For several years, courts around the country — particularly in the Midwest — have been addressing what has been referred to as the ”popcorn lung” litigation. These cases, brought by workers in factories that manufacture microwave popcorn, allege that exposure to diacetyl (a chemical in the artificial buttering used in the manufacture of microwave popcorn) has caused the workers to suffer from various respiratory diseases.
More recently, however, individual consumers have sought to get in on the action by claiming that they too are suffering from the same respiratory ailments, including Bronchiolitis obliterans (commonly referred to as “popcorn lung”), that the factory workers who manufacture the microwave popcorn have been complaining about. On July 2, Judge Rosanna Malouf Peterson of the United States District Court for the Eastern District of Washington issued an opinion that may assist in slowing down these consumer cases by requiring that the plaintiffs present expert evidence on causation to show that they could be, and actually were, exposed to sufficient levels of diacetyl to cause their complained of injuries. This opinion not only provides useful ammunition for companies defending against consumer plaintiff claims of “popcorn lung,” but it also highlights the potential benefits of aggressively attacking flimsy expert evidence that is not adequately supported.
In 2007, Wayne Watson was the first consumer to be diagnosed with potential “popcorn lung.” Watson, who claims to have eaten two bags of microwave popcorn per day for a decade or more, appeared on NBC’s Today show in September 2007 and was the first consumer to bring a tort claim against the manufacturers of diacetyl. The physician who diagnosed Watson, Dr. Cecile Rose, acknowledged that she could not definitively establish the link between Watson’s consumption of microwave popcorn and his respiratory disease. Watson settled his claim, but the press surrounding his case spawned a number of other claims by consumers around the country who claim to be suffering from “popcorn lung” after eating high amounts of microwave popcorn on a daily basis over the course of a number of years.
In Newkirk v. ConAgra Foods, Inc., No. 2:08-cv-00273 (E.D. Wash), Judge Peterson granted ConAgra’s Daubert and subsequent summary judgment motions based on the insufficiency of plaintiff’s expert testimony regarding causation. In Newkirk, the plaintiff sought to establish general causation through the testimony of Dr. Egilman, who opined that there was “no known safe level of diacetyl exposure” and that exposure to diacetyl vapors emanating from a microwave when popcorn was cooked was sufficient to cause the respiratory ailments plaintiff was suffering from. Dr. Egilman relied on studies conducted in cases of popcorn factory workers to support his conclusions. However, the court found that Dr. Egilman did not have a sufficient scientific bases to support his conclusion that there was no medically relevant difference between the level of vapor emitted from a mixing vat in a popcorn plant and a microwave in a consumer’s kitchen. The court held that Dr. Egilman’s conclusions went far beyond the conclusions reached in the various scientific studies he relied on, and that he manipulated the data to reach misleading conclusions in support of his theory.
Additionally, Dr. Egilman sought to make “legal conclusions” based on his expert report. For example, Dr. Egilman opined that ConAgra “knew” of the danger to consumers relating to diacetyl exposure and “failed to warn” consumers of such dangers. Not surprisingly, the court excluded these legal opinions as going beyond the scope of expert testimony and encroaching on the duties reserved to the court and jury. With plaintiff’s general causation expert excluded, plaintiff was unable to withstand ConAgra’s motion for summary judgment, and therefore, the case was dismissed.