Federal Jury Returns Verdict For Consumer Who Alleges Butter-Flavoring Lung Disease

Federal Jury Returns Verdict For Consumer Who Alleges Butter-Flavoring Lung Disease

DENVER - (Mealey's) A Colorado man who alleges that he developed the lung disease bronchiolitis obliterans from exposure to diacetyl in microwave popcorn flavoring was awarded $7.2 million Sept. 19 by a U.S. District Court for the District of Colorado jury (Wayne Watson, et uxor v. Dillon Companies Inc., et al., No. 08-91, D. Colo.).

(Completed verdict form available. Document #15-121002-011V. Plaintiff witness list available. Document #15-121002-009X. Defense witness list available. Document #15-121002-010X.)

Wayne Watson and his wife, Mary, sued The Kroger Co., Dillon Cos. Inc., King Soopers, Bush Boake Allen Inc. (BBA), International Flavors & Fragrances Inc. (IFF), Gilster-Mary Lee Corp., Givaudan Flavors Corp. and Birds Eye Food Inc. for manufacturing and retailing butter-flavored microwave popcorn.

Settlement

The plaintiffs voluntarily dismissed claims against Birds Eye on Sept. 3. Judge Walker D. Miller dismissed IFF and BBA with prejudice in June 2011 after a settlement with the Watsons was reached. Claims against Givaudan Flavors were dismissed in August 2009.

Wayne Watson contends that as a result of exposure to diacetyl fumes from butter flavorings in microwave popcorn, he developed a permanent and progressive lung injury, including bronchiolitis obliterans. Wayne Watson says he regularly popped and ate two or three packages of microwave popcorn daily from 2001 to 2007.

The case was assigned to Judge Wiley Y. Daniel for trial.

The jury heard evidence in support of claims for negligence, strict liability - design defect and failure to warn and loss of consortium. The Watsons sought compensatory and punitive damages plus fees and costs.

The jury concluded that the plaintiffs did not prove the strict liability claim against Dillon but did prove the negligence, failure to warn and deceptive trade practices claim against Dillon.

The jury also concluded that the plaintiffs proved the negligence, failure to warn and deceptive trade practices claims against Kroger but did not prove the strict liability claim against Kroger.

Verdict

The jury found that the plaintiffs proved the negligence, failure to warn and deceptive trade practices claims against Gilster-Mary Lee but did not prove the strict liability claim against Gilster-Mary Lee. It also found that Wayne Watson was not negligent or did not contribute to his injury.

The jury awarded $667,961 in damages for economic losses including for physical impairment, $1 million for noneconomic injuries and $450,000 in damages for his physical impairment. The jury awarded $100,000 in compensatory damages for the loss of consortium claim.

The jury assigned 5 percent of the compensatory damages to Dillon, 15 percent to Kroger and 80 percent to Gilster-Mary Lee.

The jury awarded $5 million in exemplary damages against Gilster-Mary Lee, the manufacturer of the microwave popcorn.

The jury was selected Sept. 4, and opening arguments were delivered Sept. 5.

The plaintiffs concluded their presentation of evidence on Sept. 13. Among the experts who testified for the plaintiffs were internist David Steven Egilman, M.D., of Attleboro, Mass.; internist Allen Jeffrey Parmet, M.D., of Kansas City, Mo.; rehabilitation expert James M. Gracey, Ed.D., of Aurora, Colo.; and pulmonologist Cecile S. Rose, M.D., of Denver.

Defense Experts

The experts who testified for the defendants were toxicologist Kenneth Kulig, M.D., of Denver; industrial hygienist John Martyny, Ph.D., of Denver; business consultant Gary Marshall Richetto, Ph.D., of Tulsa, Okla.; Gilster-Mary Lee representative Kathy Jordan of Chester, Ill.; and toxicologist Earl Nestmann, Ph.D., of Bridgewater, N.J.

The defendants concluded their case on Sept. 14.

The jury charge was read and final arguments were delivered to the jury Sept. 17. The jury began deliberating at 9 a.m. Sept. 17. The jury informed the court that it had reached a verdict at 11:35 a.m. Sept. 19.

Kenneth B. McClain, Andrew K. Smith, Scott A. Britton-Mehlisch and Steven E. Crick of Humphrey, Farrington & McClain in Independence, Mo., represent the plaintiffs.

Brett Marshall Godfrey and Paul Joseph Rupprecht of Godfrey & Lapuyade in Englewood, Colo., and Jason D. Melichar and Suzanne Marie Meintzer of Wilson, Elser, Moskowitz, Edelman & Dicker in Denver represent Dillon, Kroger and Glister-Mary Lee.

LaDonna L. Boeckman, Daniel K. Cray and Scott D. Pfeiffer of Cray Huber in Chicago represent Birds Eye.

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