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Barbara A. Bessey, CP

By: Barbara A. Bessey, CP

A news article recently caught my eye. The words “popcorn lung” jumped off the headline. My eyes quickly scanned down the page, and just a few lines  below, I saw it — a $7.27 million dollar verdict. Admittedly, the litigation paralegal in me found herself wondering how in the world anything involving popcorn could get a jury to arrive at such a substantial verdict? I was incredibly curious to learn more. How was popcorn harming people, and was there damning information, inter-office memos kept under lock and key, a smoking gun…or in this case, a smoking bag of popcorn?! I had to know. So today, Barbara is here to share information with us regarding this interesting litigation that is sweeping the nation.

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Popcorn has been a popular snack food in America for generations. We all remember cooking popcorn the old fashioned way, over campfires and on top of stoves, as a waft of that distinctly familiar, buttery aroma filled the room.  First to make its way onto scene was Jiffy Pop!  How cool was that? With the development of microwave ovens, popcorn became even more popular and easy to prepare — within two minutes you have popcorn in its own bag!

Wayne Watson is the first consumer to sue and win a $7.27 million dollar award against a popcorn manufacturer. On January 15, 2008, Watson and his wife filed a complaint against Dillon Companies, d/b/a King Soopers, also d/b/a, Inter-American Products, Inc., et al., Case No. 08-cv-00091-WDM-CBS.

Watson alleged in his Complaint that he suffered “as a direct and proximate result of his use of (preparing and consuming) microwave popcorn designed, developed, manufactured, tested, packaged, promoted, marketed, distributed, labeled and/or sold by the various defendants named herein, and his exposure to dangerous butter flavoring products as a directed result of that use, and his resulting serious and permanent lung illness and disease”.

Watson was diagnosed with a relatively rare lung disease called bronchiolitis obliterans, or “popcorn lung” in 2007. He claimed that he ate two or three bags of microwave popcorn daily from approximately 2000 – 2007. Watson’s doctor, Dr. Cecile Rose, a lung specialist at the National Jewish Medical and Research Center in Denver was initially unsure, but knew he must be inhaling something. She began questioning her patient and asked him if he consumed a lot of popcorn. Watson was amazed that she would ask such a question wondering how she could have known his daily habit. Dr. Rose was familiar with research and the existence of “popcorn lung” in factory workers of flavoring factories and microwave popcorn plants.

This disease and related respiratory conditions were no strangers to factory workers employed in plants that manufactured microwave popcorn. Watson alleged that Defendants knew or should have known of the hazardous nature of the use of the natural and artificial butter flavorings in the microwaveable popcorn product they produced. He also alleged that Defendants failed to warn that “preparing microwave popcorn in a microwave oven as intended and smelling the buttery aroma could expose the consumer to an inhalation hazard and a risk of lung injury.”

The complaint also contained negligence, strict liability, failure to warn, and violations of the Colorado Uniform Deceptive Trade Practices Act allegations, and included Watson’s wife’s loss of consortium allegations, in addition to his claim for medical expenses.

The Case

The Parties’ Statement of Facts and many of the exhibits of the Parties’ case were reviewed by the Court and enumerated in the Court’s Order on Motion for Summary Judgment and Motion to Exclude Testimony. See, http://co.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110622_0003940.DCO.htm/qx.

The popcorn was manufactured by Gilster-Mary Lee, a company that produces almost half of the microwaveable popcorn sold. Workers mix butter flavorings with oil, salt and coloring in large heated tanks. The mixture remains heated and piped to a holding tank. The mixture is then injected into the bags as they move along the production line and the bags are sealed and wrapped. Workers in quality control select and pop bags of popcorn at random. The contents are measured proportionately between popped and unpopped kernels and notations made regarding the quality of the product. Workers generally popped 100 bags, per worker, per shift, and in some instances, in small ventless rooms. Of course, each plant may have different statistics depending upon how the plant’s processes were handled, the working environment, and other elements.

