, 767 N.E.2d at 975 (citing Estate of Shebel v. Yaskawa

Elec. Am., Inc., 713 N.E.2d 275, 279 (Ind. 1999)). A “user” is defined as a consumer; and a

“consumer” could be a few species of individuals: (1) “a purchaser”; (2) “any individual

who uses or consumes the product”; (3) “any other person who, while acting for or on

behalf of the injured party, was in possession and control of the product in question”; or

(4) “any bystander injured by the product who would reasonably be expected to be in the

vicinity of the product during its reasonably expected use.” Ind. Code §§ 34-6-2-29

(“Consumer”) (emphasis added), 34-6-2-147 (“User”).

Here, Johnson did not purchase the flavoring chemicals (ConAgra did), and

there is no evidence that he “consume[d]” them. He, of course, was the injured party

(not “any other person”). But is he properly characterized as an “individual who uses . .

. the product,” or as an injured “bystander?” I have purposely italicized those

provisions in the above quotation to draw attention to the fact that those are the only

categories that potentially cover Johnson. And if they do, his claim must be governed

by the IPLA.

16

Johnson, a worker tasked with combining various inputs into slurry, was

certainly an individual who “uses . . . the [flavoring chemicals]” allegedly supplied by

Givaudan. Those chemicals, delivered to ConAgra in the final state intended for their

use at the facility, were not going straight into bags of popcorn. As anyone in the trade

(including Givaudan) would surely anticipate, the flavorings were inputs to a

completely different product: buttery slurry. The fact that Givaudan’s defective

flavorings would eventually be incorporated indirectly into microwave popcorn sold to

retail consumers does not change the fact that Givaudan manufactured and supplied

the flavorings in their final state intended for use in commerce by ConAgra, as the

direct purchaser, and “use[d]“ by Johnson as a batch maker.

The “bystander” language also applies to Johnson’s situation. The relevant

question is whether it was reasonably foreseeable that he would be in the vicinity of the

flavoring chemicals supplied by Givaudan to ConAgra during their “reasonably

expected use.” It seems pretty obvious that Givaudan, as a supplier of flavoring

chemicals, could have reasonably foreseen that batch makers like Johnson would have

been in the direct vicinity of the flavoring inputs in the course of producing batches of

buttery slurry. And, indeed, according to his complaint, Johnson all but concedes the

point. Here’s what he tells me: “[I[n a manner reasonably foreseeable to all Defendants,

in the course of his employment [Johnson] handled, mixed, blended, and/or

incorporated into finished products toxic flavorings in a manner that created fumes and

vapors, which he inhaled.” [DE 34, ¶ 45.]

17

Case law also supports the view that Johnson is a “user or consumer” of the

flavoring products at issue. It has long been clear that the statutory definition does not

“include one who merely acquires and resells” a defective product. Estate of Shebel v.

Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 278 (Ind. 1999) (citing Thiele v. Faygo Beverage,

Inc., 489 N.E.2d 562 (Ind. Ct. App. 1986)). At the same time, “us[ing] the [product] for its

intended end use,” including “the production” of new materials, can qualify an

individual as a “‘user’ as this term is employed in the Act.” Id. at 279. In Shebel, the

decedent was hit in the chest by a piece of a computer-controlled lathe, which crashed

as he was delivering a bill to the lathe operator. Id. at 277. The record reflected that the

machine was “used” to “manufacture parts at trade shows,” so the claims did not

involve mere “possession of the lathe only for resale or for assembling its component

parts,” but rather a product “used . . . for its intended end use.” Id. at 279.

