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
leejcaroll 1, September 22, 2012 at 8:08 pm
Matt – you can make chocolate covered raisins yourself too, a little melted hershey’s chocolate, some nice plump raisins, mix and viola.
Fracking and miniing, cant do that on your own. and jokes aside youre right.
Problem with these suits is that if the companies have been warned and do nothing you hope ‘awards’ like this will make them change their behavior- although I understand that McDonalds went back to serving coffee hotter then regs allow.
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There are still chunks of oil washing ashore from the BP disaster. The situation will change when it changes. Do you know how that is going to change?
What goes down must come up.
I’m all ears. 😉
Well just to continue in an unscientific line on fracking.
If you don’t know what the phuck you are doing, then don’t frack around. Aquifers have kept us watered more than we realize. What has kept Libya and the Gaza Strip going for two thousand years.
The Americans ones are being poisoned now. Just like the air you breathe. Rant rant. It is your grandkids lives you are screwing with—or rather “they”.
Idealist, “Anybody have any suggestions how we can get rid of immunity protection of various parts of the government.”
Yes.
Suggestion: Everyone should listen to ME. ❗
Matt J — chocolate covered raisinettes? You can also put them in a bag and nuke them but they’ll be disgusting.
My kid and his “girlfriend” are anti-fracking activists. When the got arrested for that tar sands demonstration I had to go down to the courthouse with cash for their bond and candy to bribe the guards. They explained fracking to me. I believe it’s no fracking good, but again, I’m leaving the research to others.
Further, we elected them on the basis of their claim of competence. We fund them with our taxes for agreed upon by law their services. Is this not a form of breach of contract?
Some forms of accountability other than those available today should be developed.
Blowing in the wind, of course.
Matt – you can make chocolate covered raisins yourself too, a little melted hershey’s chocolate, some nice plump raisins, mix and viola.
Fracking and miniing, cant do that on your own. and jokes aside youre right.
Problem with these suits is that if the companies have been warned and do nothing you hope ‘awards’ like this will make them change their behavior- although I understand that McDonalds went back to serving coffee hotter then regs allow.
Anybody have any suggestions how we can get rid of immunity protection of various parts of the government.
Why should an agency, elected official, or whatever stand free from answering for damage resulting from its/his/their actions?
Unless the chemicals come back out in your drinking water.
Some may be interested to know that diacetyl is in other things too–like “grill grease” (the stuff fry cooks use to cook your eggs and pancakes and such, and I suspect, to “butter” your toast):
http://www.seattlepi.com/national/article/Flavoring-additive-puts-professional-cooks-at-risk-1259353.php
This one reason I’ve done more and more cooking at home, with quality ingredients. Don’t even get me started on “truffle oil” which is a concocted chemical abomination having nothing to do with truffles…
And yes, when thing cause harm, torts should be brought. Ridicule is just a form of denial and/or cover-up.
Malisha 1, September 22, 2012 at 8:39 am
You can put ordinary popcorn into an ordinary paper bag and pop it in the microwave without all that chemical sh*t. You can also still get “hot air popcorn poppers” at some thrift shops; they were good Christmas presents about 20 years back: no oil, no junk. You can pop corn in a pot with a cover, using oil on the bottom. You can give up popcorn and just eat chocolate, too. Or folded over potato chips.
AY, I just meant a joke. This is a tough room…
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How about Milk Chocolate Raisinets?
How about the fracking oil mining technology? The water and sand aren’t a problem. The chemicals they’re pumping into the ground along with the water and sand aren’t coming back out.
idealist707 1, September 21, 2012 at 3:26 pm
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.
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My pleasure.
bill mcwilliams,
You added a point of which I have no knowledge of. Conceded. It thus becomes what I said I desired, a factor to which business and agencies must learn to live with.
Worker and consumer safety are notoriously ignored by both of the abovenamed. Agreed?
“Further, I would like to see the day come when we see the responsible agencies, OSHA in this case, on the defendant list.
Again, as it will be the only way for us to effect those from whom we may not otherwise claim accountability.”
You do not comment to all the earlier points made in my many comments.
Does that mean you concede them? Or that you just wanted to reinforce this one which you made earlier?
Glad for opposing points. My knowledge is deficient, that has been conceded on many threads. So welcome again.
3rd missed point:
Trial lawyers love negligence cases that can marketed into becoming big
class action suits. “Popcorn Lung” is a catchy category. Sort of like replacing “mothers and fathers” with “moms and “dads”. Know what I mean,
“idealist”?
No ones reading or responding anymore.
But I think we missed a two big points here.
One. Some feel that this is an example of the “tort” problem taxing America’s bla bla businesses. I don’t agree.
Two. It is an example of how we the people can be compensated for the mistreatment, etc. visited upon us by
powers from which we otherwise may not expect compensation.
Further, I would like to see the day come when we see the responsible agencies, OSHA in this case, on the defendant list.
Again, as it will be the only way for us to effect those from whom we may not otherwise claim accountability.
I would enjoy seeing how this could be used as a steering instrument on agencies. Bureau chiefs are easily replaced, funding likewise. Bureaus have an enormous power to oppose reform. CIA again is a excellent example. Even, in the CIA case, pouring billions on the problem (for ex post-9/11) does not effect ANY change.
I will cross post this in the hope of it reaching some eyes here at Turley’s.
“You can also still get “hot air popcorn poppers” at some thrift shops; they were good Christmas presents about 20 years back….”
Now I know why garages get filled.
Of course when a kid moves out, in return for a little start help, they must agree to take some of the garage pile with them. The packrat will cry the whole time and weeks afterward—until they can find something with which to replace the loss.
You can put ordinary popcorn into an ordinary paper bag and pop it in the microwave without all that chemical sh*t. You can also still get “hot air popcorn poppers” at some thrift shops; they were good Christmas presents about 20 years back: no oil, no junk. You can pop corn in a pot with a cover, using oil on the bottom. You can give up popcorn and just eat chocolate, too. Or folded over potato chips.
AY, I just meant a joke. This is a tough room…
Dear Folks,
You do realize, I hope, that all of us are mice in a long term toxicity experiment. The number of compound residues from additives, and other active chemical agants in our bodies increase for every day that goes by. We get them in the air, food and water we consume to live.
This in not a controlled study: no non-exposed controls, no central coordination of efforts by different agencies
and contractors, no common long term goal, no short term reporting, no evaluation, no conclusion expected.
Who is protecting the guinea pigs from this unethical experiment? Nobody but, in this case, the unions.
Does that seem right to you?
asiago
All food additives are “tested” for toxicity. Wonder how the test for this substance went?
Partucularly as most of those affected with the lethal “disappearing lung” disease are young healthy males
who DO NOT smoke, accoring to Wiki.
They all may have had earlier careers as carpet cleaners. Never know do ya. NB IRONY in last additive. 😉
Thanks for the extra warning. I won’t hang out with a popcorn gang in front of the TV. And I thought meth was bad, as least you get to keep your lungs after using.
Malisha and AY.
Yeah, good. It is moisture that keeps them from popping. And we know what a dried out brain does. That’s why they are removed from mummies.