'Popcorn lung' claims pepper the Midwest
by Jane Pribek Special to Minnesota Lawyer
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It’s “baffling” to attorneys Kenneth B. McClain and Steven E. Crick of Humphrey, Farrington & McClain P.C. in Independence, Mo. McClain and Crick have filed approximately 300 other similar cases in 13 states, mostly in the upper Midwest because that’s where the bulk of the nation’s corn is grown.
McClain and Crick have successfully litigated popcorn lung cases before. They obtained a $20 million verdict in 2004 and a $15 million verdict in 2005. Their most recent victory was a $7.5 million verdict earlier this year in Kuiper v. Givaudin Flavors, after an 11-day trial in an Iowa federal court. Six other cases have settled very favorably to their clients, McClain said.
Among the many defendants they’ve previously sued, and are currently suing in other states, are two of Minnesota’s largest manufacturers and better-known companies, ConAgra Foods and General Mills.
Microwave popcorn was first manufactured by Golden Valley Microwave Foods, which ConAgra bought in 1991. Omaha-based ConAgra makes Orville Redenbacher’s and Act II microwave popcorn, while General Mills, headquartered in Golden Valley, previously made Pop Secret, before selling that brand in 2008 to Diamond Foods Inc. in Stockton, Calif.
McClain and Crick have been seeking Minnesota plaintiffs, as has Minneapolis lawyer
Other defendants in these cases are the manufacturers and distributors of a butter flavor ingredient used in microwave popcorn and other foods. The plaintiffs claim that the ingredient, diacetyl, causes airway damage and can lead to a rare, life-threatening lung disorder, bronchiolitis obliterans.
Although the long list of defendants in each popcorn lung case varies, among them typically are the bankrupt Connecticut-based Chemtura Corp. and Chemtura Canada Co./Cie. The former is a distributor for the latter. Chemtura USA filed for bankruptcy in March, and a bankruptcy judge set an Oct. 30 cutoff date for claims.
Despite the bankruptcy, recovery is possible from the Canadian business, says McClain, noting that Minnesota has joint and several liability.
What makes diacetyl so dangerous, according to McClain and Crick, is that it’s a ketone, similar to paint stripper. Safe levels of exposure, if any, are unknown.
The pair of plaintiff lawyers has obtained verdicts on behalf of ConAgra and General Mills employees elsewhere against makers of diacetyl, but not against the manufacturers themselves, although these companies have paid workers’ compensation claims to some of their employees for popcorn lung-related disabilities.
“If you put people in space suits 100 percent of the time, it can be worked with safely. The problem is, we don’t know what a safe level of exposure is, and it’s impractical to put people in masks around the clock,” said McClain. “Workers don’t wear them; they’re hot and uncomfortable.”
Artificial butter flavor has been used in microwave popcorn for at least two decades now, he noted. But in the 1990s, the formula was changed to increase the amount of diacetyl.
“There have always been exposures that have caused some disease,” said McClain, “but the number of persons affected was not large enough for it to be detected, until the advent of modern diacetyl flavoring, where we got a population large enough to be diagnosed.”
The condition is easily misdiagnosed, he noted, especially if the patient is a smoker.
Although most plaintiffs are food industry workers, McClain and Crick do have a handful of consumer cases as well, where their clients had a tendency to consume two or three bags of popcorn per day.
The previous verdicts have been high because they involved relatively young plaintiffs who will never be able to work again, and their future medical expenses are significant — typically a lung transplant is needed if a plaintiff is going to survive.
In addition, the quality of their daily lives has been seriously diminished, and they often need pulmonary rehabilitation to keep from deteriorating even further.
McClain and Crick have appeared on news programs on CBS, CNN and MSNBC and were interviewed for an article in USA Today about their popcorn lung cases, which they began accepting in 2001.
In September 2007, ConAgra and General Mills announced they would change the recipe over the next year to remove diacetyl, but maintained that the flavoring does not pose a safety risk to consumers.
A spokesperson for ConAgra Foods, Stephanie Childs, told Minnesota Lawyer that the company typically does not comment on pending litigation.
“I can tell you that we removed added diacetyl from all of our microwave popcorn products by January 2008.
“Prior to that, the company had successfully implemented workplace measures that reduced and even eliminated exposure to added diacetyl. Reformulating our products to remove added diacetyl was the final step in our efforts to provide as safe a work environment as possible for our employees,” said Childs.
Heidi Geller, a spokesperson for General Mills, said, “We are not involved in the pending litigation.”
The Obama Administration has taken an interest in regulating diacetyl. On April 10, Department of Labor Secretary Hilda L. Solis announced an intention to fast-track proposed regulations for occupational exposure to food flavorings that cover diacetyl.
Jane Pribek is an editor at large for Dolan Media, Minnesota Lawyer’s parent company. Heather Cole of Missouri Lawyers Weekly contributed to this article.
