Big Pop Wins Two Court Rulings In New York and Indiana

In Manhattan, Steve Kaplan brought an action against AMC Theatres for a $1,250 dental bill after he bit into an unpopped kernal at AMC Loews Lincoln Square 13 movie theater.  Worse yet, Kaplan experienced the injury while watching “Superbad,” which he left early due to not only his sore tooth but the fact that “Superbad” is superbad.  Stemming from his work as an insurance agent, Kaplan believed that the movie theater would reimburse him both in recognition of a duty to remove the offending kernels or a duty to warn consumers of the danger.

The case turns on the foreign/natural test in torts that allows consumers to recover for such damage due to foreign objects in food.  See, e.g., Stark v. Chock Full O’Nuts, 77 Misc 2d 553, 356 N.Y.S.2d 403 (AppTerm, 1st Dept. 1974); Grossman v. Hotel Astor, 166 Misc 80, 1 N.Y.S.2d 307 (Municipal Ct, NY County 1937).  The test can turn on reasonable expectations as in Vitiello v. Captain Bill’s Restaurant, where the plaintiff bite into a fish bone.  The court ruled for the restaurant and held that the consumer had “no right to expect a perfect piece of fish” and that “[e]veryone … knows that tiny bones may remain in even the best filets of fish.”

In the same fashion, Civil Court Judge Matthew Cooper viewed the danger as inherent in movie theater snacking.

Anyone who has ever made fresh popcorn in a microwave, in a popcorn popper, or on the stove soon learns the bitter truth that the final product is almost always marred by the presence of unpopped, partially popped or burnt kernels. Similarly, anyone enjoying popcorn at the circus, at the ballpark or at the movies learns that there is no such thing as a bag, a tub, or a bucket where all the kernels have fully popped. Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process.

So what is the popcorn-craving moviegoer to do to guard against dental damage, short bringing a flashlight into the theater to inspect each kernel for possible hazards? One thing may be to resist the urge to devour the bag by the handful in favor of more cautious nibbling by the piece.  . . . The other thing may be simply to say no to popcorn, with its tooth-fracturing potential, and settle for something else from the concession stand, like those giant-sized boxes of Raisinets or Milk Duds. But then again, aren’t Milk Duds known to pull out your fillings?

In other words, caveat eater . . . nosh at your own risk.

In the Indiana case, federal Senior Judge Sarah Evans Barker ruled against 27 workers who claimed that they suffered respiratory injuries from exposure to a microwave popcorn butter flavor ingredient.  The ingredient is diacetyl  and the workers alleged that they suffered the injuries while working at ConAgra Snack Foods Group Plaint in Rensselaer.   The plant packages microwave popcorn and were allegedly exposed to butter flavors that contained diacetyl.

The outcome is driven by the more difficult standard in product liability cases imposed in Indiana:

Plaintiffs argue that there is a question of fact as to whether or not Givaudan’s butter flavors were defectively designed because Plaintiffs’ experts opine that butter flavors that contain diacetyl cause lung diseases, and Givaudan’s expert (Bratton) testified that diacetyl-free butter flavors were available and used by some popcorn makers as early as 1989.3 Dkt. No. 583 at 17-24. However, under Indiana law, to show a defective design, Plaintiffs “‘must compare the costs and benefits of alternative designs’ and ‘show that another design not only could have prevented the injury but also was cost-effective under general negligence principles.’” Piltch, 778 F.3d at 632 (quoting Pries v. Honda Motor Co., 31 F.3d 543, 545-56 (7th Cir. 1994)). Although Plaintiffs argue otherwise, “expert testimony on an issue is required when the issue is not within the understanding of a lay person.” Id. (citing Daub v. Daub, 629 N.E.2d 873, 878 (Ind. Ct. App. 1994); referencing Owens v. Ford Motor Co., 297 F. Supp. 2d 1099, 1103-04 (S.D. Ind. 2003)). Here, presuming without deciding that Plaintiffs’ causation experts’ testimony is admissible, Plaintiffs provide no expert testimony on the costs and benefits of a diacetyl-free butter flavor or that the diacetyl-free butter flavors that existed prior to 2007 were cost-effective alternatives under general negligence principles. These elements cannot be “assumed” from Plaintiffs’ causation evidence or Bratton’s testimony. The costs and benefits of diacetyl-free butter flavors, or their cost effectiveness, is not common knowledge. Further, the fact that a diacetyl-free alternative existed is not enough; Plaintiffs must present evidence that the diacetyl-free butter flavors’ risks, benefits, and costs were favorable.


