Smells Like Lung Disease

Fate, it seems, is not without a sense of irony. In his bid to quit smoking and improve his health, Larry Newkirk began eating microwave popcorn to suppress his appetite. What Mr. Newkirk could not have known, while on his course to eating five to seven bags of microwave popcorn each day for eleven years, was that the delectable treat (allegedly) caused his severe lung disease, bronchiolitis obliterans. We reported earlier on a recently filed case involving allegations that Diacetyl‘s “characteristic buttery odor” smelled more like lung disease than popcorn flavoring, but the Eastern District of Washington in Newkirk v. Conagra Foods, Inc., No. CV-08-273, 2010 WL 2680184 (E.D. Wash. July 2, 2010) has had a chance to examine the issue. It issued some Defendant-friendly rulings on a few motions on Daubert as well as summary judgment.

A large part of the opinion focuses on the expert testimony of Dr. David Egilman, the plaintiff’s expert, who is board certified in Occupational and Internal Medicine. Holding degrees from Brown and Harvard, Dr. Egilman is certainly no intellectual lightweight. Mr. Newkirk put forth Dr. Egilman to establish general causation and specific causation. The court excluded Dr. Egilman’s testimony and ultimately granted summary judgment.

Unfortunately for Mr. Newkirk, there was no scientific foundation for Dr. Egilman’s opinions, and, neither does it appear that there will be any scientific foundation, because “manufacturers of microwave popcorn stopped using diacetyl in or around 2007.” Previously, there had been some research on the employees in microwave popcorn plant, and that research tracked the employees according to their particular job function. In addition, there was an EPA study released in 2007 studying the chemicals released when a bag of microwave popcorn is opened. But the “scientific community has yet to determine a safe level of diacetyl exposure.” Dr. Egilman made leaps in logic, equating the diacetyl exposure of a manufacturing worker (those who worked around the large vats of flavoring tantalizingly called slurry) to the purported exposure of a consumer opening a bag of popcorn in the home.
However, there is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical.

Newkirk at *9. The court pointed out this “analytical gap,” even to the point of quoting from Dr. Egilman’s affidavit and expert report (several times), followed by the explanatory parenthetical “citing nothing.” I might try that in my next response brief if I ever need to quote the plaintiff: “[Ridiculous point of law asserted by plaintiff.] (citing nothing).”

Unlike some plaintiffs, Mr. Newkirk has an actual injury. Unfortunately for him, there is no science supporting his allegation of the causation of his injury. We applaud the District Court for demanding science, and, seeing none, dismissing this case.

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