Workers in the mixing rooms, workers who worked in areas where inadequately isolated flavoring tanks were stored, and workers in quality control were found to show a greater risk for lung disease. Plaintiffs’ attorneys argued that Watson’s actions were akin to workers in the quality control unit; however, at a much lower exposure rate.

The Court’s Order discussed in its “background” that “[d]iacetyl was the predominant chemical in air sampling of volatile chemicals at the plants.” (Referencing, Kathleen Kreiss, Flavoring-related Bronchiolitis Obliterans, CURR. OPIN. ALLERGY CLIN. IMMUNOL., 7: 162, Exh. 6 to Pls.’ Statement of Facts, ECF No. 600-6, at 165). The Order also stated that “studies of emissions from microwave popcorn preparation have shown that the highest levels of release occur when opening the bag after popping”. (Referencing, Jacky A Rosati, et al., Emissions from Coking Microwave Popcorn, CRIT. REV. IN FOOD SCI. & NUTRITION, Vol. 47, 701 (2007), Exh. 47 to Pls.’ Statement of Facts, ECF No. 602-7, at 709).

The above-points noted by the Court in its Order were a select few points contained within the volume of information that was presented to the jury. Only a select few exhibits that the Court reviewed in preparing its Order that were presented at trial are listed below in the Resources section of this article. These may be readily found on the internet by anyone researching the topic of “popcorn lung,” including this reviewer.

The Verdict

The jury awarded Watson $667,961 in damages for economic losses excluding any damages for physical impairment; $1,000,000 for noneconomic losses or injuries excluding any damages for physical impairment; $450,000 for physical impairment; and $5,000,000 in punitive damages. Watson’s wife received $100,000 in damages for her loss of consortium. The jury also awarded the Watsons post-judgment interest and the costs.

Let’s Look at Some of the History

First impressions are probably, “How could this happen?” Everyone has popped and eaten microwaveable popcorn many, many times without issue. Bloggers, attorneys, and commentaries have interviewed the parties and their attorneys and reporting what information is available. At this time, it is not known if any or all of the Defendants will appeal the jury verdict. Commenters of blog articles resonated from, “Really?”; “It’s always somebody else’s fault”; “Get real”; to condensed timelines regarding the history of the discovery of the effect of diacetyl on factory workers at the artificial flavoring factories and microwave popcorn plants from inhaling the fumes.

What is diacetyl? Diacetyl is a natural byproduct of fermentation and occurs in alcoholic beverages, such as in some beers, especially English pale ales. Diacetyl (2,3-butanedione) is a ketone with butter-flavor characteristics and is added to some foods to enhance a buttery flavor. It is approved by the Food and Drug Administration for such purpose.

In 1985, the National Institute for Occupational Safety and Health (NIOSH) visited an Indiana manufacturing facility that produced flavorings for bakeries after two individuals, who were healthy non-smokers, were diagnosed with a severe, obstructive pulmonary disease.  Diacetyl was one of the chemicals used in the factory’s flavoring processes.

In 1993, the German company, BASF, The Chemical Company, completed a laboratory study on rats that underwent a single four-hour exposure to diacetyl vapors in which they all died.

In May of 2000, the Missouri Department of Health notified Occupational Safety and Health Administration (OSHA) that ten workers from a popcorn manufacturing plant had bronchiolitis obliterans and asked OSHA to inspect the factory.

Between August and November of 2000, NIOSH investigated the Missouri microwave popcorn manufacturing plant.  NIOSH’s findings were conclusive that workers exposed to the flavorings were at risk for developing an obstructive lung disease. In December of 2000, NIOSH issued their interim recommendations to the Missouri plant on ways to control workers’ exposure to the artificial butter flavoring. In September of 2001, NIOSH followed up with the plant to distribute materials describing the results of the investigation, ongoing activities, and worker precautions. Also at this time, the attorney(s) representing the ill workers filed complaints with OSHA, noting that injured workers’ health continued to deteriorate even after the plant instituted NIOSH’s recommendations.

In April of 2002, scientists from NIOSH and the Missouri Department of Health published an article in the Centers for Disease Control’s (CDC) Morbidity and Mortality Weekly Report, regarding the ongoing investigation by the CDC.

