Popcorn Lung is Popping (Up) Again

As we posted last week, there’s a new “popcorn lung” case on the block.  Plaintiffs’ attorneys everywhere must be licking their chops (and fingers) with news of the $7.2 million verdict in that fateful Colorado case.  While popcorn lung cases are certainly not new, this one is somewhat different. So, we figured it deserved more in depth treatment.  Typically, popcorn lung cases involve occupational exposure of employees who worked in a plant where a particular chemical was used as an ingredient in butter flavoring.  This new case involves a Plaintiff who just REALLY liked popcorn.  He brought suit claiming that eating popcorn injured him, and a jury paid him handily.

Popcorn lung is the term coined to refer to a relatively rare lung disease called bronchiolitis obliterans, which is somewhat similar to asbestosis.  One purported cause of bronchiolitis obliterans is the chemical diacetyl.  Diacetyl was used for many years as ingredient in artificial butter flavoring like the kind used on microwave popcorn.  The chemical was the subject of a number of lawsuits and multi-million-dollar verdicts in 2004 and 2005 arising from factory workers testing and inhaling the fumes from hundreds of bags of microwave popcorn a day.  At least some popcorn makers removed the chemical back in 2007

So how did this particular Plaintiff, who never worked around diacetyl, get popcorn lung?  By eating popcorn.   A LOT OF POPCORN.  This Plaintiff claims to have eaten two bags of popcorn everyday for 10 years.  He brought suit in 2008 against Glister-Mary Lee and Kroger, among others, claiming that by cooking and eating popcorn he developed bronchiolitis obliterans.  While eating two bags a day for 10 years may seem like a stretch, hospital workers apparently performed chemical testing in his kitchen and found levels of diacetyl similar to factory conditions (between .5 and 3 parts per million).  The Plaintiff’s attorneys argued that the defendants should have warned customers that inhaling the buttery aroma could put them at risk of lung damage.  A jury agreed with these claims and gave him $2.3 million for his reduced lung capacity and other damages.  They threw a $5 million in punitive just for good measure.

The question: will we see more such cases in the future or is this a one time fluke for a popcorn junkie?

The “Popcorn Lung” Case: A Lesson in Marketing to the Jury

There has been a $7 million verdict in Wayne Watson v. Dillon Companies, Inc. et al., in Colorado. Watson is a products liability case, and the basic allegation is that microwaveable popcorn gave the Plaintiff lung disease. Hence, the “Popcorn Lung” case, as these cases are being called. When I first heard of this type of litigation, my first thought was that this was yet another case mocking the integrity of the American judicial system, and I was frankly surprised that a federal judge had allowed this abomination to survive summary judgment. After all, the thought that microwaveable popcorn—of all things—could cause lung disease strikes me as utterly preposterous.

But after some investigation, I’ve been forced to temper my initial judgment.

Don’t get me wrong. I’m not saying I’m buying what the plaintiff is selling, even though the jury apparently did. I’m just saying I don’t think it’s as implausible as I first believed. Here’s why.

The theory of the case was not that microwaveable popcorn per se causes lung disease. It’s that a particular chemical that was commonly used to give microwaveable popcorn its buttery taste—diacetyl—can cause lung disease. And this argument is not new. In the early 2000s, there were a series of cases brought by folks who worked in commercial popcorn production facilities who made the same claim; that because of their long-term exposure to significant amounts of diacetyl in the air, they developed certain forms of lung disease. So ostensibly, there may be some science to back up the claims in those cases, which may be applicable to the Watson case.

Let’s assume – just for the sake of this post, mind you – that the research in the commercial popcorn workers’ cases is somehow founded. We’ve not reviewed all that literature, nor have we looked into the expert reports in the Watson case. But bear with us. Even if that research is founded, there seems to be a leap of faith that must be taken to get from those cases to Watson’s. Watson wasn’t a commercial popcorn worker. However, his claim is that during the corn-popping process, diacetyl is vaporized into aerosol form, and like the commercial popcorn workers, he inhaled the diacetyl which is now claimed to have caused his lung disease. We would expect Watson’s dose to be significantly less than the doses presumably inhaled by commercial popcorn workers—even though Watson claims to have eaten 2 to 3 bags of microwaveable popcorn every day for several years. The critical scientific question, then, is where does a person’s exposure to diacetyl cross the line into the danger zone?

