31 Defenses to Products Liability

Various defenses limit the scope of potential liability for injuries caused in connection with defective products. The most common doctrinal defenses are probably misuse and modification. In addition to having to prove some form of defect (or alternatively, breach of either warranty or due care), plaintiffs must often be able to show that they did not misuse a product. If a plaintiff suffers injuries when trying to use a car as a boat, for instance, the fault lies with the plaintiff, not the defendant for failing to anticipate such a use. However, some uses are so common that they have become foreseeable even if they are not the intended use for the product. For instance, a chair is meant to be sat on, not climbed. Yet it has long been treated as foreseeable that a chair will be used as a stepstool in lieu of a ladder, for reaching higher-up items. It would not be a misuse for someone to use a chair in such a way in their home. There may be a duty to anticipate foreseeable misuses, in other words. Plaintiffs may also need to be able to show the product has not been modified since leaving the defendant’s control. This may require proof that the plaintiff has not altered the product or that there was no intervening third-party force that could constitute a superseding cause and sever the chain of causation.

In some instances, courts will use duty to limit defendants’ liability, as when the risks associated with a product are open and obvious. Consider the case of aboveground pools, which are swimming pools that rise above ground level rather than being dug into a corresponding hole in the ground. In the 1980s, the pool construction industry found itself targeted in multiple lawsuits over spinal injuries suffered by people who dived headfirst into these structures. Unlike most other bodies of water, including in-ground swimming pools, the depth—or more accurately, the shallowness—of an aboveground pool is plainly discernible to tort law’s “reasonable person.” The general rule is that there is no duty to warn of open and obvious dangers, so as long as the defendant can prove that the danger was indeed open and obvious, duty analysis may eliminate their liability.

Is what is “open and obvious” the same for all people? If warnings express a risk well enough that many or most people understand and can choose whether to avoid it, is that good enough or should a warning make risks patently clear to all foreseeable users?

Recent Controversy. In 2021, a young woman, Tessica Brown, apparently ran out of her regular hair product, “Got2Be Glued” and used Gorilla Glue adhesive spray to set her hair instead. When she was unable to remove it for a month, she posted a video online seeking help. The video went viral; it was viewed over 4.7 million times (as of 6/29/2021). Brown did receive advice and some offers of help though she also was subject to some criticism for using the glue in this way. A report that she was contemplating litigation against the manufacturer of Gorilla Glue turned out to false, but at least two personal injury attorneys believed Brown had a claim that could survive the pleading stage had she decided to sue. https://www.insider.com/tessica-brown-gorilla-glue-hair-lawyers-weigh-in-2021-2

Presumably, Gorilla Glue’s purported liability would be based on a failure to warn since the company “says do not use on eyes, skin or clothing … with no mention of hair.” What do you think? Is it “open and obvious” that glue should not be used on hair? Are you familiar with Got2Be Glued and its uses on hair? Would it matter to you if a subset of the population—mainly women of color—used a product that included glue-like characteristics? Consider the following excerpt of an article about using that product:

“Got2b glued is a “water-resistant” hair styling/spiking gel from the brand Schwarzkopf. Schwarzkopf is a professional brand of hair care products. The Got2b glued gel is the newest trend of securing wig and frontal units. … Got2b glued comes in a white (regular) or clear (ultra hold) form. Both products boast water-resistant claims of a screaming hold. Still not following me? That’s okay. What these users are doing, including myself, is applying a thin layer of the gel to whatever area they want their lace wig to be applied to. Once the gel has dried to a tacky consistency, the lace wig is then applied for a strong glue-like hold! Awesome, right? Well, maybe not so awesome for some. I have come across reports of lack of hold, difficulty removing, and hair loss as a result of this product.” https://thecrissymack.com/2017/04/13/7-things-they-didnt-tell-you-about-got2b-glued-for-your-lace-wig/

Does Brown’s use of Gorilla Glue seem different in light of the existence of this other product and this trend in hair care? Does Gorilla Glue have a responsibility to anticipate foreseeable misuses even with respect to trends? Or should a risk like extra-strong glue’s remaining adhered to hair be considered “open and obvious”? How might tort law’s purposes guide your considerations?

