The Joplin Globe, Joplin, MO

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September 19, 2012

Popcorn consumer wins $7.3 million verdict

A Colorado man became the first consumer diagnosed with a rare lung disease to prevail in a lawsuit against a maker or purveyor of microwave popcorn Wednesday, winning a verdict of almost $7.3 million against the corporate owners of a popcorn plant in Jasper and two grocery chains.

Wayne Watson, 59, of Centennial, Colo., won the verdict against Gilster-Mary Lee Corp. and The Kroger Co., a Cincinnati-based corporation that owns both Kroger and Dillons grocery stores.

Ken McClain, the plaintiff’s attorney, said his client was diagnosed with bronchiolitis obliterans in 2007 at the National Jewish Hospital in Denver. He argued at trial that Watson contracted the disease through exposure to chemicals associated with artificial butter flavoring in microwave popcorn, which he prepared and ate frequently.

“He ate two to three bags a day, one in the morning, one in the evening, and sometimes, if his wife was there, he would pop one in for her,” McClain said.

McClain said the primary moment of exposure for his client came when he would open the bags after popping them in the microwave. The attorney said the brands that his client preferred to buy, Kroger Movie Theater Butter and First Choice Extra Butter, were made at the Jasper (Mo.) Popcorn Co. plant.

The disease was first recognized in workers at the plant owned by Gilster-Mary Lee. The National Institute of Occupational Safety and Health subsequently confirmed its cause to be exposure to the chemical diacetyl contained in butter flavoring.

The lung disease is potentially fatal and can lead to the necessity of lung transplants in sufferers.

Workers with the disease began suing the manufacturers of the butter flavoring about nine years ago and have won verdicts in several states. A Jasper County jury awarded Eric Peoples of Carthage and his wife a $20 million verdict in 2004. A Chicago-area man won a $30.4 million verdict two years ago.

The jury awarded Watson $2,267,000 in actual damages and $5 million in punitive damages.

“What happened here was an avoidable tragedy,” McClain said of his Colorado client’s case. “Gilster-Mary Lee knew its own employees in the quality control room were getting sick from popping corn. It was not a long leap to recognize that consumers were also at risk.”

Other cases

Attorney Ken McClain lost a popcorn consumer case last year representing a woman from Blue Springs in Jackson County Circuit Court. He has two other popcorn consumer cases pending in Iowa and one in New York.



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