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.