Certain categories of actors have been immunized from liability in connection with injuries caused by products liability. Pharmaceutical and medical device manufacturers are protected by the learned intermediary doctrine, which holds that the “learned intermediary” who interacts with patients or consumers of the product is the one responsible for warning them of the products’ risks. The manufacturers owe a duty to warn the learned intermediary appropriately, but from that point, their liability is extinguished. A general exception for oral contraceptives has been recognized in light of the fact that consumers may not consult as meaningfully with a doctor in that medical context as in almost every other. The doctrine has been adopted in most U.S. jurisdictions, though it is subject to multiple critiques. Pharmaceutical companies often market directly to consumers, which would seem to eliminate the role of a learned intermediary. Physicians may enter consulting arrangements or otherwise accept compensation from pharmaceutical companies, which has also subjected the doctrine to criticisms of potential conflicts of interest. Notwithstanding these critiques, efforts among representatives of the plaintiffs’ bar to create “direct to consumer” or “physician compensation” exceptions have failed to gain much traction. See e.g. DiBartolo v. Abbott Labs., 2012 WL 6681704 (S.D.N.Y. Dec.21, 2012); Calisi v. Abbott Labs., 2013 WL 5462274 (D. Mass. Feb. 25, 2013).

Victims of injury are typically immunized from suit by first responders, fire fighters and professional rescuers (see Module 3, discussion of the “Firefighter’s rule” in connection with Clinkscales v. Nelson Securities, (697 N.W.2d 836) (Sup. Ct. Iowa) (2005). However, this limitation does not apply to claims by professional rescuers against manufacturers or sellers of equipment or uniforms, so this is an area in which an ordinarily available defense becomes unavailable in the context of products liability.

Finally, as with other torts claims, product liability actions may be subject to statutes of limitation and repose (see Module 4). The next case provides an opportunity to synthesize the various theories of product liability in a case concerning a toxin that caused respiratory disease (“popcorn lung”) due to its widespread use in microwave popcorn.

Daughetee v. Chr. Hansen Inc., U.S. District Court Iowa, Western Division (2013)
(960 F. Supp.2d 849)

This case brings to mind the idiom, “Too much of a good thing can be bad for you.” In this diversity action under Iowa products liability law, plaintiffs allege that Deborah Daughetee developed “popcorn lung” by consuming multiple bags of microwave popcorn daily for several years. Presently, I am asked to determine whether the plaintiffs are entitled to present to a jury both their failure to warn and design defects. *853 [***]

Plaintiffs Deborah Daughetee and Steven Daughetee are married and residing in Albuquerque, New Mexico. [***] Symrise, Firmenich, and Hansen (collectively “defendants”) all produced butter flavorings containing diacetyl. [***] Defendants sold their butter flavorings to microwave popcorn manufacturers, including ConAgra, General Mills, and American Popcorn. General Mills and ConAgra have been aware, since the 1990s’s, that defendants’ butter flavorings contained diacetyl. ConAgra is the largest manufacturer of microwave popcorn in the United States. It operates five microwave popcorn factories and has been in the microwave popcorn business since the 1980’s. Diacetyl is a basic food chemical present in all cheeses and butters. It is an ingredient used to manufacture butter flavorings. Diacetyl is one of a number of potentially volatile organic compounds present in butter flavorings. Butter flavorings are intended to provide “buttery” taste and smell. Upon opening a microwave popcorn bag with butter flavoring, diacetyl vapors are released.