I don’t think the importance of this question can be overstated. After all, I’ve eaten microwaveable popcorn. You’ve eaten microwaveable popcorn. And probably every member of that jury has eaten microwaveable popcorn (although after the trial, we suspect that the jurors who found the defendants liable may be cutting down on their microwavable popcorn intake). Yet, somehow, the icy hand of Orville Redenbacher reached out from beyond the grave and struck Watson down with popcorn-induced lung disease? That seems hard to believe. To win this case, plaintiff’s counsel needed to enable the jury to overcome their natural suspicion towards these claims, and the science is going to have to be pretty darn good.  Apparently, it worked.

But there’s a marketing point here to be made. “Popcorn Lung” sounds ridiculous. The name trivializes the purported issues and conjures up the same ghosts that haunt the “McDonald’s Coffee” case. To many an average person, this verdict will represent everything that is wrong with the American judicial system. The proposition that microwaveable popcorn—a staple of each American household and every family movie night—is associated with lung disease will be difficult for many readers to overcome.  The jury somehow overcame that skepticism. If I’m plaintiff’s counsel, the enemy here should be diacetyl, if the science truly supports that theory. Sure, it was applied to microwaveable popcorn. But that product is safe. Perhaps that explains it.

Lawsuit Looms in Wake of Colorado Theater Shootings

Does a business establishment, such as a restaurant, shop, or theater, owe patrons a duty of care to protect them against psychopaths with body armor and semi-automatic weapons?  According to the families of some the Aurora, Colorado movie theater shooting victims, the answer is “yes.”  Families of the victims are threatening a lawsuit against the owner of the Aurora, Colorado movie theater where the shootings took place.

The law firm of Napoli, Bern, Ripka, and Scholonik claims that Cinemark, the company that owns the Aurora movie theater, is liable for the tragedy and should compensate the victims and their families for their loss.  One of the firm’s attorneys, Marc Bern, told CBS News, “We have the experience and the contacts to hopefully end this litigation quickly. The victims here are some of the worst types of injuries that I have seen in over 37 years of practice.  I believe that the primary responsibility at this point rests with Cinemark.”  Apparently, their theory is that Cinemark should have had the additional security necessary to prevent the shootings.

It is interesting that Mr. Bern chose to say the “primary responsibility” for the shooting lies with Cinemark.  I would have probably placed the primary responsibility on the guy with the gun who was actually doing the shooting.

I feel a lot of compassion for the victims and the families of the victims of this heinous crime.  I really do; no one can imagine that fear and anguish that they experienced that terrible night and very likely continue to suffer.  However, I just do not see how the movie theater has any responsibility to pay for the actions this psychopathic killer.   Of course, a theater owes a duty to its patrons to keep them safe within reason.   But the shooter bought a ticket, left the theatre through an emergency exit and propped it open, donned a full suit of body armor, returned into the theatre, and then opened fire with a military grade semi-automatic weapon.   Was it reasonable to expect a movie theater to be prepared to protect patrons against the actions of an unexpected intruder in body armor with a semi-automatic weapon?  As recent events have show, even the military struggles to protect their own under similar circumstances.

If this case makes it to court, it has the potential of setting a dangerous precedent for the duty that business owners owe to patrons.  It could now be up to the business owners to anticipate nearly any crimes committed on their premises and be prepared to take steps to keep them from happening.  This is a very expensive proposition. It would, of course, ultimately lead to increased security costs and insurance premiums.  These costs will undoubtedly be passed on to the consumer.

