Kuiper v. International Flavors & Fragrances, Inc.

240 F.R.D. 438, 2007 U.S. Dist. LEXIS 7116, 2007 WL 315347
CourtDistrict Court, N.D. Iowa
DecidedJanuary 31, 2007
DocketNo. C06-4009-MWB
StatusPublished

This text of 240 F.R.D. 438 (Kuiper v. International Flavors & Fragrances, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuiper v. International Flavors & Fragrances, Inc., 240 F.R.D. 438, 2007 U.S. Dist. LEXIS 7116, 2007 WL 315347 (N.D. Iowa 2007).

Opinion

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS TO DISMISS COUNTS II AND III

BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND .....................................440

A. Procedural Background................................................440

B. Factual Background...................................................440

II. LEGAL ANALYSIS........................................................445

A. Rule 12(b)(6) Standards................................................445

B. Pleading Fraud With Particularity.....................................446

1. Pleading fraud under Rule 9(b) .....................................447

2. Application of the Rule 9(b) pleading standards ......................448

3. Leave to amend the complaint......................................448

III. CONCLUSION..................... .....................................449

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

On January 30, 2006, plaintiffs Ronald Kuiper and Conley Kuiper (“the Kuipers”) filed their Complaint against defendants International Flavors & Fragrances, Inc. (“IFF”), Givaudan Flavors Corp. (“Givaudan”), Flavors of North America, Inc. (“FONA”), Sensient Flavors, Inc. (“Sensient”), the Flavor and Extract Manufacturers Association of the United States (“FEMA”), and the Roberts Group, L.L.C. (“TRG”) alleging four causes of action. The four causes of action asserted are for negligence (Count I), fraudulent concealment (Count II), civil conspiracy (Count III), and a combined claim for loss of consortium and medical expenses (Count IV). The Complaint alleges that this court has subject matter jurisdiction by virtue of diversity of citizenship of the parties, 28 U.S.C. § 1332.

Defendants IFF, Givaudan, FONA, and Sensient have each filed motions to dismiss Counts II and III, the fraudulent concealment and civil conspiracy claims found in the Complaint (Doc. Nos. 43, 45, 49, and 52). Because the grounds raised in each defendant’s respective motion to dismiss are identical, the court will generally refer to all four motions to dismiss as defendants’ motions. Specifically, defendants assert that Count II, the Kuipers’ fraudulent concealment claim, should be dismissed for failure to plead fraud with particularity, and that Count III, the Kuipers’ civil conspiracy claim, should be dismissed because it is based entirely on the fraudulent concealment claim. The Kuipers filed a timely combined resistance to defendants’ motions. Defendants then filed reply briefs in support of their respective motions.

B. Factual Background

On a motion to dismiss, the court must assume all facts alleged in the Kuipers’ complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45^6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Therefore, the following factual background, related to Counts II and III, is drawn from the Kuipers’ complaint in such a manner.

Plaintiffs Ronald Kuiper and Conley Kuiper are husband and wife residing in Sioux City, Iowa. Ronald Kuiper was employed by the American Popcorn Company in Sioux City, Iowa. Defendant IFF is a New York corporation with its principal place of business in New York, New York. Givauden is a Delaware corporation with its principal place of business in Cincinnati, Ohio. FONA is an Illinois corporation with its principal place of business in Carol Steam, Illinois. Sensient is a Wisconsin corporation with its principal place of business in Indianapolis, Indiana. Defendants IFF, Givauden, FONA, and Sensient each design, manufacture, distribute [441]*441and sell butter flavorings marketed to entities, including the American Popcorn Company.

The butter flavorings sold by defendants IFF, Givaudan, FONA, and Sensient contain diacetyl and/or other volatile organic compounds that can cause human disease and injury. In the course of his employment at the American Popcorn Company, Ronald Kuiper was exposed to butter flavorings designed, manufactured, distributed and sold by defendants IFF, Givaudan, FONA, and Sensient. The Kuipers allege that as a result of Ronald Kuiper’s exposure he has suffered severe and permanent injury to his person including, bronchiolitis obliterans, severe and progressive damage to the respiratory system, and extreme shortness of breath. In addition, because of his exposure, Ronald Kuiper’s life expectancy has been significantly reduced.

In their fraudulent concealment claim, the Kuipers allege the following with respect to defendant Givaudan:

27. Defendant Givaudan knew, or should have known, that butter flavorings and/or their constituents cause adverse health effects by at least 1991, including, but not limited to, the following:
a. Damage to human mucous membranes, and;
b. Respiratory disease.
28. Defendant Givaudan knew or should have known certain information regarding the health hazards of butter flavorings and/or their constituents including, but not limited to, the following:
a. By at least 1991, Defendant Givaudan knew that diacetyl was a health hazard when inhaled;
b. By at least 1991, Defendant Givaudan knew that the level of diacetyl in areas where butter flavorings are used could and should be monitored through air sampling;
c. By at least 1991, Defendant Givaudan knew that diacetyl is a hazard to human mucous membranes;
d. By at least 1992, Defendant Givaudan knew of at least three occupational exposures where persons working with Defendant Givaudan’s butter flavorings were diagnosed with bronchiolitis obliterans and at least one exposure resulted in death;
e. By at least 1993, Defendant Givaudan knew that their butter flavoring workers were experiencing “breathing problems”;
f. By at least 1993, Defendant Givaudan knew that even a short exposure to its butter flavorings could produce severe respiratory effects;
g. By at least 1993, Defendant Givaudan knew that persons working around butter flavorings must wear full-face respirators;
h. By at least 1993, Defendant Givaudan knew that diacetyl is a severe respiratory hazard, causing, inter alia: respiratory tract injury; focal hyperemia of the lungs; atelectasis; bloody edema of the lungs; bronchial edema, and, emphysema;
i. By at least 1993, Defendant Givaudan knew that diacetyl causes severe lung disease, including emphysema and death;
j. By at least 1993, Defendant Givaudan knew the LC50 for diacetyl;
k.

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Bluebook (online)
240 F.R.D. 438, 2007 U.S. Dist. LEXIS 7116, 2007 WL 315347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuiper-v-international-flavors-fragrances-inc-iand-2007.