Consumer Popcorn Lung Lawsuit to Proceed to Trial This Month

A federal judge has cleared the way for a “popcorn lung” lawsuit to proceed to trial, involving a claim brought by a Michigan man who alleges he developed the debilitating lung ailment after eating multiple bags of microwave popcorn daily for years.  

Trial is set to begin on August 11, in the U.S. District Court for the Northern District of Iowa involving a complaint filed by David Stults and his wife, Barbara, against International Flavors and Fragrances, Inc., and Bush Boake Allen, Inc.

U.S. District Judge Mark Brennett issued an order (PDF) on July 11, denying a motion for summary judgment brought by the defendants, which will allow the case to move forward to trial later this month.

Popcorn lung is the common term used to describe the respiratory disorder bronchiolitis obliterans, which involves scarring and inflammation of small airways, known as bronchioles, leading to diminished lung capacity and breathing problems.

The disease obtained its name because it is caused by exposure to the food additive diacetyl, which was used for years to give microwave it’s buttery smell. There is no known cure for brochiolitis obliterans, and severe case may result in the need for lung transplants or death.

While most popcorn lung lawsuits have been filed on behalf of factory workers who were exposed to large quantities of diacetyl during the manufacture of microwave popcorn or flavoring chemicals, Stults alleges that he developed the condition as a consumer, after eating several bags of microwave popcorn daily for several years.

The case was originally dismissed on December 2013, after Judge Brennett determined that statute of limitations laws in Michigan prevented the filing of breach of warranty and negligence charges, and that Michigan law forbade the plaintiffs’ strict liability theory of recovery. The case was reinstated after the plaintiffs asked him to reconsider.

Although the defendants attempted to have the case dismissed again, Judge Brennett ruled last month that claims involving failure to warn, defective design and breach of implied warranty claims can move forward after reconsideration of the case.

According to allegations raised by the Michigan couple, David Stults was a heavy microwave popcorn eater from 1991 to 2009, when he was diagnosed with popcorn lung disease. The couple filed the lawsuit in 2011, but the judge pointed out in his decision (PDF) that the defendants, Bush Boake Allen, Inc. and International Flavors a& Fragrances, had not used the flavoring since 2005.

Stults maintains that had he seen a label warning that diacetyl caused a non-curable respiratory disease, he would not have eaten the popcorn in the amounts that he did.

“I would like to think that had there been a warning or if there had been some public notice that butter-flavored microwave popcorn could create these kind of disastrous effects in the consumer market as it did in the workers’ market, I would have liked to have known that,” Stults said in his deposition. “So in my opinion, had there been some kind of warning on the bag that the fumes of this has been known to cause a non-recoverable disease, I think I would have been much more sensitive to not breathing in the fumes which is where this all came from to begin with.”