***** Continuation of Legal Rebuttal - Move on if not interested *****
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The opinion of the court was delivered by: Senior Judge Walker D. Mille
ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO EXCLUDE TESTIMONY
This matter is before me on the Joint Motion for Summary Judgment (ECF No. 572) filed by Defendants Dillon Companies, Inc., d/b/a King Soopers, Inter-American Products, Inc., and The Kroger Company (collectively, the "Kroger Defendants"), Gilster-Mary Lee Corporation ("Gilster-Mary Lee") and Birds Eye Foods, Inc., ("Birds Eye"). These Defendants have also filed motions to exclude portions of testimony of Plaintiffs' expert witnesses (ECF Nos. 567, 568, 569, and 570).
Statement of Facts, ECF No. 600-6, at 165. Studies at popcorn plants revealed a strong association between exposure to vapors from flavorings, including diacetyl, and decreased lung function. Kreiss, supra, ECF No. 600-1, at 333 ("The prevalence of airway obstruction increased with increasing cumulative exposure to diacetyl"); NIOSH ALERT, supra, ECF No. 600-4, at 1; INTERIM REPORT (Aug. 22, 2001), supra, ECF No. 600-5, at 18 ("The exposure-response relationship between diacetyl cumulative exposure and pulmonary function was unequivocal");
Harber, supra, ECF No. 600-7, at 262 (results of surveys at popcorn plants "pointed to a clear association between a particular chemical agent (diacetyl) and bronchiolitis obliterans"). Studies of emissions from microwave popcorn preparation have shown that the highest levels of release occur when opening the bag after popping.
Jacky A. Rosati, et al., Emissions from Cooking Microwave Popcorn, CRIT. REV. IN FOOD SCI. & NUTRITION, 47, 701 (2007), Exh. 47 to Pls.' Statement of Facts, ECF No. 602-7, at 709. It has been established that chemicals emitted during normal popping of microwave popcorn are similar to those found by NIOSH in popcorn manufacturing plants, with the exception of one chemical not at issue here.
Although the relationship between exposure to butter flavorings and respiratory problems has been established, there remain numerous unanswered questions about what level of exposure triggers health effects and whether such effects are caused by peak or by cumulative exposures.
Researchers from at least one study have concluded that the risk to QC workers, as with mixers, may result from brief, intense exposures to the flavoring chemicals even when low average exposures are maintained. Kanwal, supra, ECF No. 560-14, at 156. This study also noted that the risk to QC workers is of a different nature than other workers because they work with the product at much higher temperatures, which increases the volatility of the flavoring chemicals.
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I now turn to the evidence relating to Mr. Watson's health history and his diagnosis of bronchiolitis obliterans. Bronchiolitis obliterans is a rare lung disease involving inflammation of the small airways. INTERIM REPORT (Aug. 22, 2001), supra, ECF No. 600-5, at 15.
Mr. Watson owned a carpet cleaning company from approximately 1998 or 1999 to 2001. He was exposed to carpet cleaning chemicals in the course of that work and did not regularly use respiratory safety equipment, although he testified that he used fans for ventilation and kept windows and doors open while working. As noted above, his heavy consumption of Defendants' microwave popcorn products occurred from around 2000 to 2007.
Mr. Watson's history of respiratory problems goes back some time. He was diagnosed with asthma and pneumonia in 1998, although no pneumonia was revealed on his chest x-ray at that time. He also had reflux disease. Mr. Watson was diagnosed with pneumonia again in 2000, but the chest x-ray again was not conclusive. His medical records showed additional breathing problems and coughing in 2002 and 2003. In 2005, he began noticing that while singing he could not sustain his notes and that he was short of breath. His records show more evidence of breathing difficulty and coughing in 2006. He consulted a physician at National Jewish Medical and Research Center in May 2006, where he was evaluated for sleep apnea; his decreased pulmonary function was also noted. A lung biopsy was taken, which showed various abnormalities.
In 2006, his physician noted that even though Mr. Watson's exposure to carpet cleaning chemicals had ceased in 1999, his shortness of breath had progressed.
Mr. Watson was examined by Dr. Cecile Rose at National Jewish in February 2007. She noted that he consumed large amounts of microwave popcorn on a daily basis and recommended that he stop. He did and began feeling better; his symptoms have apparently stabilized since then. Dr. Rose has worked as a consultant to the flavoring industry with respect to occupational exposure to flavoring ingredients and was already quite familiar with the research concerning respiratory problems among popcorn factory workers. It appears that Dr. Rose diagnosed Mr. Watson with bronchiolitis obliterans and opines that his disease was caused by his exposure to microwave popcorn flavorings.
On February 22, 2007, John Martyny, Ph.D., an industrial hygienist, performed an assessment of diacetyl levels in the Watson home before and during the process of preparing two bags of microwave popcorn. Martyny Dep., Exh. 53 to Pls.' Statement of Facts, ECF No. 602-13, at 27.
Using the gas monitor, a peak diacetyl concentration was measured at 3.045 ppm, which occurred upon opening the microwave door immediately following completion of popping the first bag of popcorn. Id. Upon opening the bag, a peak concentration of 1.143 ppm was measured. Id. This was similar to background levels measured before popping, see hearing Exhibit 209, which could signify unreliability in the measurement, as Defendants' witnesses suggest, or the presence of residual diacetyl in the Watson home, as Plaintiffs' witnesses suggest.
On July 18, 2007, Dr. Rose wrote a letter to the Food and Drug Administration and other regulatory agencies identifying Mr. Watson as perhaps the first case of a consumer developing lung disease from butter flavorings. Exh. 52 to Pls.' Statement of Facts, ECF No. 602-1… She recognizes the difficulty of making a causal connection from one case study but states she is providing the information to the federal agencies because of the possible public health implications. Id.
At the June 14-15, 2011 hearing, testimony was provided by Dr. David Egilman, Dr. Allen J. Parmet, Dr. E. Neil Schachter, Dr. Colin Soskolne, and Dr. Kenneth Kulig. Several exhibits were referenced and the parties have stipulated to their admission into evidence.*fn5At the June 14-15, 2011 hearing, testimony was provided by Dr. David Egilman, Dr. Allen J. Parmet, Dr. E. Neil Schachter, Dr. Colin Soskolne, and Dr. Kenneth Kulig. Several exhibits were referenced and the parties have stipulated to their admission into evidence.*fn5
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Plaintiffs have proffered three experts who have opined that Mr. Watson has bronchiolitis obliterans caused by exposure to microwave popcorn flavoring. This is clearly relevant to the issues to be decided; the dispute here concerns only the reliability of those opinions. I will summarize the proposed testimony and opinions of each expert and Defendants' objections. Defendants do not appear to contend that these witnesses are not qualified to serve as experts but rather take issue with the substance of their proposed testimony.
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