Motion 6 - product liability plaintiffs response to 615 motion

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Plaintiff's Response to FEMA's Motion to Dismiss Plaintiff's First Amended Complaint

Humphrey, Farrington & McClain, P.C., Kenneth B. McClain (Pro Hac), Steven E. Crick (Pro Hac), Christopher R. Miller (Pro Hac), 221 West Lexington, Suite 400, Independence, Missouri 64050, Telephone: (816) 836-5050, Facsimile: (816) 836-8966 and Toby P. Mulholland, Law Offices of Jason H. Rubens, 205 West Randolph, Suite 1310, Chicago, Illinois 60606, Telephone: (312) 252-5252, Facsimile: (312) 252-5253, Attorneys for Plaintiffs.

Plaintiff Gerardo Solis is a former worker of three different food and flavoring manufacturing plants where he was exposed to butter flavoring and diacetyl. This exposure caused severe, permanent lung injury. Mr. Solis brought products liability claims against the manufacturers of the butter flavoring and diacetyl. He also brought fraudulent concealment and conspiracy claims against a few manufacturers and The Flavors & Extract Manufacturers Association (“FEMA”), a trade organization made up of flavor manufacturers.

FEMA knew that exposure to butter flavoring and diacetyl could cause severe lung disease in workers and concealed that knowledge. FEMA knew that workers like Mr. Solis were in danger. It knew why he was in danger, and it knew how that danger could be prevented. Instead of disclosing this known hazard, FEMA chose to conceal that very information, and as a result Mr. Solis suffered great injury. Now, FEMA attempts to prevent Plaintiff from discovering additional details surrounding its concealment by filing this untimely, improper summary judgment motion disguised as a motion to dismiss.

Mr. Solis has sufficiently alleged all required elements to state a claim of fraudulent concealment. He has also put forth the known supporting facts surrounding FEMA's fraud. And, he has set forth the severe, permanent, and life changing damages he has suffered as a result. He should be given the opportunity to engage FEMA in discovery and seek more fully that truth which has been concealed. Should, upon such discovery, his evidence be wanting, FEMA will surely pursue summary judgment as it is entitled to do. FEMA is not entitled, however, to perpetuate its own fraud by challenging the weight of Mr. Solis' evidence before discovery is even permitted, FEMA's motion to dismiss is wrong on the law and an untimely attack on the evidence. It should be denied.

I. STATEMENT OF RELEVANT FACTS

Plaintiff would not normally recite verbatim the allegations already before this Court. The allegations in Plaintiff's pleadings are so specific however, Plaintiffs believes a review by this Court would put to rest any question about the particularity of the fraudulent concealment claim. Far from being the vague, conclusory statements FEMA describes, they are specific, exhaustive and in compliance with Illinois law and rules of pleading. As relates to Plaintiff's claims against FEMA, Plaintiff alleges:

Nature of the Case

1. Plaintiff Gerardo Solis is a former employee of several flavoring companies located in Illinois. From approximately 1985 to 1988, Mr. Solis worked for Olmarc Packaging (“Olmarc”) at a facility located at 165 W. Lake Street, Northlake, Cook County, Illinois. From approximately 1988 to 1998, Mr. Solis worked for FONA at facilities located at 303 Northfield Road, Northfield, Cook County, Illinois and 525 Randy Road, Carol Stream, DuPage County, Illinois. From approximately 1999 to 2006, Mr. Solis worked for Flavorchem Corporation, 1525 Brook Drive, Downers Grove, DuPage County, Illinois (“Flavorchem”).

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3. Defendant FEMA is and/or was, at all times relevant herein, a trade association for flavoring manufacturers which conspired with the other Defendants to fraudulently conceal the true facts regarding the health consequences of the butter flavorings and/or their constituents from the scientific and medical communities, the government and the public, including Plaintiff. The following Chemical Defendants are or have been members of FEMA: Centrome, Berje, Citrus, Elan; FONA, Givaudan, IFF, Polarome, Penta, Phoenix, Symrise, Ungerer, and Unknown Defendants.

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5. Olmarc is a packaging company that packaged products including microwave popcorn. Plaintiff Solis held positions of assistant supervisor in the mixing area and quality control with Olmarc and during this time was exposed to butter flavoring and diacetyl. Upon information and belief, Olmarc packaged microwave popcorn using butter flavoring products manufactured by FONA, IFF, Givaudan, Symrise, and Unknown Defendants. Those flavor companies manufactured butter flavoring using, among other ingredients, diacetyl.