Between 1989 and 2004, Deborah regularly ate microwave popcorn. From 1989 to 2004, she prepared and consumed approximately one or two bags of microwave popcorn each day. Deborah prepared a “Product Identification” Sheet (“Product ID Sheet”) in which she identified the brands of microwave popcorn she has eaten since 1989 [including] various brands manufactured by General Mills, ConAgra, and American Popcorn. [***]

After removing a bag of butter flavored microwave popcorn from the microwave, Deborah would open the bag and draw the buttery smell into her nose and lungs. She “liked the smell of opening a bag near my face,” and liked the taste of butter flavored, microwave popcorn. Deborah first ate microwave popcorn in 1989 while working as a writer for the television show “Tour of Duty.” She prepared and ate two bags of microwave popcorn while she worked on Tour of Duty. Typically, she would eat one bag at the office and then take another bag home with her.

[The court reviews the facts in granular detail: plaintiff was able to link certain kinds of popcorn she ate while working on certain shows, during certain time frames and purchased from certain stores (for example, Costco, where particular brands could be identified).

Deborah stopped eating popcorn in 2004 because she grew tired of it.

[The court conducts an extensive survey of the industry’s actions and knowledge, including its industry-wide self-regulation mechanisms and safety protocols, the practices and state of knowledge of the various defendants with respect to the risks associated with diacetyl, and the actions of various entities that discovered that plant workers were developing lung issues and did not take responsible actions to curb the risk or inform relevant parties and partners.] [***]

[D]efendants make three arguments in support of their claim that they had no duty to warn Deborah about the harms allegedly associated with exposure to their butter flavorings. First, defendants contend that they did not owe Deborah a duty to warn because, during the time that Deborah ate microwave popcorn containing their flavorings, it was not reasonably foreseeable that their flavorings posed a risk to consumers. Second, defendants assert that, because General Mills and ConAgra were sophisticated users of flavoring products, General Mills and ConAgra were in a better position to warn consumers about their products. Finally, defendants argue that they were bulk suppliers of flavorings ingredients and were not in a position to warn consumers of General Mills and ConAgra’s microwave popcorn about the dangers associated with the finished popcorn products. [***]

Under Iowa law, “[a] claim alleging a manufacturer failed to warn of the dangers involved in using a product is properly based on a theory of negligence, not strict liability.” [***] *865 Defendants, as manufacturers, are held to have the knowledge of an expert and therefore should have known of the hazards inherent in their products. “The relevant inquiry therefore is whether the reasonable manufacturer knew or should have known of the danger, in light of the generally recognized and prevailing best scientific knowledge yet failed to provide adequate warning to users or consumers.” [c] Thus, reasonable foreseeability of danger to users of a product triggers the duty to warn. A manufacturer has no duty to warn when it did not or should not have known of the danger. [c]

Defendants argue that there was no scientific or medical knowledge at the time Deborah was consuming microwave popcorn with butter flavorings which would have given them a reasonable basis to believe their product could cause injuries to consumers. The Daughetees counter that defendants had knowledge of the hazards associated with their butter flavorings, at least at some level, or that knowledge was ascertainable prior to and during Deborah’s exposure. [***]

[Editor’s summary: The court then details information available through the flavor industry’s trade organization, FEMA, including a warning in 1985 that diacetyl was “harmful” and high concentrations were “capable of producing systemic toxicity.” From 1991-1997, the defendants were placed on varying degrees of notice. In 1991, a consultant was hired who informed Firmenich of the dangers of potent inhalation hazards of numerous chemicals, including diacetyl, and advised the company to specially label the chemical, provide additional warnings, and take additional precautions in its use and storage. In 1992, Givaudan discovered one of its employees had been diagnosed with bronchiolitis obliterans and that one of the employees may have died as a result. In 1996, Givaudan informed FEMA of the bronchiolitis obliterans diagnosis. In 1997, FEMA held a special conference to discuss respiratory safety and discussed the suspected links between diacetyl exposure and bronchiolitis obliterans. In 2001, the Wall Street Journal published an article about the prevalence of lung disease among employees at an artificial butter flavoring manufacturing plant. Some changes in ventilation may have been made to minimize workers’ exposure to diacetyl and other respiratory hazards. On August 2, 2002, [the National Institute for Occupational Safety and Health (“NIOSH”)] conducted testing of the plant in question and issued an update stating that they believed that “butter flavoring in the air caused lung disease in workers at this plant.”

