“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. ID707,

    I never pulled their pigtails. One of them said, I wish I had a recording so I could play it back to you. I said I wish you had the recording too.

  2. Matt,

    You are nsughty. You are the kind that pull the plaits on the girl at the desk in front of you. And you haven’t aged a bit since then. Didn’t your teachers react to your impediment?

    Mine beat the excrement out of me!!!! Emotionally of course.

  3. Yeah we used to put Werthers in the CHristmas Baskets we gave folks. And Ferrero Rocher. I have to stop writing about this stuff; Oh I know, let’s talk about torture or something!

  4. ID707,

    A long time ago, in the small European village of Werther, candy-maker Gustav Nebel created his finest candy. He used the best ingredients – real butter, fresh cream, white and brown sugars, a pinch of salt and a lot of time – to create a treasure worthy of being wrapped in gold. Because they turned out especially well, they were named Werther’s in honor of the little village. Crafting this smooth, creamy caramel became a family tradition handed down through generations. Today, people all around the world enjoy the unique taste of Werther’s Original.

  5. matt,
    Are Werthers the round flat ones with butterscotch color and flavor? If so we had them here. But swedes don’t like hard candies that cost a nickel more than the slaughterhouse bone products. Penny candies are CHEAP.

    Not as long as we keep pumping tax moneys in their pockets.

    I presume they have an american company who benefits just like american oil companies do.

  6. Matt you can change behavior for things you can change. You can;t go back and undo what has been done, whats done cannot be undone, but hopefully BP fines and settlements will change their bejavior (have hopefully)

  7. Malisha 1, September 22, 2012 at 8:10 pm

    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.
    Did you give the guards Werther’s Original Hard Candies? That’s really good. It’s The Classic Candy made with Real Butter and Fresh Cream.

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