In December of 2003, NIOSH releases an alert to 4,000 businesses that might use or make butter flavoring suggesting and asking employers to caution workers regarding the hazards of diacetyl and the recommendations for worker safety.

In 2006, the International Brotherhood of Teamsters and the United Food and Commercial Workers petitioned OSHA to circulate an emergency temporary standard to protect workers of artificial butter flavor factory workers regarding the inhalation of diacetyl vapors. In 2009, OSHA investigated and in 2010 suggested that diacetyl used in artificial flavorings may be hazardous when heated and inhaled over a long period.

In June 2007, H.R. 2693 was introduced in the House regarding regulations upon manufacturers to protect workers from exposure to diacetyl. The bill was passed by the House on September 26, 2007. However, the bill was never passed by the Senate. See, http://www.govtrack.us/congress/bills/110/hr2693.

On September 4, 2007, the Flavor and Extract Manufacturers Association (FEMA) released a statement recommending the reduction of diacetyl in butter flavorings. The information was provided by the National Jewish Medical and Research Center, the National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control’s (CDC), the Food and Drug Administration (FDA), and the Environmental Protection Agency (EPA).

By 2007, Pop Weaver, Trail’s End, and ConAgra Foods (maker of Orville Redenbacher’s and Act II) had eliminated diacetyl from the flavorings.

What’s Next?

Microwave popcorn will always be America’s favorite snack food, even if Watson has been quoted to say that he will only be popping popcorn the old fashion way on the stove. Watson may be the first consumer to bring his case against a microwave popcorn manufacturer and win, but he may not be the last.

“From a coverage perspective, like asbestos, lead paint, and silica cases, Popcorn Lung cases involve potentially long triggers of coverage based on the exposure over several years and potentially involve many defendants and classes of insured risk.” See, http://www.agentsofamerica.org/pr_detail.php?id_art=863.

Watson’s case may be an additional catalyst to put pressure on Congress to pass legislation to protect workers from exposure to diacetyl.

In the limited research reviewed for this article, it was unfortunate to read that a worker who was employed by a microwave popcorn manufacturer for eight months between October 1994 and June 1995 and who had a diagnosed fixed airway obstruction was placed on a waiting list for a lung transplant in 1995. As of the date of the article in the New England Journal of Medical in 2002 (Vol. 347, No. 5), she still had not received a transplant. She may be one of many.

Has technology and convenience come at a price for some workers and placed consumers in harm’s way? Perhaps something to ponder the next time you find yourself munching on a bag of America’s favorite snack food.

RESOURCES:

Wayne Watson and Mary Watson, Plaintiffs vs. Dillon Companies, d/b/a King Soopers, also d/b/a, Inter-American Products, Inc., et al., Defendants, U. S. District Court, District of Colorado, Case No. 08-cv-00091-WDM-CBS, Complaint and Demand for Trial by Jury; Defendants’ Supplemental Brief on Fed.R.Evid. 702 to Exclude or Limit the Specific Causation Testimony of Cecila Rose, M.D.; Plaintiffs’ Brief in Opposition to Defendants’ Supplemental Brief for Rule 702 Hearing; Order on Motion for Summary Judgment and Motion to Exclude Testimony; and Final Judgment.

In re: Chemtura Corporation, et al., Debtors., U. S. Bankruptcy Court, Southern District of New York, Chapter 11, Case No. 09-11233, First Amended Verified Complaint For Declaratory Judgment and Injunctive Relief.  Chemtura stopped manufacturing diacetyl in 2005.

Centers for Disease Control’s (CDC) Morbidity and Mortality Weekly Report, April 26, 2002, Vol. 51, No. 16.

Centers for Disease Control’s (CDC), NIOSH Evaluates Worker Exposures at a Popcorn Plant in Missouri, Fact Sheet, July 2002.

Clinical Bronchiolitis Obliterans in Workers at a Microwave-Popcorn Plant, New England Journal of Medicine, 2002; 347:330-338, August 1, 2002, DOI: 10.1056/NEJMoa020300.

