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Dyvex Industries, Inc. v. Agilex Flavors & Fragrances, Inc.

United States District Court, M.D. Pennsylvania

March 22, 2018

DYVEX INDUSTRIES, INC., Plaintiff,
v.
AGILEX FLAVORS & FRAGRANCES, INC., et al., Defendants

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         Pending before the court is the motion for summary judgment, pursuant to Fed.R.Civ.P. 56(c), of defendants Agilex Flavors & Fragrances, Inc., Aromatic Technologies, Inc. and Aroma Tech (collectively referred to as “Agilex”), (Doc. 101), regarding all of the four remaining claims in the complaint, (Doc. 1), filed by plaintiff Dyvex Industries, Inc. (“Dyvex”) in this product liability case. Dyvex claims that Agilex provided it with a defective fragrance oil that caused a fire which significantly damaged its building. Dyvex alleges that Agilex knew or should have known its fragrance oil presented an unreasonable risk of fire, and was unsafe and unsuitable for use in the Buss-Kneader compounding extruder machine for which it was supplied to Dyvex for its production of fragrant plastic pellets. The motion has been fully briefed by the parties. Based upon the court's review of the motion and related materials, the court will GRANT IN PART AND DENY IN PART Agilex's motion and, JUDGMENT will entered in favor of Agilex only on Dyvex's claim for breach of contract.

         I. BACKGROUND[1]

         The remaining claims in Dyvex's complaint against Agilex are for negligence, breach of contract, breach of warranty, and strict liability.[2] (Doc. 1). Dyvex alleges that the fire at its facility “was caused to occur by the culpable conduct of Agilex, ..., in supplying a fragrance oil for Dyvex to incorporate into polymer fragrance concentrate products that Agilex knew or should have known presented an unreasonable risk of fire, and was unsafe and unsuitable for use in the [Buss-Kneader] machine for which it was supplied.”[3]

         On April 3, 2017, Agilex filed a motion for summary judgment, (Doc. 101), with respect to Dyvex's remaining four claims. Agilex's motion has been briefed by the parties and exhibits have been submitted. (Docs. 102, 113, 130 & 133).

         II. DISCUSSION[4]

         With respect to all four of Dyvex's remaining claims, Agilex states that it is undisputed that on the night of the fire, its PPG fragrance oil was not being processed by Dyvex in its Buss-Kneader machine.[5] Rather, Agilex states that a drum of unknown fragrance oil was being processed at the time and that the deposition testimony of Manchio, Dyvex's only employee working at the time of the fire, confirmed this fact. Agilex points out that its three 55-gallon drums of PPG were a “significant distance away from the Buss-Kneader machine” and that none of its three drums were laying horizontally at the time of the fire near the machine, which indicates that they were not being used and processed at the time. Manchio testified that while a drum of fragrance oil was being processed “it gets put on a cart on its side and it has a spigot put in.” The photos taken after the fire by Profka and the PSP, upon which Agilex relies, show that its three 55-gallon drums of PPG were positioned vertical on the floor and not laying of their side, and they had no spigots in them. Nor were Agilex's drums near the kneader machine.

         Further, Agilex states that at the July 29, 2010 joint inspection of the Dyvex's facility, Long tagged Agilex's 3 drums of PPG as follows:

         • PPG Drum 1 (Not Processed; 3/4 full): Perfectly Pomegranate Gras Oil Shipping Drum # 1)

         • PPG Drum 2 (Not Processed; 3/4 full): Perfectly Pomegranate Gras Oil Shipping Drum # 3)

         • PPG Drum 3 (Alleged subject drum that was partially processed; 1/4 Full): Perfectly Pomegranate Gras Oil Shipping Drum # 2)

         • PPG Drum 3 was in a vertical position at the time of the fire.

         Based on Long's analysis of the post-fire scene, he opined in his report as follows:

         1. The area of fire origin was at the [Buss-Kneader machine] located in the northwest rear area of the Dyvex facility.

         2. At the time of the fire, Perfectly Pomegranate Gras Oil (PPO) manufactured by Agilex was not being processed in the Buss kneader.

         3. PPO played no role in the origin, cause, growth/development, or spread of the fire.

         4. At the time of the fire, an unknown liquid was being processed in the Buss kneader. The unknown liquid was not PPO.

         5. The three (3) 55-gallon drums of PPO stored at the Dyvex facility at the time of the fire did not contribute to the damage caused to the building or its contents as a result of the fire.

         Similarly, Agilex's other expert, Caulfield Engineering, also issued a report and opined as follows:

         1. The subject drum on the horizontal stand next to the Buss-Kneader at the time of the fire is not one of the three Perfectly ...


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