Butler v. City of Peru and Stegemoller v. AcandS, Inc. are also instructive. In Butler,

the Supreme Court of Indiana considered IPLA claims brought by a maintenance

employee of a high school who was harmed while trying to fix a defective electrical

outlet on the property. While the school was considered the “consuming entity” of the

electricity, and there was no suggestion that the plaintiff was an end user or retail

consumer of the electricity or the outlet through which it coursed, the plaintiff’s injuries

were nevertheless covered by the IPLA. 733 N.E.2d at 919. Similarly, in Stegemoller, the

Court construed the IPLA to apply to a worker’s spouse who contracted asbestos-

related illness from fibers that her husband brought home from work on his clothing.

18

767 N.E.2d at 976. The Court rejected the argument that the spouse was not a “user or

consumer” of the product as “too narrow a view” and inconsistent with the Act’s

purposes. Id.

It is true that another line of decisions suggests that Indiana law does not

recognize a cause of action in product liability unless the product at issue was sold to

end consumers. While Johnson has waived these arguments, they seem to provide some

support for the conclusion that Johnson was not a “user or consumer” within the

meaning of the Act. In Thiele v. Faygo Beverage, Inc., the plaintiff suffered injuries while

unloading bottles of soda pop due to a defect in the packaging. 489 N.E.2d at 585–86.

The court held that the IPLA limits “users” or “consumers” to individuals who suffer

foreseeable harms from a defective product “at or after the point of its retail sale or

equivalent transaction with a member of the consuming public.” Id. at 586. Because the

plaintiff was a “‘middle man’ who [came] into contact with the product after it . . .

entered the stream of commerce but before it reache[d] the ultimate consumer of the

product,” see id. at 574, 585, he suffered an injury prior to a “‘sale’ to a ‘first consuming

entity,’” and therefore he was not “entitled to the benefit of the strict liability theory of

recovery stated” in the IPLA, id. at 588.

In Vaughn v. Daniels Co. (W. Virginia), the Supreme Court of Indiana endorsed

Thiele’s logic while clarifying when a product is in a “final state” sufficient to trigger

IPLA liability. 841 N.E.2d 1133, 1142 (Ind. 2006). After suffering injuries on the job while

installing a “heavy media coal sump” (part of a coal preparation plant), the plaintiff in

19

Vaughn asserted claims against his employer and the company with whom it had

contracted to construct the coal preparation plant. Id. at 1136. Initially, the Court noted a

“majority of other courts, including the Seventh Circuit applying Indiana law,” had

determined that “a products liability claim does not lie where the manufacturer has not

completed its obligation to install or assemble the product but is available where the

purchaser is required to install or assemble it.” Id. at 1142 (citing Lantis v. Astec Indus.,

Inc., 648 F.2d 1118, 1121–22 (7th Cir. 1981)). The Court also acknowledged the “Court of

Appeals’s view” in Thiele. Id. Applying Thiele’s verbiage, the Court held that the

underlying contract to design, install, and construct a coal preparation plant—including

the coal sump that the plaintiff was installing while he was injured—”was a transaction

‘equivalent’ to a ‘retail sale’ because it lodged the product with the buyer.” Id. In

making this determination, the Court clarified that “[a] PLA claim . . . requires that the

product be in the final state called for by the arrangement between the buyer and the seller.” Id.

(emphasis added).

Thiele itself acknowledged that denying strict liability protection to employees of

entities “in the distributive chain preceding the sale of a product to a ‘first consuming

entity’” stands in logical tension with the legislature’s extension of such protection to

bystanders. The court specifically noted that the rationale for extending the IPLA was

“equally applicable” for both groups, suggesting that “a person in Robert Thiele’s

position . . . is as deserving of the protection of our Product Liability Act as any

bystander.” Id. at 588 (emphasis added). Notwithstanding this apparent logical

20

inconsistency, other courts have followed Thiele’s reasoning to conclude that claims

should be excluded from the scope of the IPLA. See, e.g., Davis v. Lippert Components

Mfg., Inc., 95 N.E.3d 200 (Ind. Ct. App. 2018); First Nat’l Bank of Danville v. Sys. Transp.,

Inc., 2005 WL 8178975, at *4 (N.D. Ill. May 17, 2005) (holding that family injured in car

accident by allegedly defective construction lifts being transported on a trailer could not

proceed under IPLA because the “[t]ransportation of the lifts is not a reasonable

expected use to trigger bystander liability under the Act”).

