Expert Witness Appeals Microwave Popcorn Lung Lawsuit Dismissal

An expert witness who was excluded from a “popcorn lung” lawsuit has decided to appeal the federal judge’s decision, which ultimately led to the dismissal of a case filed by a consumer that was scheduled to go to trial last month.

In what is considered a rare legal action, Dr. David Egilman, a professor at Brown University, is appealing a determination by U.S. District Judge Rosanna Malouf Peterson that his findings that people can contract a rare lung disease known as bronchiolitis obliterans from eating too much microwave popcorn were not based in sound science. Egilman was retained as an expert witness in a lawsuit filed by Larry Newkirk, who claims to have developed the lung ailment after eating five to seven bags of popcorn a day for 11 years. Newkirk is also appealing the decision.

Bronchiolitis obliterans is more commonly known as “popcorn lung” because of its association with popcorn factory workers who developed the ailment after long-term exposure to a chemical known as diacetyl. The chemical was used to give microwave popcorn its buttery smell, but is no longer in use due to its links to the lung ailment.

Popcorn lung is characterized by the scarring and inflammation of small airways, known as bronchioles, which leads to diminished lung capacity and breathing problems. The disease is irreversible and severe cases require lung transplants and can lead to death.

The lawsuit by Newkirk was first filed in 2008, and accused Conagra of negligence, strict liability and failure to warn. At the time, he was only the second consumer in the U.S. to be diagnosed with popcorn lung caused by inhaling the aroma of microwave popcorn.

U.S. District Judge Rosanna Peterson deemed Newkirk’s expert witness testimony to be inadmissible, leaving the plaintiff without necessary testimony to prove causation. Judge Peterson said that Dr. Egilman, the key expert for proving that diacetyl caused Newkirk’s injuries, lacked facts and scientific data, and said that he used flawed scientific methodology.

There have been several successful lawsuits over popcorn lung brought on behalf of individuals who developed bronchiolitis obliterans after working in factories where the popcorn butter flavoring was manufacturered or used.

Last March, a jury awarded $7.5 million to Ronald Kuiper, a popcorn worker in Iowa, and his wife, who sued Givaudan Flavors Corp. and three other companies who made popcorn flavoring for the American Pop Corn Co. Kuiper died of popcorn lung a day before the jury returned the verdict.

Earlier this month, a popcorn lung lawsuit filed by a worker at a chemical plant that made the butter flavoring resulted in a $30.4 million verdict against BASF Corp.

More than 300 bronchiolitis obliterans lawsuits have been filed nationwide, with most of those coming from employees of popcorn manufacturers. However, a growing number of popcorn consumers have been diagnosed with the disease and have filed lawsuits against companies that manufactured or used the flavoring.