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.