Ultimately, this suit would likely fail, as courts have generally recognized that crime fighting is an inherently governmental function.  Courts usually will not impose a duty to protect upon a business unless there have been similar prior incidents or the incident was foreseeable under the totality of the circumstances.


Ski Instructor Not Qualified to Testify About Ski Design

Colorado’s Stanley Gale is a lot of things.  A skier with a Level I Alpine certification.  An alumnus of the Alpine Ski Patrol.  An expert qualified in the areas of ski safety and accident reconstruction.  However, in Squires v. Goodwin, No. 10-cv-00309, 2011 WL 5331583 (D. Col. Nov. 7, 2011), a Colorado federal court held that he wasn’t qualified to testify as to the design, manufacture, or risk associated with bi-ski adaptive skiing equipment.  Preposterous, you say?  How can a man with 38-years of experience as a ski patrol officer not qualify him as an expert you ask?  Certainly, the court must be in error.

In Squires, the case arose out of a 2008 ski accident at the Breckenridge Ski Resort in Colorado.  The plaintiff, a 17-year old girl with cerebral palsy and legal blindness, was injured when her ski instructor lost control of the tethers connected to a bi-ski manufactured by Mountain Man, Inc.  After the instructor lost control of the tethers, the plaintiff continued down a ski slope in the bi-ski until it collided with a tree.  The plaintiff filed suit against the instructor and the Breckenridge Outdoor Eduction Center.  Thereafter, she amended her complaint, adding claims for strict products liability, breach of implied warranty of fitness, common law negligence, and breach of express warranty against Mountain Man.  The plaintiff retained Gale as an expert to testify regarding the inherent danger presented with the design of the bi-ski.

Mountain Man moved to strike the opinions of Gale on the grounds that they failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence or the standards outlined in Daubert.  According to the plaintiff, Gale was qualified to testify about the alleged deficiencies in the bi-ski because he has “extensive knowledge and experience with ski patrol equipment and mountain terrain safety.”  Further, the plaintiff argued Gale’s opinions were based on “sound principles.”  However, these “sound principles” were never articulated.

The Court conceded that Gale may be qualified to testify as an expert in certain fields – but not in the areas of product design, manufacture, and product warnings.  Gale has never been employed by a ski equipment manufacturer and has no formal training in the field.  While experts are granted wide latitude to offer opinions, the Court indicated that these opinions must have some reliable basis.  Despite the apparent lack of ski product design experience, Gale opined that the bi-ski was “inherently unsafe and not designed for powerful forces” because “all of the plastic buckles on the bi-ski seat broke.”  Gale identified no formal methodology as a basis for his opinions.

Gale’s opinions did not cease with his “broken buckle” logic.  He also proposed an alternative design for the bi-ski involving “some sort of braking device which could be controlled by the person strapped to the bi-ski.”  While Gale’s hypothesis sounds intriguing, he offered no specifications for the design, demonstrations of its feasibility, or explanations of how it would be employed by a person with physical impairments.  The Court described his opinions on the alternative design as a “subjective belief that unknown individuals with actual qualifications could ‘come up with something.'”  Apparently, these opinions are not the reliability envisioned by Rule 702.

Knowing the significance of expert testimony in products litigation, we must question the plaintiff’s choice of Gale.  Sure, he is an experienced ski instructor, but couldn’t the plaintiff find someone more linked-in to ski design and manufacture?  Maybe the plaintiff prepped for the Daubert hearing by reviewing the qualification of Mona Lisa Vito (Marisa Tomei) in My Cousin Vinny.  If Vito is qualified to testify in general automotive knowledge because she comes from a family of mechanics, Gale’s skiing experience should qualify him to talk about the design and manufacture of skis right?  After all, with 38 years of experience on the slopes, Gale has seen a lot of skis.  Unfortunately for the plaintiff, the Court was not as impressed as Jim Trotter (Lane Smith) and Judge Chamberlain Haller (Fred Gwynne).

