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From Products Liability Law Daily, August 21, 2014

Jury finds butter flavoring maker not liable for “popcorn lung” injuries

By Pamela C. Maloney, J.D.

An Iowa federal jury found that a manufacturer of butter flavoring used in microwave popcorn was not liable for injuries to a consumer who claimed he developed “popcorn lung,” or bronchiolitis obliterans, after “consuming multiple bags of microwave popcorn daily for several years” (Stults v. International Flavors and Fragrances, Inc., August 20, 2014, Bennett, M.).

Background. The consumer, David Stults, and his wife filed suit against several manufacturers and distributors of microwave popcorn and suppliers of butter flavoring for that popcorn, alleging that as a result of his consumption of microwave popcorn he developed “popcorn lung,” or bronchiolitis obliterans, which was caused by inhaling fumes from butter flavorings containing diacetyl. All the manufacturer and distributor defendants, other than International Flavors and Fragrances, Inc., and Bush Boake Allen, Inc. (collectively International Flavors), had been dismissed prior to the court’s consideration of the merits of the case.

Previous rulings. The consumer’s strict liability claims also had been dismissed previously because the court found that Michigan law, which applied in this matter, did not recognize such a claim. The court initially dismissed the consumer and his wife’s claims of breach of implied warranty and negligence based on the expiration of the statute of limitations. However, these claims were revived upon reconsideration because the court found that a statutory discovery rule tolled the statute. The butter flavoring manufacturer filed a motion for summary judgment regarding the consumer’s failure-to-warn claims, the negligent design defects claim, and the breach of implied warranty claim.

Jury verdict. On July 29, before submitting the case to the jury, the court clarified its decision on reconsideration stating that his order revived only the consumer’s breach of implied warranty claim and his wife’s loss of consortium claims. The discovery rule cited by the consumer in support of his motion for reconsideration was limited to implied warranty claims and did not apply to negligence claims for defective design and defective warnings. Thus, the court submitted for jury consideration only on the breach of implied warranty and loss of consortium claims.

In response to the verdict form, the jury found in favor of the manufacturer on the breach of implied warranty claim. Because the loss of consortium claim was derivative of the implied warranty claim, there was no need for the jury to make a determination of liability on the wife’s claim.

The case number is C 11-4077-MWBAugust 20 judgment orderclarifying order.

Attorneys: Dennis M. McElwain (Smith & McElwain) for David Stults. David I. Matthews (Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC), and Jeff W. Wright (Heidman Law Firm, LLC) for International Flavors and Fragrances Inc., and Bush Boake Allen Inc.

Companies: International Flavors and Fragrances Inc.; Bush Boake Allen Inc.

MainStory: TopStory FoodBeveragesNews WarningsNews IowaNews

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