“Popcorn Lung” Case Generates $7.2 Million Verdict Against Manufacturer and Store Chain

Wayne Watson, 59, has won a major damage award in a “popcorn lung” case where a jury gave awarded $7.2 million for being injured by inhaling fumes from microwave popcorn on a daily basis. We previously discussed this new theory of causation and harm. In this case, manufacturer Gilster-Mary Lee as well as King Soopers supermarket chain and its parent, Kroger Co., were held accountable for the harm suffered by Watson who ate microwave popcorn every day.

Defense counsel scoffed at the underling notion of the verdict, saying that his client “might have well have warned that there are aliens popping out of the bags because there’s just as much support for that.” The defendants insisted that Watson’s condition was caused by a carpet cleaner that he used.

Watson however insisted that he would consume two bags a day of the popcorn and would inhale the fumes. The difference in accounts led to a classic war of experts. The case appears to have been won on the basis for determination of a doctor from National Jewish Hospital diagnosing Watson’s condition as “popcorn lung” five years ago. It is believed to be the first such diagnosis in the country.

The low incidence of the illness creates a difficult causation question given the huge numbers of consumers. However, there are other types of product liability cases where only a small percentage of users are injured. The question is whether there was a design defect in the use of diacetyl in butter flavorings as well as the lack of a warning. To use a negligence concept, the famous Hand formula looks at the probability of an injury, the gravity of the injury, and the burden needed to avoid the accident. The gravity is quite high if the diagnosis of popcorn lung is valid. Of course, in strict liability, manufacturers are held liable for any design, manufacturing, or warning defects. This is based on the concept that the manufacturer is the “cheapest cost avoider” — the party who can avoid injuries at that lowest cost.

I expect a determined appeal in the case, though usually factual determinations by a jury is great deference on appeal. This may turn on the question of whether the court should have intervened in limiting the underlying expert testimony. However, I assume the defendant filed a Daubert motion to exclude the presentation of unqualified evidence to the jury pursuant to the standards set out in Daubert v. Merrell Dow Pharmaceuticals. The Supreme Court in General Electric Co. v. Joiner, held that an abuse-of-discretion standard of review governs such question and gives judges a key gatekeeper role in such questions. The ruling remains controversial in expanding the ability of courts to keep some scientific theories from juries. However, even under what many view as the pro-defendant opinion by Chief Justice William Rehnquist in General Electric, the basis for popcorn lung is sufficiently accepted by many doctors that an exclusion would have raised serious questions of judicial overreach.

Source: CBS

50 thoughts on ““Popcorn Lung” Case Generates $7.2 Million Verdict Against Manufacturer and Store Chain”

  1. Although it may sound humorous, it’s no joke:

    Bronchiolitis obliterans is irreversible and severe cases often require lung transplant to prevent death–suffocation is a terrible thing to suffer.

    Anyone who works in the vicinity of a microwave used by employees to make popcorn is getting too much exposure. The bigger question is: why expose anyone to this substance? It’s not “food” and it’s not safe and it doesn’t even taste good.

  2. I’ve heard of “popcorn brain” — certain parts of a person’s brain “pop” and others do not, regardless of the heat applied. Like those kernels you always find at the bottom…

  3. bill Mcwilliams,

    Did you read my excerpt from Wikipedia?
    If you did how can you say it was “coined by this man’s lawyers” Are you shilling for the defendants?

    “While several authorities have called the disease “popcorn worker’s lung”, a more accurate term suggested by other doctors may be more appropriate, since the disease can occur in any industry working with diacetyl: diacetyl-induced bronchiolitis obliterans.” Sounds like the name has been around for a while. Agreed?

  4. Ishobo contributed:

    “It was the King Soopers brand of popcorn.”
    ~+~
    That makes a difference, thanks for bringing that to our attention.

  5. “Popcorn lung” sounds like something made up by a marketing person, but
    was probably coined by this man’s lawyers – in hopes that the term will entice other such victims (sic) to come forward and join a class action suit.
    BIG payoff time for the trial bar.