The NIOSH update made the following observation concerning quality control exposures: “Many quality control workers had abnormal breathing tests and have continued risk even after the ventilation changes in the plant. Based on our survey results, we believe that they may receive many peak exposures to flavoring vapors when microwaving the popcorn bags, opening them, and measuring the amount of hot popcorn. When the popcorn/flavorings temperature increased, the vapor increased, although the high exposures only lasted for seconds or a few minutes. We are concerned about these short peak exposures in the quality control room and have provided recommendations for control.” By 2003, NIOSH had broadened the scope of its investigations to include several of ConAgra’s microwave popcorn plants. A medical survey of ConAgra’s workers identified evidence of the same type of lung disease. By the end of 2003, a number of ConAgra workers had filed lawsuits alleging that they suffered lung disease as a result of exposure to butter flavorings.]

The plain language of § 2(c) focuses on the concept of “reasonableness” for judging the adequacy of warnings, a malleable concept that is intertwined with the facts and circumstances of each case. “Whether the warning actually given was reasonable in the circumstances is to be decided by the trier of fact.” RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. i. [***] No easy guideline exists for courts to adopt in assessing the adequacy of product warnings and instructions. In making their assessments, courts must focus on various factors, such as content and comprehensibility, intensity of expression, and the characteristics of expected user groups. Id.

I find that the information and circumstances detailed above, considered in the light most favorable to the Daughetees, generates genuine issues of material fact as to whether defendants knew or had reason to know that their butter flavorings posed a potential risk, at some level, to consumers, thus triggering the necessity for a warning. Therefore, this portion of defendants’ motion for summary judgment on the failure-to-warn claims is denied.

b. Intermediary user defense

Defendants also move for summary judgment on the Daughetees’ failure to warn claims because General Mills and ConAgra were “sophisticated” intermediary users of their butter flavoring products and, thus, defendants were entitled to rely on General Mills and ConAgra to provide appropriate warnings to consumers. The Daughetees argue that defendants cannot avail themselves of the intermediary user defense because they failed to fully communicate the possible hazards of their butter flavorings to General Mills and ConAgra and therefore could not reasonably rely on General Mills and ConAgra to provide appropriate warnings.

*870 In Nationwide Agribusiness Ins. Co. v. SMA Elevator Constr., Inc., 816 F.Supp.2d 631, 653-54 (N.D. Iowa 2011), I specifically found that:

“intermediary” defense is still viable under Iowa law. … Restatement (Third) § 2(c) and comment i recognize a defense to a warning defect claim based on the duty of an intermediary—and not even necessarily a “learned” or “sophisticated” intermediary—to warn the end user. Section 2 expressly considers whether “the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution.”

[fn] Comment i distills down to three non-exclusive factors the considerations set out at length in Comment n for determining when a warning to an intermediary is sufficient.

*871 I conclude, taking the facts in the light most favorable to the Daughetees, the non-moving party, see Torgerson, 643 F.3d at 1042–43, that a reasonable juror could reject application of defendants’ ‘intermediary” defense. Significantly, a reasonable juror could conclude that defendants’ butter flavorings containing diacetyl were dangerous products if inhaled. Moreover, a reasonable juror could conclude that the likelihood that the intermediaries, General Mills and ConAgra, would convey the information to the ultimate user was greatly reduced or eliminated if defendants withheld information concerning the dangers posed by their butter flavorings from General Mills and ConAgra. General Mills and ConAgra could not be relied on as reasonable conduits for the necessary information concerning defendants’ butter flavorings if defendants were not first forthcoming to them about the respiratory dangers posed by their products. Finally, a reasonable juror could conclude that placing an adequate warning on microwave popcorn products containing defendants butter flavorings would not be burdensome. There is no material in the summary judgment record that either General Mills or ConAgra were likely to refuse placement of a warning on their microwave popcorn product.