National Institute for Occupational Safety and Health (NIOSH), NIOSH Alert: Preventing Lung Disease in Workers Who Use or Make Flavorings, DHHS (NIOSH), Publication No. 2004-110.

Food and Drug Administration (FDA), Respiratory Health and Safety in the Flavoring Manufacturing Workplace, August, 2004.

National Institute for Occupational Safety and Health (NIOSH), NIOSH Health Hazard Evaluation Report, HETA 2000-0410-2991, Gilster-Mary Lee Corporation, Jasper, Missouri, January 2006.

Centers for Disease Control’s (CDC) Morbidity and Mortality Weekly Report, April 27, 2007, Vol. 56, No. 16.

Food and Drug Administration (FDA), Statement Supporting H.R. 2693, Legislation to Assure Workplace Safety in Flavor Manufacturing, June 13, 2007.

H. R. 2693, bill introduced June 13, 2007, by Rep. Lynn Woodsey(D-CA6).

Food and Drug Administration (FDA), Statement 9407, September 4, 2007.

Federal Register, Vol. 74, No. 12, Proposed Rules, January 21, 2009, Department of Labor, Occupational Safety and Health Administration, 29 CFR Part 1910 [Docket No. OSHA-2008-0046], RIN 1218-AC33, Occupational Exposure to Diacetyl and Food Flavorings Containing Diacetyl.

Occupational Safety & Health Administration (OSHA), Occupational Exposure to Flavoring Substances:  Health Effects and Hazard Control, Safety and Health Informational Bulletin, SHIB 10-14-2010.

Centers for Disease Control’s (CDC) Morbidity and Mortality Weekly Report, October 7, 2011, Vol. 60, Supplement, Pgs. 99-103.

Food and Drug Administration (FDA), Respiratory Health and Safety in the Flavoring Manufacturing Workplace — 2012 Update, April, 2012.

Article:  Colorado Man Wayne Watson Wins $7 Million in Popcorn Lung Lawsuit, by Jason Jaslow, http://www.cbsnews.com/8301-504763_162-57516710-10391704/colorado-man-wayne-watson-wins-$7-million-in-popcorn-lung-lawsuit/?tag=mncol;lst;3.

Article:  “Popcorn” Verdict Worth $7.27 Million, by Dennis Huspeni, http://www.bizjournals.com/denver/news/2012/09/19/popcorn-verdict-worth-727-million.html.

Article:  Can Microwave Popcorn Cause Lung Disease?, by Life’s Little Mysteries Staff, http://news.yahoo.com/microwave-popcorn-cause-lung-disease-131409840.html.

Article:  Diacetyl/Popcorn Workers Lung, http://www.defendingscience.org/case-studies/diacetyl-background.

Article:  Diacetyl, http://en.wikipedia.org/wiki/Diacetyl

Article:  Adding Insurance Coverage Flavor to the Recent Consumer-Popcorn Verdict, By Michael L. Zigelman, Esq., Eric B. Stern, Esq. and Kirsten Ennis, Esq. of Kaufman Dolowich Voluck & Gonzo LLP, http://www.agentsofamerica.org/pr_detail.php?id_art=863.

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How’s that for a full-on, popcorn lung education, TPSers? A special thanks to Barbara for sharing this article for us! We’ll have our eyes on future litigation that falls within the popcorn genre, as it continues to make its way through the legal system.  

We’d like to also take a brief moment to thank all of our regular readers for following The Paralegal Society since we launched a little more than a year ago. We’re now 100,000 hits strong, and have loved every minute of it! To every single person reading this post, participating in our “Social Club” on LinkedIn, reaching out to mingle, sharing an article, writing a guest feature or sharing commentary – we say a sincere and heartfelt thank you for being a part of The Paralegal Society. We hope you consider TPS to be your network and your blog, because that’s exactly what it is! We couldn’t do it without you…and wouldn’t want to.

Enough of our sappy, heartfelt gratitude…go save the esquires! We’ll see you next time!