Fortunately for Mountain Man, the Court got this one right.  Gale was not qualified as an expert in product design and the Court granted Mountain Man’s motion for summary judgment as a result.  As for Gale, well he won’t be able to add “ski equipment expert” to his CV.  Maybe he can spend his time away from the trial, designing that braking device.

Beware Jury Instructions (or At Least, Pay Attention to Them)

I have a really long list of really important things that no one taught me in law school. One lesson that always finds itself at or near the top is this: PAY ATTENTION TO JURY INSTRUCTIONS. The smallest error or inconsistency can provide the basis for an appeal, or in some cases an entirely new trial. Never mind whether the jury actually listens to them or not.

Jury instructions served as the basis for appeal in Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir. 2010) (PDF). This suit arose out of an accident involving a city park ranger, who was thrown from a boat after the boat’s steering cable snapped and sustained a permanent injury to her ankle. She sued the manufacturer of the steering cable, alleging that it was defectively designed and unreasonably dangerous. During discovery, the parties determined and agreed that the reason the cable snapped was because water had somehow entered the core of the cable and caused it to rust. The parties could not agree on how the water got there. The plaintiff alleged that the cable was defectively designed and that a simple fix to the design could have prevented the water from entering into the cable’s core. Teleflex, however, provided evidence at trial that the cable was improperly installed, and had not undergone routine maintenance.

The jury entered a verdict for Teleflex, and the plaintiff appealed, taking issue with two aspects of the jury charges. First, as the Court points out:

Colorado law provides two different tests. Under the “consumer expectation” test, the jury is instructed to find defectiveness if the plaintiff proves that a product is dangerous “to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” Under the “risk-benefit” test, the jury is instructed to conclude that a product is unreasonably dangerous if the plaintiff proves that the risks of a challenged design outweigh its benefits. Appellants submitted instructions proposing that the district court instruct the jury under both tests, but the district court gave only the risk-benefit instruction.

The second dispute focused on Colorado Revised Statute 13-21-403(2), which creates a presumption that a product is not defective once it has been on the market for ten years. Over the plaintiff’s objection that the statute was procedural, not substantive, the Court instructed the jury on the statute.

The Tenth Circuit affirmed the verdict for Teleflex. First, it held that there was no error by the trial court in providing only the “risk-benefit” test to the jury because the case involved primarily technical and scientific information, rejecting the plaintiff’s argument that the jury should also have been instructed on the consumer expectation test because “rust is not rocket science.”

Second, the Court held that the trial court did not err by instructing the jury about the statutory presumption, because the presumption was substantive, rather than procedural, state law.

Although the plaintiff ultimately failed to persuade the Tenth Circuit to reverse the trial court, she successfully convinced the appellate court to consider her arguments, solely on the basis of jury instructions. It’s a good lesson to learn and, as I pointed out, not one you’ll necessarily learn sitting in the typical law school class.

What is "Products Liability," Anyway?

This is the question that the Colorado Court of Appeals tried to answer in its recent decision, Carter v. Brighton Ford, Inc., No. 09CA1966, 2010 WL 4361379 (Colo. Ct. App. September 30, 2010). The plaintiff had bought what the Court described as a “high performance automobile” — a Ford Mustang — which contained components manufactured by Saleen, Inc., a company that had a joint manufacturing agreement with Ford. Immediately after buying this fine vehicle, the plaintiff purportedly experienced numerous problems with it.
While we recognize that Ford has come a long way in recent years, there is great debate amongst the contributors here at Abnormal Use. Is the Mustang a “high performance automobile,” as the Court suggests? But, we digress. Judge for yourself:

The plaintiff sued Ford for breach of implied warranty of merchantability and revocation of acceptance under the Colorado Uniform Commercial Code, sections 4-2-314 and 4-2-608, C.R.S. 2010, respectively, as well as claims against Ford and Saleen for violation of the Colorado Lemon Law, revocation, and breach of express and implied warranties. Ford was dismissed after the mechanical defects in the vehicle were determined to be attributable to modifications performed by Saleen. Saleen subsequently ceased operations, which defeated the plaintiff’s claims against Saleen for express warranty on Saleen components. Only the plaintiff’s claims against Ford for revocation and breach of implied warranty remained.
Ford moved for summary judgment, arguing that the plaintiff’s claims were product liability claims and therefore barred by the “innocent seller” statute. The trial court agreed and dismissed his remaining claims. The plaintiff appealed.

