Arguments in Popcorn Case Steam Up 9th Cir

SEATTLE (CN) - A man who claims microwave popcorn caused his lung disease asked the 9th Circuit to reconsider a federal judge's ruling dismissing the case.

Larry Newkirk says he developed a sometimes-fatal lung disease called bronchiolitis obliterans after years of eating up to six bags of microwave popcorn a day.

His federal complaint claims that the popcorn's butter flavoring diacetyl causes a variety of respiratory illnesses when it is inhaled. Newkirk sued ConAgra Foods, the maker of the popcorn, and the two companies that manufacture the flavoring, Symrise Inc. and Chr. Hanson Inc.

In U.S. District Judge Rosanna Peterson's 71-page opinion dismissing the complaint, she found Newkirk failed to establish a reasonable connection between his lung disease and the butter flavoring.

In oral arguments before a three-judge panel of the federal appeals court on Monday, Newkirk's attorney, Kenneth McClain with Humphrey Farrington & McClain, argued that Peterson ignored the differential diagnosis, a method used to diagnose the cause of an illness by a process of elimination. McClain cited case precedent in allowing differential diagnosis, saying the courts had previously found that victims of "a new toxic tort should not be barred from having their day in court simply because medical literature that will eventually show the connection between the victim's condition and the toxic substance has not been completed."

McClain said that three medical experts presented by Newkirk used the diagnostic method to conclude that Newkirk's exposure to diacetyl caused his lung disease and to prove general causation. "In terms of general causation, our argument was diacetyl causes lung disease," McClain. "Diacetyl is released from microwave popcorn bags. Therefore, the general causation was established."

Judge Irma Gonzalez asked about the difference between the amount of diacetyl released around factory workers and that which is released in a kitchen by a person microwaving popcorn.

"You put your finger on the precise inquiry that should have been raised and discussed by the court, and yet she ignores that," McClain replied, referring to Judge Peterson.

McClain noted that one medical expert used a formula supplied by the defendant to determine that Newkirk received the same type of exposure as received by workers at a ConAgra plant who were diagnosed with lung disease.

Judge William Fletcher countered with problems he has identified with Newkirk's claims.

"What bothers me about your side of the case is that I read the two reports by Dr. Egilman, and I read the district judge's very careful opinion, and it seems pretty clear that Dr. Egilman has overstated what the studies show - hasn't quite played straight with the data in these studies," Fletcher said.

ConAgra's attorney, Corey Gordon with Blackwell Burke, said workers exposed to concentrated vapors of diacetyl in slurry vats could develop lung disease, but there was no evidence to show that microwaving popcorn at home emitted dangerous levels. When Gordon tried to cite a rodent study, Fletcher interrupted him and pointed out Gordon's briefing discounted the plaintiff's animal studies.

"Sauce for the goose; sauce for the gander," Fletcher said. "Either you like the studies - you either allow animal studies in for what they're worth or you don't allow them in for what they're worth."

Gordon also said that he thought putting the case before a jury would not be appropriate, and Peterson properly acted as a "gatekeeper."

In his rebuttal, McClain continued to cite medical reports and asked the court to send the case back to Robinson with direction to consider the differential diagnosis.

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