A. Upon information and belief, FONA purchased diacetyl from Abaco, Centrome, Berje, Citrus, Chemtura, IFC, Penta, Polarome, Ungerer, and Unknown Defendants.

B. Upon information and belief, Givaudan purchased diacetyl from Citrus, Chemtura, Polarome, and Unknown Defendants.

C. Upon information and belief, IFF purchased diacetyl from Centrome, Citrus, Chemtura, Polarome, and Unknown Defendants.

D. Upon information and belief, Symrise purchased diacetyl from Polarome and Unknown Defendants.

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11. In 1986 defendants Berje, Citrus, Elan, Givaudan, and Polarome were named as defendants in Spaulding v. AAPER, et al., Circuit Court of Marshall County, Indiana, Case No. CTC 86-117, filed April 15, 1986 and Kois v. Aceto Chemical Co., et al., Circuit Court of Marshall County, Indiana, Case No. CTC 86-200. The plaintiffs in both actions alleged to have suffered from lung disease from exposure to chemicals at the International Bakers Services Plant. Among the chemicals identified in the action as having caused or contributed to cause lung injury to plaintiffs Spaulding and Kois were diacetyl and acetaldehyde.

12. In August 1996 Givaudan met with FEMA representatives John Hallagan, Daniel Thompson, and Richard Hall and disclosed to FEMA that one or more Givaudan employees had been diagnosed with bronchiolitis obliterans ; that one or more flavoring chemicals may cause bronchiolitis obliterans ; and that they had discovered a report by the National Institute for Occupational Safety and Health Administration concerning bronchiolitis obliterans at the International Bakers Plant.

13. As a result of the meeting with Givaudan, FEMA sponsored a April 1997 seminar called Respiratory Safety in the Flavor and Fragrance Workplace. The disease bronchiolitis obliterans was discussed at the seminar as well as its causes and necessary precautions to prevent it. The NIOSH study of the International Bakers plant was also discussed, and the NIOSH report was produced with the seminar materials to all attendees. FEMA did not advise seminar attendees of the lung disease at Givaudan.

14. Defendants Berje, Citrus, Givaudan, IFF, Polarome, and Symrise attended the seminar.

15. In approximately 2001, a study was published in the New England Journal of Medicine disclosing a causal association of bronchiolitis obliterans with exposure to butter flavors. This study was followed by additional scientific articles on the topic and by publications from the National Institute for Occupational Safety and Health on the subject of butter flavoring, diacetyl, and bronchiolitis obliterans.

16. As a result of these publications Defendant FEMA orchestrated a defense to these scientific studies. As a part of its defense, FEMA retained the confidential services of a medical doctor and arranged for the doctor to screen employees at flavoring manufacturing plants.

17. At the arrangement or suggestion by FEMA, FEMA's medical consultant screened employees of Flavorchem in 2004 and 2005.

18. FEMA's medical consultant found that Plaintiff suffered from a loss of lung capacity; finding in the Forced Expiratory Volume in First Second of Test (“FEVI”) a result of 30.6% of predicted. FEMA's consultant failed to advise Plaintiff that he had a severe lung injury caused by exposure to flavor chemicals.

19. Plaintiff relied upon the honesty and representations of the FEMA medical consultant and upon her direction as to what, if any, safety precautions should be taken at work.

20. Following the 2004 and 2005 examinations, Plaintiff continued to work at Flavorchem.

21. In July of 2006, FEMA's consultant diagnosed Plaintiff with bronchiolitis obliterans. Mr. Solis' bronchiolitis obliterans was caused by his exposure to flavoring products.

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25. Defendant FEMA is a Maryland non-profit corporation whose principal place of business is 11 East Chase Street, Baltimore, Maryland 21202.

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50. Defendant FEMA is and/or was, at all times relevant herein, a trade association for flavoring manufacturers which conspired with its members to fraudulently conceal the true facts regarding the health consequences of butter flavorings and diacetyl from the scientific and medical communities, the government and the public, including Plaintiff. Defendants Givaudan and IFF and its employees were at all relevant times members and/or officers of FEMA.

51. In 1986, Defendant Givaudan and two of its diacetyl supplier(s) (defendants Citrus and Polarome) were named as defendants in Spaulding v. AAPER, et al., Circuit Court of Marshall County, Indiana, Case No. CTC 86-117, filed April 15, 1986 and Kois v. Aceto Chemical Co., et al., Circuit Court of Marshall County, Indiana, Case No. CTC 86-200. The plaintiffs in both actions alleged to have suffered from lung disease from exposure to chemicals at the International Bakers Services Plant. Among the chemicals identified in the action as having caused or contributed to cause lung injury to plaintiffs Spaulding and Kois were diacetyl. Givaudan was represented by counsel in both lawsuits.