Therefore, this portion of defendants’ motion for summary judgment on the failure-to-warn claims is also denied. [***]

2. Proximate cause

Defendants also seek summary judgment on the Daughetees’ failure to warn claims on the grounds that the Daughetees cannot establish that defendants’ failure to warn Deborah was the proximate cause of her lung condition. …

a. Proximate cause requirement

[***]“ In products liability, the plaintiff must prove his or her injuries were proximately caused by an item manufactured or supplied by the defendant.” Spaur v. Owens–Corning Fiberglas Corp., 510 N.W.2d 854, 858 (Iowa 1994); [***]. It is well-settled that questions of “proximate cause are ordinarily for the jury,” and “only in exceptional cases should they be decided as a matter of law.” Thompson v. Kaczinski, 774 N.W.2d 829, 832 (Iowa 2009) (quoting Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005)) [***]

This is not an “exceptional” case. “In the context of a failure to warn claim, proximate cause can be established by showing a warning would have altered the plaintiff’s conduct so as to avoid injury.” … There is no material in the summary judgment record that *873 Deborah would have ignored a warning to avoid breathing in the vapors from a freshly popped bag of microwave popcorn. A reasonable juror could conclude that a person would not risk permanent, severe lung damage in order to enjoy breathing in the buttery smelling vapors from microwave popcorn if warned about possible serious consequences. There is also no material in the summary judgment record that either General Mills or ConAgra were likely to refuse placement of a reasonable warning on their microwave popcorn product. [***] Given these circumstances, I conclude that questions of proximate cause, here, are for the jury to determine and deny this portion of defendants’ motion for summary judgment. …

C. Breach Of Implied Warranty Claims

Defendants also seek summary judgment on the Daughetees’ breach of implied warranty claims.

1. Are implied warranty claims redundant?

Defendants argue that the Daughetees’ breach of implied warranty claims in Count II are redundant with their negligence claims found in Count I. Defendants argue that to submit both claims to the jury will generate confusion and may well lead to inconsistent verdicts. The Daughetees respond that, under Iowa law, both claims may be asserted in the same case. [***] The Iowa Supreme Court … has clearly stated that “personal injury plaintiffs are permitted to seek recovery under tort and warranty theories that in essence allege the same wrongful acts.” Wright, 652 N.W.2d at 181; see Mercer, 616 N.W.2d at 621 (holding no error in submitting personal injury claims under both strict liability and breach of warranty theories); see also Lovick, 588 N.W.2d at 698 (stating that although claims for negligence, strict liability, and breach of warranty are separate and distinct theories of liability under products liability law, the same facts often give rise to those three claims). Thus, the Daughetees’ negligence claims and implied warranty claims are not redundant. I also note that the risks of jury confusion can be alleviated by instructions to the jury during trial and the manner in which the Daughetees’ claims are submitted to the jury for deliberation. Accordingly, I deny this portion of defendants’ motion for summary judgment.

2. Proof of a product defect

Defendants also argue that the Daughetees have offered no proof of a product defect, and, therefore, their breach of implied warranty claims fail as a matter of law. The Daughetees respond that they have adduced sufficient evidence to prevail on a breach of implied warranty claim based on either a failure to warn or a design defect.

a. Defective because of inadequate warnings

Defendants assert that the Daughetees’ implied warranty claims based on inadequate warnings fail because they had no duty to warn Deborah about the dangers associated with their butter flavorings. The Daughetees dispute defendants’ assertion. Both parties reassert all of their arguments addressed above concerning the Daughetees’ failure to warn claims. For the reasons stated at length above, I conclude genuine issues of material fact have been generated on whether defendants knew or had reason to know that their butter flavorings posed a potential risk, at some level, to consumers, thus triggering the necessity for a warning. Therefore, this portion of defendants’ motion for summary judgment is denied.

