797 F. Supp. 2d 1138
D. Colo.2011Background
- Watson alleges bronchiolitis obliterans connected to butter flavoring in microwave popcorn consumed daily 2000–2007.
- Popcorn sold under Kroger private labels was manufactured by Gilster-Mary Lee and Birds Eye; Kroger labeled products without naming manufacturers.
- NIOSH and other studies linked diacetyl-containing flavorings to respiratory disease in popcorn plant workers; higher exposure languages incl. QC/mixer roles.
- Watson’s exposure is debated as consumer-level vs. occupational-level; expert testimony focuses on causation theories and dose considerations.
- Defendants moved to exclude expert testimony under Rule 702/Daubert; court held most opinions admissible with one exception.
- Court denied summary judgment on causation and related claims; granted in part the motion to exclude minimal-threshold diacetyl testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| General causation of injury by butter flavorings | Watson's injury plausibly linked to diacetyl exposure in flavoring. | No published consumer exposure studies; insufficient general causation. | Genuine issue; jury may decide general causation. |
| Specific causation for Watson’s injury | Differential diagnosis and temporal relationship support Watson’s injury from flavorings. | Exposure levels and dose-response not reliably established. | Question for jury on specific causation; not excluded. |
| Colorado Consumer Protection Act viability | Kroger defendants’ marketing/labelling implied safety and concealed risk; public impact. | No evidence of consumer risk disclosures or significant public impact. | Issue of fact; CCPA claim survives summary judgment. |
| Kroger Defendants as manufacturers under product liability | Apparent manufacturer theory subjects Kroger to liability for unlabeled product. | Kroger did not know of consumer risk nor control manufacturing; not a manufacturer. | Apparent manufacturer theory implicated; trial to outline contours. |
| Punitive damages against Gilster-Mary Lee | Knowingly disregarded consumer risk; punitive damages appropriate. | No evidence of knowledge of substantial consumer risk. | Issue of fact; punitive damages not resolved on summary judgment. |
Key Cases Cited
- Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir.2005) (general and specific causation framework for toxic torts)
- Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193 (10th Cir.2002) (differential diagnosis as basis for causation in appropriate circumstances)
- Turner v. Iowa Fire Equip. Co., 229 F.3d 1202 (8th Cir.2000) (differential diagnosis guidance in causation analysis)
- Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (S.Ct.1999) (Daubert gatekeeping applies to all expert testimony)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (S. Ct.1993) (gatekeeping reliability and relevance of expert testimony)