The Court of Appeals framed the issue before it as follows:

We are called upon to decide whether the trial court erred in ruling that a product liability action may be based upon a claim for breach of an implied warranty of merchantability and a claim for revocation of acceptance where the product was defective and the only damage suffered by the buyer was the economic loss of the product itself.

After analyzing the Colorado “innocent seller” statute, which bars a product liability suit against a seller unless the the seller is also the manufacturer. The statute does not prevent “other actions” against sellers. The trial court had held that the action against Ford was indeed a products liability action, since causes of action for breach of warranty are based on products liability law.
The court of appeals reversed, holding that “contract claims which seek only economic loss for a defective product without collateral damage or risk of harm to others do not constitute product liability actions.”
The value of the court’s decision itself, in my opinion, is not the decision itself, but the history of products liability law that the court recites in coming to its decision. The court does an excellent job of tracking the development of products liability through the strange marriage of contract and tort law. The court also gives concise summaries of the economic loss rule and the innocent seller doctrines, which several other jurisdictions follow as well. As a result, this decision is worth a read.

Wii Class Action Strikes Out: Hang on to Your Controller

I used to think the story was an urban myth. I’ve heard accounts of people who became so wrapped up in a spirited game of Nintendo Wii baseball or bowling that they let go of the controller, only to watch in horror as the strap around their wrist broke and the controller sailed across the living room and hit grandma, or, more likely, smashed their 62-inch high-def, plasma television:

Apparently not. In fact, there are so many people who have had this happen that some smart plaintiff’s lawyer filed a putative class action for them, perhaps hoping to get new $2,000 TVs for everyone. Or at least new $1.99 wrist straps.

Well, as Lee Corso would say, “Not so fast, my friend.”

On September 23, 2010, the U.S. District Court for the District of Colorado granted summary judgment for Nintendo in Elvig, et al. v. Nintendo of America, Inc., No. 08-CV-02616, 2010 WL 3803814 (D. Colo. Sept. 23, 2010) [PDF] on the class’ claims under the Colorado Consumer Protection Act, as well as theories of breach of implied warranty of merchantability and fitness for a particular purpose. (Hat tip: The Mass Tort Defense Blog)

We believe that Mass Tort Defense has it wrong, however, on the Court’s take on the implied warranty of merchantability claim:

On the implied warranty of merchantability, the court cited the lack of evidence that would indicate what the intended purpose of the strap was. One might plausibly assume, as plaintiff did, that the strap was intended to prevent a controller, inadvertently released by the player during vigorous activity, from hurling towards the player’s television (or towards another player) and causing damage. But equally, one might assume that the strap was simply intended to keep an inadvertently released controller in the vicinity of the player so that it could be easily retrieved and was was never intended to withstand the forces of high-speed controller release.

Honestly, we really hate siding with plaintiffs, especially when they’re running around filing lawsuits based on their own lack of common sense (“If I release this controller in the process of it swinging toward my TV . . . .). But to surmise that the wrist strap is designed to do anything but keep the controller strapped to your wrist is a bit of a stretch.

Still, we like the decision, because it reaffirms our sense of fair play. People who voluntarily join sports teams and leagues can’t complain when they are injured in the normal course of the game or match–indeed, as active members of our own city’s softball law league, we have seen more than our fair share of injuries. The same rule should be applied to full contact video games.

One final note: apparently, at least one TV manufacturer has now designed its television screens to withstand the force of a flying Wii controller. Take a look.