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69. In late summer or fall 1996, Givaudan employees including its president, general counsel and toxicologist and its occupational medicine consultant met on one or more occasions with representatives of defendant FEMA and disclosed to FEMA that one or more Givaudan employees had been diagnosed with bronchiolitis obliterans and that one or more flavoring chemicals may cause bronchiolitis obliterans. The Givaudan president who attended the meeting was also at that time a board member of FEMA. Givaudan did not disclose to FEMA the full extent of lung injury among its employees, that it had been investigating lung injury at its plants since 1993 or that it had refused requests from experts to investigate the cause of that lung disease. Givaudan told FEMA not to disclose to other FEMA members that Givaudan had experienced cases of bronchiolitis obliterans in its plant because of its fear that Givaudan's competitors would disclose this information to Givaudan's customers to take flavor ingredient sales from Givaudan.

70. Upon information and belief, Givaudan attended a FEMA board or committee meeting where occupational lung disease was discussed with other FEMA members.

71. As a result of the meeting with Givaudan, FEMA sponsored an April 1997 seminar called “Respiratory Safety in the Flavor and Fragrance Workplace” which was attended by employees of Givaudan. The disease bronchiolitis obliterans was discussed at the seminar as well as its causes and necessary precautions to prevent the disease. The NIOSH study of the International Bakers plant was also discussed and the NIOSH report produced with the seminar materials to all attendees.

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93. FEMA offered as a service to its members a research library concerning hazards of chemicals which included a “monograph” on diacetyl; a service, called Flavor and Fragrance Ingredient Data Sheet (FFIDS) that drafted suggested language for its members to use in Material Safety Data Sheets regarding hazards of specific chemicals including diacetyl; and scientific resources to determine the hazards of chemicals.

94. FEMA did not include in its diacetyl monograph any information it possessed concerning the causes of bronchiolitis obliterans at the Indiana Bakers Services Plant.

95. FEMA did not include in its FFIDS for diacetyl language that diacetyl could cause severe and permanent long injury.

96. FEMA, although aware that flavoring ingredients may cause lung injury and that its tests to determine hazards of flavoring ingredients did not test for inhalation hazards, chose not to test any flavor ingredients for inhalation hazards.

97. After FEMA became aware of the cases of bronchiolitis obliterans at the Givaudan plant, FEMA chose not to make changes in its diacetyl monograph or its diacetyl FFIDS and, in fact, chose not to conduct specific inhalation tests on any chemicals so that it could continue to state that the chemicals were safe.

98. Despite the fact that defendants Givaudan, IFF, and FEMA knew that the butter flavorings and diacetyl cause adverse health effects, including severe respiratory disease, they intentionally and maliciously chose to conceal these facts from the scientific and medical communities, the government and the public, including Plaintiff Gerardo Solis.

99. The information concealed by defendants Givaudan, IFF, and FEMA regarding the serious health risks of using butter flavorings and diacetyl was material.

100. Defendants Givaudan, IFF, and FEMA had a duty to disclose such information to Plaintiff because, inter alia,

a. Defendants possessed knowledge regarding the health effects of butter flavorings and diacetyl that was superior to Plaintiff's knowledge;

b. Defendants had a relationship of trust and/or confidence with Plaintiff;

c. Defendants had a relationship based on past experience with Plaintiff;

d. Defendants designed, sold, and marketed butter flavorings that they falsety claimed were safe for use by workers like Plaintiff, which created a false sense of security; and

e. other attendant circumstances.

101. Plaintiff reasonably relied upon the fact that Defendants should fulfill their duties and did believe that Defendants would fulfill their duties as described herein.

102. Plaintiff reasonably and detrimentally relied on Defendants' fraudulent concealment by not acting to protect himself from the dangers associated with Defendants' butter flavoring and flavoring chemicals and was reasonably justified in not acting and could not have discovered and/or was prevented from discovering the truth because Defendants created a false sense of security with their concealment and silence.

103. Defendants profited from their fraud by continuing and increasing the sale of butter flavorings and diacetyl which they knew were hazardous to persons deliberately kept ignorant of material facts concerning the true hazards of diacetyl and/or butter flavorings.

104. As a direct and proximate result of Defendants' concealment, Plaintiff Gerardo Solis developed bronchiolitis obliterans, which caused, inter alia, severe, permanent, and progressive damage to the lungs, severe damage to the respiratory system, and/or impairment of the ability to function. Plaintiff has suffered and continues to suffer physical pain, loss of consortium, mental and emotional distress, and/or loss of sleep and natural rest. In addition, Plaintiff has suffered and will suffer loss of wages and/or earning capacity, and have expended and will expend money for medical treatment, medication, medical monitoring and/or medical devices.

