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September 2012

Colorado Man Recovers $7.2 Million in Consumer "Popcorn Lung" Case

One man’s case of "popcorn lung" may have legal implications for manufacturers and distributers of products containing the flavoring diacetyl. After a day of deliberation following a nine day trial, a federal jury in Colorado has issued a $7.2 million verdict in favor of Wayne Watson, a Denver native who alleged he developed bronchiolitis obliterans as a result of microwave popcorn consumption.

Bronchiolitis obliterans is an irreversible form of obstructive lung disease that makes it difficult for air to flow out of the lungs. It is alleged to be caused by inhalation of diacetyl, a flavoring that mimics the taste of butter. Previously, it was believed that only flavoring workers exposed to diacetyl were potentially at risk of developing bronchiolitis obliterans. A number of cases have been brought by workers over the past fifteen years.

Watson's attorney, Kenneth McClain, claims that Watson is the first consumer to be diagnosed with the disease. Watson consumed two bags of popcorn daily for ten years.

Watson brought the suit on theories of negligence, strict liability for design defect, failure to warn, and violation of the Colorado Uniform Deceptive Trade Practices Act.

Defense attorneys argued that Watson's health problems stemmed from exposure to carpet-cleaning chemicals. However, jurors agreed with Watson's claims that the popcorn manufacturer and the supermarket chain that sold it were negligent by failing to include a warning on their labels that diacetyl was dangerous. Jurors found the manufacturer of the popcorn, Gilster-Mary Lee Corp, liable for 80 percent of the $7,217,961 damages and the King Soopers supermarket chain where Watson purchased the popcorn, along with its parent company, Kroger Co, liable for 20 percent.

A number of third-party defendants were brought into the case for supplying defendants with diacetyl, including Advanced Biotech, Berje Inc., Citrus & Allied Essences LTD., O’Laughlin Industries Co., Phoenix Aromas & Essential Oils, and Polarome International. The claims against the third-party defendants were ultimately dismissed.

Defendants intend to appeal the decision. Gilster-Mary Lee released the following statement stressing the safety of its products: "Gilster-Mary Lee Corp. has manufactured and provided safe, quality microwave popcorn to consumers for over two decades. We are certainly very disappointed by the decision of the jury in this case in light of the very clear evidence which was presented, including the millions of consumers who have safely used and enjoyed microwave popcorn since it was introduced. We are currently evaluating our next steps in this matter and will assert all rights available to us under the law."

The suit is considered a test case for a wave of other suits likely to be brought. Similar cases already have been filed in Iowa and New York.

Environmental/Toxic Tort

Jason F. Meyer

Environmental/Toxic Tort