Alleging that her habit of consuming two to three bags of microwave popcorn daily between 1991 and 2007 caused her severe lung disease, a New York resident has sued a host of defendants, including 100 “John Does,” in state court. Mercado v. ConAgra Foods, Inc., No. __ (N.Y. Sup. Ct., Queens Cty., filed May 3, 2010). Agnes Mercado, who claims that her lung disease requires the regular use of an oxygen tank and will likely require a lung transplant, contends that the diactyl in Act II buttered popcorn caused her injury. She sued the product’s manufacturer, flavoring companies and unknown companies that “manufactured, designed, packaged, marketed, labeled and sold added diacetyl to Givaudan for use in its butter flavorings that were sold and distributed to ConAgra for use in ConAgra’s Act II Lite microwave popcorn.”

The plaintiff claims that any statutes of limitations have been tolled by defendants’ concealment of information about the health risks of exposure to diacetyl and alleges that she “did not discover and could not have reasonably discovered the cause of her illness before April 2010,” when she was diagnosed. She alleges negligence, strict liability for design defect and failure to warn, negligent failure to warn, and breach of express and implied warranties. Represented by Independence, Missouri-based attorney Kenneth McClain, who has successfully litigated diacetyl claims in occupational exposure cases, as well as by Lieff, Cabraser, Heimann & Berstein, LLP attorneys, she seeks compensatory and punitive damages, attorney’s fees, interest, and costs.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.