*876 b. Defective design

The Iowa Supreme Court has explained that, “[t]o succeed under [Restatement (Third) ] section 2(b), a plaintiff must ordinarily show the existence of a reasonable alternative design, Wright, 652 N.W.2d at 169, and that this design would, at a reasonable cost, have reduced the foreseeability of harm posed by the product[,] Restatement § 2 cmt. d.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543 (Iowa 2008); accord Scott, 774 N.W.2d at 506 (“The Third Products Restatement section 2, as adopted in Wright, requires plaintiffs in design defect cases to demonstrate the existence of a reasonable alternative design.”). Defendants assert that the Daughetees’ implied warranty claims based on defective designs fail because they have offered no evidence of a reasonable alternative design. The Daughetees contend that defendants’ assertion is untrue and that they have put forward evidence that diacetyl-free butter flavorings was a viable alternative design. A review of those materials belies that claim. None of the materials cited by the Daughetees supports the proposition that defendants have or could have produced diacetyl-free butter flavorings. Thus, I find that the materials submitted by the Daughetees are insufficient for a jury to conclude that a reasonable alternative design was available to butter flavorings with diacetyl. Accordingly, this portion of defendants’ motion for summary judgment is granted. [***]

D. Symrise Butter Flavor in ConAgra Microwave Popcorn

Defendant Symrise also seeks summary judgment on the Daughetees’ claims as they relate to Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn. Symrise asserts that the Daughetees cannot prove that her lung disease was caused by Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn. Symrise argues that Dragoco only provided butter flavorings containing diaceytl to ConAgra for a short time in the early 1990’s and that the amount of Dragoco’s butter flavorings used in ConAgra’s ACT II Butter Lover’s microwave popcorn is unknown. As a result, Symrise argues that Deborah’s exposure levels to it are *877 speculative and cannot support a finding of causation. Symrise further argues that any claim based on Deborah’s exposure to Dragoco butter flavorings contained in ConAgra ACT II Butter Lover’s microwave popcorn is barred under Iowa’s statute of repose, Iowa Code § 614.1.

The Daughetees respond that Dragoco’s butter flavorings are not the only butter flavorings containing diacetyl that Symrise supplied and that Deborah’s cumulative exposure to Symrise’s products is sufficient to generate a genuine issue of material fact with respect to causation. The Daughetees also argue that Iowa’s statute of repose does not bar their claims because of Iowa’s discovery rule. [c]

Symrise’s statute of repose argument requires me to explain Iowa’s statute of repose, Iowa Code § 614.1, and its discovery rule exception found in Iowa Code § 614.1(2A)(b). See Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 992 (8th Cir.2007) [***] Iowa’s statute of repose contains the following relevant provisions:

Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

….

2A. With respect to products.

a. Those founded on the death of a person or injuries to the person or property brought against the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of a product based upon an alleged defect in the design, inspection, testing, manufacturing, formulation, marketing, packaging, warning, labeling of the product, or any other alleged defect or failure of whatever nature or kind, based on the theories of strict liability in tort, negligence, or breach of an implied warranty shall not be commenced more than fifteen years after the product was first purchased, leased, bailed, or installed for use or consumption unless expressly warranted for a longer period of time by the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product. This subsection shall not affect the time during which a person found liable may seek and obtain contribution or indemnity from another person whose actual fault caused a product to be defective. This subsection shall not apply if the manufacturer, assembler, designer, supplier of specifications, seller, lessor, or distributor of the product intentionally misrepresents facts about the product or fraudulently conceals information about the product and that conduct was a substantial cause of the claimant’s harm.

b. (1) The fifteen-year limitation in paragraph “a” shall not apply to the time period in which to discover a disease that is latent and caused by exposure to a harmful material, in which event the cause of action shall be deemed to have accrued when the disease and such disease’s cause have been made known to the person or at the point the person should have been aware of the disease and such disease’s cause. This subsection shall not apply to cases governed by subsection 11 of this section.

