An insurer that issued commercial umbrella policies to a company that makes flavorings ingredients, including those used in butter-flavored microwave popcorn, is seeking a declaration that it has no obligation under those policies to defend or indemnify the company in lawsuits alleging respiratory injury from exposure to diacetyl. Continental Cas. Co. v. Citrus & Allied Essences Ltd., No. 650548/2011 (N.Y. Sup. Ct., filed February 28, 2011). More than 50 diacetyl lawsuits have apparently been filed against the ingredients supplier by individuals alleging workplace exposures. The insurer contends among other matters that it was not timely notified about some of the suits, the injuries did not occur during the policy coverage period, pollution exclusions preclude coverage, and the insured has settled lawsuits without the insurer’s consent.
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The Occupational Safety and Health Administration (OSHA) has revised its “National Emphasis Program (NEP) on Microwave Popcorn Processing Plants,” to add several diacetyl substitutes to its policies and procedures for minimizing or eliminating worker exposures “to the hazards associated with microwave popcorn manufacturing.” Effective January 18, 2011, the NEP now includes 2,3-pentanedione, 2,3-hexanedione, 2,3-heptanedione, and “all other related diacetyl substances that share the same alpha-diketone structure, as well as substitute diacetyl trimer and acetoin.” According to OSHA’s David Michaels, “Illnesses and deaths from these chemicals are preventable and this revised directive will help ensure that employers use necessary measures to protect workers from this hazard.” See OSHA Press Release, January 24, 2011.
A recent study has proposed a model linking the butter flavoring known as diacetyl to bronchiolitis obliterans syndrome, a lung disease diagnosed in microwave popcorn plant workers. James Mathews, et al., “Reaction of the Butter Flavorant Diacetyl (2,3-Butanedione) with N-α Acetylarginine: A Model for Epitope Formation with Pulmonary Proteins in the Etiology of Obliterative Bronchiolitis,” Journal of Agriculture and Food Chemistry, November 2010. Researchers with RTI International and the National Institute of Environmental Health Sciences evidently analyzed the effects of diacetyl on N-R-acetylarginine ,in an effort to understand how the chemical reacts with cell membranes containing the amino acid arginine. According to the study abstract, “Because diacetyl modifies arginine residues, an immunological basis for its toxicity is under investigation.” “Currently, the mechanism(s) of diacetyl toxicity (are) unknown; however, the results of this study suggest that injury to the airway epithelium may involve alteration of cellular proteins containing arginine, including those on…
A New York bankruptcy court will reportedly allow Chemtura Corp. to resolve 90 percent of the respiratory disease claims pending against it for $50 million, or one-third of the $150 million sought by factory workers allegedly exposed to the popcorn-flavoring ingredient diacetyl. In re: Chemtura Corp., No. 09-11233 (S.D.N.Y., settlement approved August 23, 2010). Responding to claims by co-defendants that the settlement may not meet “good faith” requirements, the court reportedly indicated that it was “within the range of reasonableness.” The settlement will apparently resolve 15 lawsuits and 347 proofs of claim filed by individuals alleging personal injury from diacetyl exposure. The company has indicated that eight additional individual and five corporate diacetyl claims remain pending. According to a news source, the company has also reached an agreement with its insurers to cover half the cost of the settlement and provide up to a maximum of $10 million to indemnify…
According to a news source, a man who worked in a Chicago-area plant for eight years and was diagnosed with bronchiolitis obliterans has been awarded $30.4 million on claims that workplace exposure to the butter-flavoring chemical diacetyl left him with 25 percent of normal lung capacity that will require a lung transplant within the next 10 years. Solis v. BASF Corp., No. ___ (Ill. Cir. Ct., Cook Cty.) The largest verdict previously awarded in a similar case was $20 million to a former popcorn plant worker in Missouri. Plaintiff Gerardo Solis, 45, was represented by Independence, Missouri, attorney Ken McClain. See The Joplin Globe, August 16, 2010.
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…
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…
A federal court in California has denied defendant’s motion to dismiss a putative class action alleging that the company deceived the public by promoting and labeling its reformulated microwave popcorn as containing “No Added Diacetyl.” Fine v. ConAgra Foods, Inc., No. 10 01848 (D.C. Cal., order entered June 29, 2010). According to the plaintiff, she relied on defendant’s claims about “no added diacetyl” when purchasing its products, yet the popcorn still contains diacetyl. Accepting the plaintiff’s allegations as true for the purpose of ruling on the motion, the court noted that while plaintiff does not have “direct knowledge of the presence of diacetyl in Defendant’s products, Plaintiff relies on the work and statements of several health experts and alleges that ‘[k]nown “substitutes” for diacetyl still contain molecules of diacetyl.’” The defendant sought to dismiss the claims on the grounds that the plaintiff did not allege a cognizable injury and thus lacks…
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…
A group of insurance companies has sued another group of insurers, seeking a declaration that the defendants are also required to indemnify and defend flavoring companies that have been named as defendants in lawsuits by former microwave popcorn- and candy-plant employees alleging injuries from exposure to diacetyl. Arrowood Indem. Co. v. Atl. Mut. Ins. Co., No. 10600881 (N.Y. Sup. Ct., N.Y. County, filed April 7, 2010). While the plaintiffs anticipate that additional diacetyl exposure lawsuits will be filed, they allege that they have been defending, subject to a reservation of rights, seven cases already filed in Illinois, Missouri, Montana, and Ohio. The plaintiffs contend that the defendants have either wrongfully denied any coverage obligations or refused to respond to requests for contribution to the litigation defense or indemnity costs. Seeking declaratory relief, the plaintiffs also ask for damages, attorney’s fees, interest, and costs.