While Indiana has applied the traditional “consumer expectation test” of whether a product was more dangerous than the expectations of the ordinary consumer, it later adopted the more controversial “alternative design” test associated with the Restatement Third.  The latter standard places a heavier burden on plaintiffs and is preferred by defendants in product liability cases.

18 thoughts on “Big Pop Wins Two Court Rulings In New York and Indiana”

  1. Superbad was released 10 years ago. Has this case been percolating for that amount of time?

    Some scenes are fully

  2. A challenge to all to produce a container of pop corn with no hard or un cooked kernels is persuasive . Assumption of risk is a part of life. everything we do has some risk. This should be more widely applied. when someone breaks into a home and gets hurt escaping they take the homeowner to court for the injury and often win. When illegals are arrested and deported but leave their possessions and family behind they assume that risk by being here illegally. eating popcorn has a risk as well. the judges were correct.

  3. No offense meant, but this lawyer who took this case should be ashamed. Some day some moron will sue because there were ants that invaded his/her picnic. The public has lost it’s mind…. insanity rules.

  4. The Court that concluded that unpopped popcorn kernels is a risk that must be assumed by the consumer is pure, unadulterated BS. If there is an inherent risk that a movie theater serves its popcorn by scooping at the BOTTOM (which is the only way that unpopped kernels could happen), then it is incumbent on the seller to fully disclose the risk, just the way a can of clams warns that shell fragments may be present. As a practical matter, popcorn will never contain unpopped kernels if the contents are shaken and the popcorn is scooped from the top.

    But I speak from knowledge. When you become a judge, you no longer need to possess any knowledge of any facts because you can make things up as you go along, and you usually do. Law is the only profession on the planet where judges make decisions all of the time about things (like popcorn in this case) that they have absolutely no knowledge, training, or experience whatsoever.

    1. Ralph Adamo – this judge seems to have both intimate knowledge of popcorn and Milk Duds. 🙂

      1. No offense, Paul, but that judge don’t know ugatz about popcorn.

        The first thing he doesn’t know is that the percentage of unpopped kernels ranges from 4 percent in premium brands to 47 percent in the cheaper ones. Smart popcorn shoppers already know this concept, even if they don’t know the precise percentages involved. However, for prepared popcorn, given that wide range and the potential risk involved, sellers that did not disclose that the popcorn was low quality should automatically be held liable.

        The second thing he doesn’t know is that even in the cheapest brands of popcorn, the unpopped kernels can readily be sifted out by simply shaking the contents so that the unpopped kernels sink to the bottom of the container. A seller that does not do that and fails to disclose that cheap popcorn is being used should be held doubly liable.

        The third thing he doesn’t know is that servers must be trained to only scoop from the top and should never scrap the bottom of the popcorn container to extract the maximum amount of popcorn. Once the popcorn level of a cheap brand of popcorn falls to the bottom 10th of the container, the rest should be discarded (along with those unpopped kernels). A seller who fails to follow all three rules should be triply liable.

        I realize that this is way more information about popcorn than you probably wanted to know. However, I’m presenting this information to demonstrate how completely ignorant of the facts and thus had no factual foundation on which to base his ruling. Like I said, judges are the only “professionals” on the planet that are actually paid to say things about which they know absolutely NOTHING and their erroneous decisions then have to be followed by other judges who also know NOTHING.

        1. Ralph Adamo – did spend some of your misspent youth working in a movie theater scooping popcorn? Personally, I do not eat popcorn because of the kernels, but my wife does.

          1. Close, Paul. One of my first jobs was working in a movie theater. However, I didn’t handle concessions, though I knew what the job entailed. I was an usher. And I wouldn’t call those days “misspent.” I have fond memories of that period in my life. Plus, movies were a lot better then and I enjoyed seeing bits and pieces of movies dozens of times in a week. I can’t imagine what the job would be like today. With the kind of crap they play in theaters today, watching movies more than once would be tantamount to torture.

            1. Ralph Adamo – I used to teach film and would have to periodically change the lineup of films the students would watch because I was tired of watching them. 🙂 However, over the years I had seen so many great films it was always easy to substitute a new film of equal or better quality.