(2) As used in this paragraph, “harmful material” means silicone gel breast implants, which were implanted prior to July 12, 1992; and chemical substances commonly known as asbestos, dioxins, tobacco, or polychlorinated biphenyls, *878 whether alone or as part of any product; or any substance which is determined to present an unreasonable risk of injury to health or the environment by the United States environmental protection agency pursuant to the federal Toxic Substance Control Act, 15 U.S.C. § 2601 et seq., or by this state, if that risk is regulated by the United States environmental protection agency or this state. IOWA CODE § 614.1(2A).

A statute of repose runs from the time the product is first purchased and not from the time harm is first suffered. In other words, “a statute of limitations runs from the accrual of a cause of action, whereas a statute of repose runs from a different, earlier date.” Albrecht v. General Motors Corp., 648 N.W.2d 87, 90 (Iowa 2002). Thus, Iowa Code § 614.1(2A) is “clearly [a] statute[] of repose.” Id. at 92.

The Daughetees do not dispute that their claims fall within the ambit of this statute of repose. Rather, they argue that their claims are allowed by an exception provided for in the statute. Specifically, the exception in § 614.1(2A)(b)(1) for the discovery of latent disease caused by exposure to a “harmful material.” However, the term harmful material is specifically defined as: (1) “silicone gel breast implants, which were implanted prior to July 12, 1992;” (2) “chemical substances commonly known as asbestos, dioxins, tobacco, or polychlorinated biphenyls, whether alone or as part of any product;” or (3) “any substance which is determined to present an unreasonable risk of injury to health or the environment by the United States environmental protection agency pursuant to the federal Toxic Substance Control Act, 15 U.S.C. § 2601 et seq., or by this state, if that risk is regulated by the United States environmental protection agency or this state.” IOWA CODE § 614.1(2A)(b)(2).

The harmful material at issue here is diacetyl. In order for diacetyl to fall within the third category of harmful materials, it must have been determined by either the United States EPA, pursuant to the federal Toxic Substance Control Act, 15 U.S.C. § 2601, or Iowa, to “present an unreasonable risk of injury to health or the environment” and that risk must be regulated by the United States EPA or Iowa. Diacetyl is not classified as harmful material by either the United States EPA or Iowa. To the contrary, it is listed as a food ingredient that is generally recognized as safe for human consumption. See 21 C.F.R. § 184.1278. Accordingly, no statutory exception applies and the Daughetees’ claims are subject to Iowa’s fifteen year statute of repose. Deborah first consumed or purchased ConAgra ACT II Butter Lover’s microwave popcorn containing Dragoco butter flavorings with diaceytl in 1992. The Daughetees’ filed their initial complaint on December 8, 2009, more than fifteen years after Deborah first purchased ConAgra ACT II Butter Lover’s microwave popcorn containing Dragoco butter flavorings with diaceytl. Thus, the Daughetees’ claims as to ConAgra ACT II Butter Lover’s microwave popcorn containing Dragoco butter flavorings with diaceytl are barred under Iowa’s statute of repose.

Therefore, Symrise’s Motion For Summary Judgment As To Plaintiff’s Alleged Exposure To Symrise Butter Flavor In ConAgra Microwave Popcorn is granted.

Note 1. Why was the theory of design defect rejected? Not that you will ever eat microwave popcorn again most likely (#bronchiolitisobliterans), but do you agree with the court’s resolution of this issue? What more would you need to know?

Note 2. In the context of this fact pattern, practice identifying for yourself the different ways that a plaintiff can recover in products liability law (express warranty, implied warranty, and the three kinds of action rooted in defects). You can see that the court may blend them to some extent, but it is helpful to try to keep the theories distinct. Can you see some of the reasons why? What facts would you need to change to bring this case within the scope of the other products liability actions?

Note 3. The case illustrates how a statute of repose may limit the plaintiff’s ability to recover. What do you think, normatively, of the role the statute plays in Daughetee? How would a statute of limitation operate here, in contrast?