Expert Witness in Popcorn Lung Litigation Files Non-Party Appeal of Decision to Exclude His Testimony
Dr. David Egilman, who was excluded from testifying as an expert witness in the case of a person who claimed the fumes from microwave popcorn caused his lung disease, has reportedly filed a non-party appeal from the decision finding his testimony unreliable. More details about the case and the court ruling appear in Issue 356 of this Update.
A federal district court determined in Newkirk v. ConAgra Foods, Inc. that Egilman lacked any scientifically sound basis for attempting to extrapolate workplace exposures to the diacetyl used in popcorn and other baked goods to exposures in the home. Workplace exposures, which have been extensively studied, have linked exposure to the butter-flavoring chemical to bronchiolitis obliterans, a debilitating lung condition often referred to as “popcorn lung.”
Egilman, according to a news source, purportedly testified in 2005 in pharmaceutical litigation that he had earned between $2 million and $2.5 million over the previous 25 years testifying as an expert witness in personal injury cases. While non-parties are apparently entitled to appeal federal court rulings, they must have a direct financial interest in the outcome of the litigation. At least one commentator has questioned whether expert witnesses should be allowed to file appeals when their testimony has been excluded, speculating that the courts could be overwhelmed by challenges to these rulings. According to a news source, Egilman once successfully demonstrated that he had standing to file a non-party appeal in a case in which the trial judge apparently excluded him from ever testifying again in his courtroom after finding that Egilman was “hostile, biased and vindictive.”
A Colorado Appeals Court in 2002 reportedly overturned a sanctions order against Egilman in that case indicating that the judge’s aspersions could jeopardize his ability to obtain future employment as an expert witness. The court in Newkirk did not attack Egilman on a personal level and simply precluded him from testifying in that case.
Meanwhile, a Missouri jury has reportedly rejected the claims of a woman who sought to hold ConAgra liable for her lung injury, which she alleged was caused by exposure to microwave popcorn that she prepared when she worked in video stores and at home. Egilman apparently testified on Elaine Khoury’s behalf. Both Khoury and Newkirk have indicated their intention to appeal the decisions in their respective cases. See The (Kansas City) Pitch, August 3, 2010; onpointnews.com, August 9 and 13, 2010.