And, as set forth in the Civil Conspiracy Count (Count V):

105. Plaintiff incorporates by reference his allegations set forth in Paragraphs I through 104 as if fully set forth herein.

106. Defendants Givaudan, IFF, and FEMA, as members of the flavoring industry and experts in the design, manufacture, marketing, distribution and sale of butter flavorings, knew, or should have known, at all times relevant to the events described in this Complaint that the butter flavorings and/or their constituents were hazardous to human health, as more fully described above. Despite this knowledge and due to Defendants' strong pecuniary motives in continuing and increasing the sale of butter flavorings, Defendants developed a plan to fraudulently conceal their knowledge of the true health effects of the butter flavorings and/or their constituents from the scientific and medical communities, the government and the public, including Plaintiff, as more fully described below.

107. Defendants' continuing collaboration with others in the flavoring industry to conceal and misrepresent the true facts regarding the health consequences of the butter flavorings and/or their constituents constitute overt actions to defraud users and consumers of the butter flavorings, including Plaintiff. Defendants' overt actions include, but are not limited to, the following:

a. The formation and continuation of an industry trade association and trade association management group, FEMA, which conspired with the other Defendants to conceal material information regarding the hazards of butter flavorings and/or their constituents from the public. Specifically, FEMA received and/or developed information that butter flavorings and/or their constituents cause human disease, including bronchiolitis obliterans, from the Defendants by at least 1996 and agreed not to reveal this information to the scientific and medical communities, the government and the public, including Plaintiff.

b. By at least March of 1997, FEMA met frequently and continually with the other Defendants and discussed the hazards of butter flavorings and/or their constituents, including several cases of bronchiolitis obliterans in the flavoring industry. All Defendants agreed to conceal their knowledge of this information from the scientific and medical communities, the government and the public, including Plaintiff.

c. By at least 1996 the Defendants hired paid medical and scientific consultants, to investigate the hazards of flavoring workers' exposure to butter flavorings and/or their constituents. Defendants Givaudan, IFF and FEMA entered into agreements with these consultants to conceal the information acquired by the consultants from the scientific and medical communities, the government and the public, including Plaintiff.

d. By at least 2002, the Defendants began issuing public statements that butter flavors are safe, despite their extensive knowledge of the hazards of butter flavorings and/or their constituents.

108. As a direct and proximate result of the civil conspiracy of the Defendants Givaudan, IFF, and FEMA, Plaintiff has suffered damages as more fully set forth above.

(Plaintiff's 1st Am. Complaint, throughout.)

With these allegations of FEMA's knowledge and concealment fresh in the Court's mind, Plaintiff now addresses the specific arguments FEMA raises in support of its motion.

II. ILLINOIS CONCEALMENT LAW and DISMISSAL STANDARDS

For purposes of FEMA's motion to dismiss, this Court must take all the facts found in the complaint as true and draw all reasonable inferences in favor of Plaintiff. See Heider v. Leewards Creative Crafts, Inc. , 613 N.E.2d 805, 810 (Ill. Ct. App. 1993). Plaintiffs complaint need not show a certainty of recovery, only a possibility of recovery, and it should not be dismissed unless it appears that the pleader in no event would be permitted to recover. Id.

Under Illinois concealment law, the traditional fraud analysis is modified, and, in order to prove the concealment amounted to a fraudulent concealment, a plaintiff must prove (1) the concealment of a material fact, (2) the concealment was intended to induce a false belief, under circumstances creating a duty to speak, (3) the innocent party could not have discovered the truth through a reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and relied upon the silence as a representation that the fact did not exist, (4) the concealed information was such that the injured party would have acted differently had it been aware of it, and (5) the reliance by the person from whom the fact was concealed led to his injury. See, e.g., Williams v. Chicago Osteopathic Health Systems , 654 N.E.2d 613, 621-622 (Ill.Ct.App. 1995).

The requirement of specificity in pleading fraud does not exist to de facto eliminate fraudulent concealment claims from Illinois jurisprudence. Deception and secrets are elemental to any fraud. This is even more true when that fraud is perpetrated not through overt misrepresentations, but through concealing information-by hiding it. The policies behind requiring heightened specificity in the fraud arena are well-founded. FEMA should be able to confront its accuser and answer the claims. Just as strong, however, are the public policies behind permitting well-pleaded claims to proceed to discovery, and through the power of the court, literally discover the truth and eradicate the deception.

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