Davis arguably mirrors the claims at issue in this case. There, a “box installer”

was injured in the course of installing a component to a towable travel trailer. 95 N.E.3d

at 200–01. The Indiana Court of Appeals affirmed summary judgment on the plaintiff’s

product liability claims because he qualified neither as an “individual who uses or

consumes the product,” nor a “bystander.” Id. at 202. The court reasoned that the

product that harmed the plaintiff, a “Schwintek System In-Wall Slide Out” that his

employer manufactured for incorporation into trailers and also sold direct-to-consumer,

“was never intended or expected to ‘reach the ultimate user or consumer in an

unassembled or uninstalled form.’” Id. at 203 (quoting Vaughn, 841 N.E.2d at 1141). The

production of towable trailers required assembly and installation of the system, after

which the “trailer then needed to go through three more departments—trimming, final

finish hangs, and a rain tunnel to check for leaks—before it was put in the yard and

eventually sent to a dealer.” Id. (“Davis’s installation of the box and the Schwintek

System was part of the assembly and manufacture of the trailer before being released

21

into the stream of commerce for public consumption.”). The court noted that allowing

the plaintiff to sue in strict liability would “controvert the exclusivity of the remedy”

provided in the State’s Workers Compensation System, and cause the statute of

limitations for claims brought by the “ultimate purchasers of a trailer or recreational

vehicle” to hinge on “the delivery date of a component part to a manufacturer, and not

on the delivery date of the finished product to the consumer.” Id. at 203–04.

While Davis, Thiele, and Vaughn bear some similarities to Johnson’s situation, I

am not persuaded that these authorities remove him from the ambit of the IPLA. The

law on this point is not crystal clear, but requiring a retail sale of microwave popcorn to

trip IPLA liability would border on the absurd. The flavoring chemicals at issue were

allegedly manufactured and delivered to ConAgra in the form intended for their

commercial use in the production process that Johnson was tasked with executing. The

flavorings were in the “final state called for by the arrangement between the buyer and

the seller” – here, ConAgra and its flavoring suppliers. Vaughn, 841 N.E.2d at 1142.

They were signed, sealed, delivered following a “transaction ‘equivalent’ to a ‘retail

sale’” that “lodged the product with the buyer,” namely ConAgra. Id. In this sense,

Johnson’s claims are distinguishable from the injuries allegedly caused by the trailer

component in Davis and the coal sump in Vaughn, neither of which were in the final

state called for by the arrangement between the buyer and the seller.

IV. The Applicability of the Asbestos Exception to the Case

Finally, it’s on to Plaintiffs’ main argument for avoidance of the IPLA statute of

22

repose: that the Indiana Supreme Court has carved out a broad exception for products

liability cases involving latent diseases from inherently dangerous products. In sum,

they assert that the gravamen of their product liability claims is Mr. Johnson’s

protracted exposure to inherently dangerous chemicals. Therefore, they argue, a more

relaxed rule should apply to determine the timeliness of the claims, based on when Mr.

Johnson discovered his injuries.

This argument springs from a line of asbestos-related cases, in which Indiana

courts have departed from the plain language of the IPLA statute of repose. I am not

persuaded that Johnson’s case falls into this limited, judicially-created exception for

asbestos cases, for several reasons. The cited cases do not clearly cover Johnson’s

situation, the Indiana General Assembly specifically amended the IPLA statute of

repose to exempt asbestos cases (as opposed to all products liability cases involving

latent diseases from inherently dangerous products), and the record contains ample

evidence that Johnson’s injuries were apparent during his employment at ConAgra (in

contrast to asbestos-related diseases, which lie dormant for decades). Therefore, I will

apply the default statute of repose in the absence of controlling authority to the

contrary.