  6. I understand from that shown below at Wiki that this islolated case is not representative of Diacetyl damage, since he also worked with carpet cleaning.
    The Safety review below makes clear that our govermnment agencies are not taking care of us but coveeing for industry. As usual.
    In 2006 the unions with support of 50 (?) scientists petitioned OSHA and OSHA has stalled since then.
    =================================================

    “Worker safety

    The United States National Institute for Occupational Safety and Health has suggested diacetyl, when used in artificial butter flavoring (as used in many consumer foods), may be hazardous when heated and inhaled over a long period.

    Workers in several factories that manufacture artificial butter flavoring have been diagnosed with bronchiolitis obliterans, a rare and serious disease of the lungs. The cases found have been mainly in young, healthy, nonsmoking males. Lung transplantation is the only known cure for bronchiolitis obliterans.

    While several authorities have called the disease “popcorn worker’s lung”, a more accurate term suggested by other doctors may be more appropriate, since the disease can occur in any industry working with diacetyl: diacetyl-induced bronchiolitis obliterans.

    In 2006, the International Brotherhood of Teamsters and the United Food and Commercial Workers petitioned the U.S. OSHA to promulgate an emergency temporary standard to protect workers from the deleterious health effects of inhaling diacetyl vapors.[8] The petition was followed by a letter of support signed by more than 30 prominent scientists.[9] The matter is under consideration. On 21 January 2009, OSHA issued an advance notice of proposed rulemaking for regulating exposure to diacetyl.[10] The notice requests respondents to provide input regarding adverse health effects, methods to evaluate and monitor exposure, the training of workers. That notice also solicited input regarding exposure and health effects of acetoin, acetaldehyde, acetic acid and furfural.[11]
    ==============================0

    Note that now it is identified as an ARTIFICIAL flavoring added to the product. Not as implied in the earlier excerpt as the result of a lactic blabla start culture, implying a natural process such as adding yeast to a dough. Small words make big differences.

    Thanks Matts.

  7. @Turley

    The defendants insisted that Watson’s condition was caused by a carpet cleaner that he used.

    Not exactly accurate. He was employed as a carpet cleaner, hence he inhaled many cleaning chemicals over the years.

  8. @Darren Smith

    It almost seems to me that in holding the grocer liable for a manufacturing / labeling issue that it was not a part of…

    It was the King Soopers brand of popcorn.

  9. Malisha 1, September 21, 2012 at 12:21 pm

    Put your money where your mouth is.
    Then shoot a kernel of popcorn at it.

    1) Fluid milk, class one
    2) Cultured products and ice cream, class two
    3) Cheese and butter, class three

  10. I remember concerns about this coming out years ago and people being advised not to overdo, this guy overdid, was there any contributory negligence considered?

  11. I knew that fresh churned butter had little taste, and that all in the stores were quick processed using an additive to achieve a buttery smell/taste. Otherwise the natural process takes two weeks according to my farmer sources.

    But I guess there is no danger if you don’t smell it most of the day everyday.

    “In milk products

    Sour (cultured) cream, cultured buttermilk, and cultured butter are produced by inoculating pasteurized cream or milk with a lactic starter culture, churning (agitating) and holding the milk until a desired pH drop (or increase in acidity) is attained. Cultured cream, cultured butter, and cultured buttermilk owe their tart flavour to lactic acid bacteria and their buttery aroma and taste to diacetyl.[6]

    Source: Diacetyl at Wiki.

  12. Bruce 1, September 21, 2012 at 11:21 am

    Was he a smoker too? Kill the lawyers, save the business.
    —————————————————————————–
    If there’s an end of world event, are you a lawyer?

  13. Not a good time to be a grocer. It almost seems to me that in holding the grocer liable for a manufacturing / labeling issue that it was not a part of, it leads me to wonder if grocers are going to have to evaluate the safety and warning labels of each SKU they offer.

  14. Defense counsel scoffed at the underling notion of the verdict, saying that his client “might have well have warned that there are aliens popping out of the bags because there’s just as much support for that.” The defendants insisted that Watson’s condition was caused by a carpet cleaner that he used.

    Watson however insisted that he would consume two bags a day of the popcorn and would inhale the fumes. The difference in accounts led to a classic war of experts.
    =================
    Why was he inhaling the fumes? And don’t blame the carpet cleaner. Stay away from the gasoline tank.

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