              1. You taught film? That’s great. Please let me know some of the titles of the films you chose for your classes.

                1. Ralph Adamo – it has been over 20 years since I retired from actively teaching, so my memory is a little rusty. Each film was picked to fit some aspect of the film industry or history and usually was an Oscar winner or at least nominee in that category. I will try to remember as many as I can and the category.

                  Singin’ in the Rain – musical comedy written for the screen
                  Ran – foreign film
                  The Graduate – editing
                  The General – silent comedy genius
                  The Big Country – musical score
                  Deathrace 2000 – B movie
                  Citizen Kane – overall greatest film
                  Rebel without a Cause – method acting vs studio acting
                  Shane – cinematography

                  Sorry, those are the only ones I can remember now. 🙂 I do remember ruining film going for my students for a while and their parents. 🙂 I taught my students to pick apart the film, look for the flaws and then put it back together. Then discuss it. They should also look for the good parts.

                  1. Wow, that’s quite an eclectic list. I’ve seen all of them more than 4 times, except “The Big Country,” which I’ve seen just once or twice, and some I’ve seen more than 10 times, with “The General” and “Citizen Kane” probably at the top of my most viewed. (You might be interested to know that Orson Welles thought “The General” was the masterpiece of the silent era.) Yes, even “Deathrace 2000” which should have a cult following, but I don’t think it does (at least not anymore). I don’t see how pointing to flaws ruins them. Nothing is perfect.

                    As for editing, yes, Sam O’Steen’s editing for “The Graduate” was quite innovative and many of the techniques used for the first time have been emulated since. However, my favorite editing example is Elmo Williams’ work in “High Noon.” I am wowed each time I see it and it doesn’t matter in the least that I know exactly what’s coming up next. And, of course, you have to love the editing in the fourth reel of “Battleship Potemkin” by Grigoriy Aleksandrov and Sergei Eisenstein. That must have been an awesome film experience for those who first saw it in 1925.

                    Anyway, thanks for sharing your thoughts. As the late, great Sam Kinison says in the clip below from “Back to School,”I like the way you think . . . I’m going to be watching you.”

                    1. Ralph Adamo – I started by using High Noon, but got tired of it and switched to The Graduate. The editing in both is superb.

  5. I’m thinking that I’ll stick to unflavored popcorn and add my own real butter, should I feel the need to make this snack. Chemicals that taste like butter are not real food. I recall making some kind of esther in lab class that mimicked bee pheromone, and smelled strongly of banana. I don’t care how similar to banana it smelled; I wasn’t going to eat it.

    I would have thought that the second case would have gone to OSHA. Not sure I agree with the alternative design law. Regardless of whether diacetyl-free butter flavor was available, workers need to have proper protective equipment that protect against industrial disease.

    1. This is yet another example of why we often cannot rely on government–here the judiciary–to fully protect our health. We need to take charge and do the research ourselves for our own interests.

      Sadly, a case such as this should give pause to anyone considering purchasing products from these producers, alas as long as there is cheapness and convenience most people will sell their health to the devil. I lament sometimes that chemicals that kill slowly over decades are more dangerous than those that harm immediately. People and regulators mostly eliminate these dangers quickly from their lives, but if it doesn’t happen immediately, people rationalize the risk and believe it won’t harm them and continue to engage the harm.

      As to the plaintiff who alleged the tooth injury, surprisingly he didn’t demand greatly more compensation. I will give his case at least a measure more credibility for that.

      1. People place too much trust in the FDA and USDA. If it’s sold as food here in the US, then it must be safe to eat. We do not have enough nutrition savvy and education on the effects of processed foods. The poor suffer the worst effects of living almost exclusively on cheap, subsidized processed foods. And what information we have has undergone a sea change. The entire Food Pyramid was actually based on a study of people during the Lenten fast, and did not yield accurate information on the subjects’ true diet.

        I love to see the growing grassroots movements of school gardens, community gardens, Community Supported Agriculture, gleaning, educational gardens, hunting, fishing, foraging, raising eggs or poultry,…anything to connect people to fresh, whole, real food. We’ve gone from the most successful species on the planet to people who cannot feed themselves if it doesn’t come ready to eat in a store.

  6. I do agree with the judge in the first decision, Milk Duds are dangerous to your fillings. 🙂 I am a little iffier about the 2nd decision. It could have gone either way, but given the stand taken by the judge, it was the right decision.

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