Plaintiffs rely primarily on Myers v. Crouse-Hinds Division of Cooper Industries,

Inc., 53 N.E.3d 1160 (Ind. 2016), in which the Supreme Court of Indiana “restored as . . .

controlling precedent” the Court’s prior decision in Covalt v. Carey Canada, Inc., 534

N.E.2d 382 (Ind. 1989). See 53 N.E.3d at 1167. In Covalt, the plaintiff alleged that his

23

exposure to raw asbestos, “an inherently dangerous foreign substance,” caused him to

develop a latent disease that he did not discover until more than ten years after his last

exposure to the product. 543 N.E.2d at 384–85. Thus, the question presented was

whether a plaintiff may bring suit “within two years after discovering a disease and its

cause, notwithstanding that the discovery was made more than ten years after the last

exposure to the product that caused the disease.” Id. at 384.

Limiting the decision “to the precise factual pattern presented”— in other words,

to asbestos cases—the Court held that “where the seeds of injury and latent disease are

introduced into the body as a result of protracted exposure to a foreign substance, a

plaintiff’s cause of action cannot be barred by the ten year statute of repose, no matter

when the plaintiff knew or should have discovered the resultant disease.” Id. at 385,

387. The Court emphasized the “long latency period between exposure and

manifestation in asbestos-related diseases,” in concluding that the legislature did not

intend to require a claimant in this situation to bring a product liability action within

the ten-year limitations period. Id. at 386–87.

After Covalt was partially overruled, see Allied Signal, Inc. v. Ott, 785 N.E.2d 1068

(Ind. 2003),1 the Supreme Court of Indiana revisited the decision in Myers. See 53 N.E.3d

at 1162–63, 1168. The Court in Myers considered consolidated appeals from a group of

1 While Covalt was pending, the state codified Ind. Code § 34-20-3-2, a statute that specifically

applies to certain asbestos-related claims. The Court in Allied Signal determined that Covalt had been

decided under an outdated statutory regime and the state’s “adoption of Section 2" rendered Covalt’s

analysis “obsolete.” 785 N.E.2d at 1077. Although not germane to the facts of this case, the Court

concluded that Section 2 applies only to asbestos claims against defendants who both mined and sold raw

asbestos, leaving “those who sell asbestos-containing products within the ambit of Section 1.” Id. at 1073.

24

plaintiffs alleging injuries from exposure to raw asbestos that did not manifest until the

IPLA statute of repose had run. Id. at 1162–63. The plaintiffs presented evidence that “it

takes about 20 years for a person to be ill enough to be diagnosed with an asbestos-

related disease like asbestosis, and as many as 50 years after exposure for mesothelioma

to be diagnosed.” Id. at 1167–68. While the legal dispute in Myers centered on a

constitutional challenge that is not directly relevant to this dispute, see id. at 1164, the

decision is notable because the Court reinstated Covalt’s exception to the statute of

repose in asbestos-related cases, id. at 1167 (“The relevant facts . . . as alleged by the

plaintiffs, fall within our holding in Covalt.”), 1168 (“[A]s we held in Covalt the Indiana

Product Liability Act’s statute of repose provision does not apply to bar these plaintiffs’

claims for asbestos injury and illness.” (emphasis added)). As in Covalt, the Court relied

on the nuances of latent diseases caused by asbestos (namely, asbestosis and

mesothelioma) to determine that the IPLA statute of repose did not apply to the

plaintiffs’ claims. See id. at 1166, 1168 (noting long latency period and no visible signs or

symptoms of such diseases).

