By Pat Murphy
The Daily Record Newswire
Personal injury attorneys are sick and tired of the accusation that they often resort to “junk science” in order to win that pot of gold for their clients.
But it doesn’t help to dispel that rap when a case is shot down because of an expert whose opinions aren’t ready for prime time.
And that’s exactly what happened earlier this month when a federal judge refused to give credence to an expert’s opinion that a man’s injuries were caused by his eating upwards of 28,000 bags of microwave popcorn.
Yep, that’s right, Larry Newkirk of Spokane Valley, Washington, claims that for eleven years he ate between five to seven bags of microwave popcorn each day.
You see, in 1987 Larry gave up smoking. In order to suppress his appetite and avoid gaining weight, Larry turned to microwave popcorn, bags and bags of microwave popcorn.
Larry preferred Act II Butter and Act II Butter Lovers popcorn made by Conagra Foods.
Of course, a problem with microwave popcorn in the 80s and 90s when Larry was pounding down the popcorn was that it contained trace amount of diacetyl, a flavoring agent used to provide a buttery taste.
Diacetyl exposure can cause bronchiolitis obliterans — sometimes referred to as “popcorn lung” — which is a severe lung disease. Conagra stopped using diacetyl in 2007.
Larry began experiencing shortness of breath, chest tightness, dry cough, and fatigue sometime between 2000 and 2003.
Hearing about the popcorn lung phenomena through media reports, Larry saw a pulmonologist who concluded that his lung problems were due to his history of smoking.
Dissatisfied with this diagnosis, Larry saw a specialist in the field who coincidentally serves as a plaintiffs’ expert.
The specialist diagnosed Larry as suffering from bronchiolitis obliterans.
So Larry filed an assortment of product liability claims against Conagra, alleging that he had developed popcorn lung as a result of eating the company’s microwave popcorn.
Plaintiffs’ attorneys have had more than a modicum of success in popcorn lung cases involving workers at popcorn plants.
The big hurdle for Larry in proving his claim was the level of his exposure to diacetyl.
You see, whereas popcorn plant workers may have been be exposed to diacetyl levels of up to 32.27 parts per million (ppm), Larry was claiming injury based on a 0.02 ppm level of diacetyl exposure.
And this is really where Larry’s expert witness, Dr. David Egilman, was called upon to do some heavy lifting.
Earlier this month, U.S. District Judge Rosanna Peterson found Dr. Egilman’s expert opinions wanting in the extreme insofar as his attempt to show causation in a consumer popcorn lung case.
In conducting her Daubert analysis, Judge Peterson first concluded that there was insufficient data for Dr. Egilman’s attempt to liken a consumer’s exposure to diacetyl to a worker’s exposure in a microwave popcorn plant.
“[T]here is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical. To the contrary, at least one study considering as a side question whether the exposures of quality control workers popping microwave popcorn and mixers of butter flavoring and other ingredients experienced different exposures concluded that it was likely the exposures were qualitatively different,” the judge wrote.
The judge then turned to skewering Dr. Egilman’s methodology.
Noting that the good doctor in certain aspects of his testimony “provides no indication of external support for his conclusions,” the judge went on to find that “Dr. Egilman relies on existing data, mostly in the form of published studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman manipulates the data from those studies to reach misleading conclusions of his own.”
Judge Peterson then came to the nub of the problem with Egilman’s testimony.
“There is simply too great an analytical gap between the existing data, indicating that exposure to butter flavoring vapors in the occupational setting can cause bronchiolitis obliterans, and Dr. Egilman’s opinion that a consumer of microwave popcorn is exposed to a vaporized substance equivalent to production plant butter flavoring vapors at levels sufficient to cause bronchiolitis obliterans,” the judge said. (Newkirk v. Conagra Foods)
With Larry’s key expert excluded, his case foundered on the rocks and Judge Peterson granted Conagra’s motion for summary judgment.
Which brings us back to the original point: Why bring the case at all with such sketchy expert testimony?