Colorado’s reasonable approach to distributor liability

One of the more interesting problems in products law is how to handle the middle man. If the retailer does not design or manufacture a product, but merely stocks its shelves, can he be liable to a plaintiff who is injured by the product? Different states handle the question differently.

In Colorado, unless the retailer is also the manufacturer of the allegedly defective product or a component of the product, it can’t be sued. In fact, a product liability suit cannot be maintained against a mere innocent seller of a defective product. Which begs at the obvious follow-up question: what makes a seller “innocent?”
The United States District Court for the District of Colorado was faced with just that question in the recently decided Zapien v. Home Depot, USA, Inc., No. 09-cv-02349-REB-BNB, 2010 WL 3522570 (D. Colo. Sept. 2, 2010). Home Depot rented a sewer snake to the plaintiff, who suffered injuries when it gave him a serious electrical shock. Home Depot filed a motion for summary judgment, claiming that it is an “innocent seller” under the terms of the Colorado products statute.
The “innocent seller” doctrine in Colorado, however, has a few exceptions. First, if the seller knows the product is defective, it is no longer an “innocent.” Second, if the seller alters the product, it is no longer insulated from liability (obviously, because it is no longer just a seller).
There was some tangential evidence in Zapien, based on some comments from a cashier at Home Depot, that the retailer knew that the sewer snake was defective, but the evidence was not allowed on appeal. As a result, Home Depot’s motion for summary judgment was granted.
If you didn’t build it, alter it, or know about it, you shouldn’t be held hostage by a plaintiff who, for whatever reason, can’t pin liability on those who may actually have been responsible for the defect. But if you, as a retailer, alter the product or know something about any problems it has, then it is reasonable that you should be at least partly responsible for any injuries stemming from the product. I acknowledge that “knowledge” is a slippery term that can be stretched, but the general theory is workable. Other states should take note and bring predictability back to retailer liability.

Minimum Contacts for Maximum Recovery

Rather than describing the due process limitation on a state’s exercise of personal jurisdiction, “minimum contacts” may more accurately describe the interpersonal relationships of some of us at Abnormal Use. While relationships and the due process limits on personal jurisdiction may both be equally obtuse, only one can support a blog post. Alas, perhaps we can make some headway with personal jurisdiction.

The Colorado Court of Appeals recently found minimum contacts supporting personal jurisdiction in Etchieson v. Central Purchasing, LLC, No. 09-CA-0218, 2010 WL 1491642 (Colo. Ct. App. Apr. 15, 2010) [PDF]. Etchieson was injured when an electric meter exploded. As happens now in our globalized society, the defective product was manufactured outside of the United States by a Chinese company (“Precision”) with “no offices, employees, or facilities in the United States.” Id. The electric meter was purchased and sold among several companies before reaching the hands of the Plaintiff. Without going through a painful recitation of the facts, perhaps it is sufficient to say that Precision purposefully sold its product in the United States, but Precision did not “aim any advertising exclusively at Colorado and no Precision personnel ever visited Colorado.” Id. The trial court found these contacts insufficient to support exercise of the long-arm statute, but the Court of Appeals reversed.

The Colorado Court of Appeals discussed specific jurisdiction and Supreme Court precedent involving foreign corporations. At the risk of oversimplifying, the court of appeals reasoned that Precision purposefully manufactured its product for the United States market, and, because of that general availing of the broader market, Precision availed itself of the Colorado market. Moreover, specific jurisdiction was reasonable because “in the context of product liability, the limits on personal jurisdiction have been relaxed as trade has . . . globalized . . . and as modern transportation and communication have eased the burden of defending oneself in a distant state . . . .” Id. Therefore, personal jurisdiction is proper.

So what? How is this Plaintiff going to effectuate any judgment that he gets against a foreign company with no domestic assets? It seems a lot of this is driven by Colorado’s apportionment of liability statute, which does not permit recovery against any one tortfeasor in excess of the jury’s finding of liability. Moreover, a jury could consider the liability of any nonparty in the proceeding in its assessment of liability.