Plaintiffs assert that Covalt and Myers apply more broadly to all cases where a

consumer is harmed by “protracted exposure to [any] foreign substance”— not just

asbestos. [DE 179 at 4; DE 216 at 3–7.] And indeed, there is some dicta in the decisions

suggesting that the Supreme Court intended to exempt from IPLA’s scope all latent

diseases caused by sustained exposure to inherently dangerous substances broadly,

rather than only asbestos-related diseases. In that regard, Plaintiffs rely on an

25

unpublished federal district court decision entered last year. In re Paraquat Products

Liability Litigation, 2022 WL 451898 (S.D. Ill. Feb. 14, 2022). [DE 179 at 4.] There, a

putative class of Indiana residents claimed that they developed Parkinson’s disease as a

result of sustained exposure to paraquat (a toxic chemical widely used as a herbicide)

that the defendants manufactured and distributed. 2022 WL 451898 at *1. In denying the

defendants’ motion to dismiss the claims on the pleadings, the court construed Myers to

broadly exempt harms caused by protracted exposure to an inherently dangerous

foreign substance, “such as asbestos,” from the IPLA’s statute of repose. Id. at *9

(emphasis added). Thus, the court ruled that the claims were “not barred by the statute

of repose” because the plaintiffs had alleged that they were exposed to an “inherently

dangerous foreign substance,” which “caused their Parkinson’s disease.” Id.

Importantly, and unlike in this case, the court specifically noted that the defendants had

conceded that the “statute of repose has been construed by [Indiana] courts to exclude

claims for disease.” Id.

In re Paraquat is ultimately of limited value to Plaintiffs. Beside not having any

precedential value, the decision includes no substantive analysis of the state law and

relies in part on the defendants’ concession that Indiana courts created a broad judicial

exception to the IPLA statute of repose where a case involves “latent diseases” caused

by substances like asbestos. See Reply, DE 812, In re Paraquat, 2022 WL 451898 (S.D. Ill.

Jan. 11, 2022). Plaintiffs provide no state court authorities suggesting that the exception

in Myers and Covalt extends so far, and further fail to grapple with the language in those

26

very decisions expressly cabining the holdings to long-term, difficult-to-discover

diseases caused by asbestos exposure. The fact that other diseases may share some

similarities with asbestosis and mesothelioma cannot overcome a dearth of authority

carving those conditions out of the IPLA statute of repose.

What further seals the point is that the Indiana General Assembly responded to

Covalt by amending the IPLA to specifically exempt claims based on personal injuries

caused by exposure to asbestos. See Indiana Code § 34-20-3-2 (providing that claims for

injury from asbestos exposure may be brought within two years of the plaintiff’s

discovery of asbestos-related injuries, notwithstanding default ten-year statute of

repose). The amendment did not carve out any other conditions: “except for the cause

of action expressly recognized in this section, this section does not otherwise modify the

limitation of action or repose period contained in [Indiana Code 34-20-3-1].” Ind. Code

§ 34-20-3-2(f).

In Myers, the Supreme Court determined that this amendment, as construed by

the state courts, “creat[ed] two disparately treated classifications,” in violation of the

Indiana Constitution. Because the non-severability clause in the amendment required

the Court to “invalidate all of” the exemption, the Court “restored” Covalt as the

“controlling precedent.” 53 N.E.3d at 1166–67. Of course, Myers and Covalt dealt with

asbestos injuries, and Covalt expressly limited its holding to “the precise factual pattern

presented.” 543 N.E.2d at 387. That the state legislature sought to specifically carve out

27

asbestos-related injuries buttresses my conclusion that the ten-year statute of repose

applies unless a claim asserts injuries based on asbestos exposure.

The State of Indiana may conclude that a less punitive statute of repose is

warranted where a plaintiff asserts long-term, latent injuries caused by exposure to

inherently dangerous substances and codify a statutory exception to the IPLA statute of

repose for such claims. But at this point neither its courts nor the General Assembly

appear to have adopted any such rule. My job in this diversity case is to faithfully apply

substantive state law applicable to Plaintiffs’ tort claims, not to take the place of the

General Assembly or Indiana’s appellate courts. I therefore reject Plaintiffs’ argument

that Covalt and Myers establish an exception to the statute of repose in this case.

