Expert Testimony Excluded as Unreliable; Consumer’s Popcorn Lung Claims Dismissed
A federal court in Washington has dismissed the lawsuit filed by a man who alleged that inhaling the diacetyl in fumes from four to six bags of microwave popcorn daily caused his lung disease. Newkirk v. ConAgra Foods, Inc., No. 08-273 (E.D. Wash., decided July 2, 2010). Additional information about this litigation appears in issue 274 of this Update.
Represented by the Independence, Missouri, attorney who has brought claims on behalf of popcorn factory workers and other consumers, Larry Newkirk sought to introduce the general causation opinion of physician David Egilman and the specific causation opinions of Dr. Charles Pue, Dr. Allan Parmet and William Ewing. The court analyzed Egilman’s proposed testimony and found it unreliable on a number of grounds, including that he sought to extrapolate residential diacetyl exposures from industrial exposures, which have been extensively studied and associated with bronchilitis obliterans, a debilitating lung disease also referred to as “popcorn lung.” According to the court, the witness had no basis for making this extrapolation.
Because the proffered specific causation witnesses relied on Egilman’s opinion, the court ruled that their testimony was also unreliable and must be excluded. Lacking any evidence of causation, the plaintiffs’ claims for negligence, design defect, failure to warn, and loss of consortium were dismissed with prejudice, and the court ordered the file closed.