V. Johnson’s Claims are Untimely Under Indiana Code § 34-11-2-4

Even if one were to conclude that the IPLA statute of repose does not apply to

Mr. Johnson’s claims, I’m not quite sure where that gets him; his claim would still run

headlong into the otherwise applicable statute of limitations. See Ind. Code § 34-11-2-4

(applicable to personal injury negligence actions). In Barnes v. A.H. Robins Co., 476

N.E.2d 84, 87 (Ind. 1985) the Indiana Supreme Court set out the applicable standard for

analyzing the statute of limitations in a toxic tort case. It held that where “an injury to a

plaintiff caused by a disease which may have been contracted as a result of protracted

exposure to a foreign substance, . . . a discovery type rule should be applied, and the

statute of limitations in such causes commences to run from the date the plaintiff knew

or should have discovered that she suffered an injury or impingement, and that it was

28

caused by the product or act of another.” Id. Accordingly, even if I were to adopt

Johnson’s view—that he avoids application of the IPLA statute of repose because his

tort claims are based on “protracted exposure” to toxic chemicals—the result would be

no different: the claims are untimely.

The limitations period started when Johnson knew or in the exercise of ordinary

diligence should have known of his injuries, and therefore expired years prior to the

filing of this action. See id. at 86; Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind.

1992); accord Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1280 (Ind. 2009). The

evidence is clear that many years prior to filing this lawsuit, Mr. Johnson was aware of

and received extensive treatment for the same injuries for which he now seeks to

recover. He claims that prolonged exposure to the toxic chemicals at issue in this case

cause respiratory illnesses, including chronic cough, shortness of breath, and “other

respiratory illness and disease,” and that he “sustained injuries to his respiratory

system and related illnesses and injuries” as a consequence of being exposed to

Givaudan’s flavorings. [DE 215 at 1.] The evidence before me shows “beyond

reasonable dispute” that as early as 1998, he suffered from chronic respiratory illness

consistent with these alleged injuries and consequently sought and obtained treatment

from medical professionals. See Rangel v. Schmidt, 490 F. App'x 808, 810 (7th Cir. 2012)

(affirming order granting summary judgment on plaintiff’s negligence claims under

Ind. Code § 34-11-2-4).

29

Certainly, a reasonable person in Johnson’s position would have been aware of

his alleged injuries no later than January 2009 – when surgical pathologists at the Mayo

Clinic analyzed results of his lung biopsy and diagnosed him with “chronic

bronchiolitis with bronchiectasis and mucostasis.” [DE 211-1 at 41.] Indeed, in the

course of discovery, Johnson identified this 2009 pathology report as a “diagnos[is]” of

the exact variety of lung injury for which he seeks redress in this case. [DE 166; DE 166-

1; DE 215 at 5.] When directly asked to identify any formal diagnoses of the type of

respiratory disease he allegedly developed as a result of protracted exposure to

Givaudan’s toxic chemicals, Johnson conceded that he was put on notice of his

respiratory injuries in 2009. That substantially reinforces my conclusion that there is no

triable dispute that he knew of his injuries at least eleven years prior to the filing of his

lawsuit. Thus, even if I were persuaded that his tort claims are not subject to the plain

terms of the IPLA statute of repose, there is no material dispute that they are untimely

under the applicable statute of limitations.

ACCORDINGLY:

Defendant Givaudan Flavors Corporation’s Motion to Reinstate its Motion for

Summary Judgment Based Upon the Statute of Repose [DE 248] is GRANTED. For the

reasons explained in this opinion and order, Givaudan’s motion for summary judgment

[DE 169] is GRANTED. The Clerk is DIRECTED to enter judgment for Givaudan and

administratively close this case.

SO ORDERED.

30

ENTERED: August 23, 2023.

/s/ Philip P. Simon

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT

31