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Aug. 1 — A Texas woman who worked in a popcorn shop at a mall for 17 years alleges in a new state-court suit that exposure to popcorn flavorings left her with severe respiratory disease ( Harris v. Aldrich Chem. Co., Tex. Dist. Ct., No. 2016CI12470, complaint filed 7/26/16 ).
“This was a situation where she was popping corn in a retail store,” not working in a popcorn factory, attorney Kenneth B. McClain, who represents plaintiff Mary Harris, told Bloomberg BNA July 29.
“This is a different-type setting than we have seen in the past,” McClain said.
A number of factory workers, and some consumers, have succeeded in obtaining large verdicts in similar lung-disease suits in recent years. But this is the first known case filed by a retail worker, according to McClain.
Harris sued 54 defendants in Bexar County District Court July 26. Ten defendants, all related companies, are residents of Texas, making state-court jurisdiction appropriate, Harris alleges.
The defendants made natural and artificial flavorings, including diacetyl and diacetyl substitutes, and products containing them, she alleges.
The plaintiff asserts claims for strict products liability, including allegations of design, manufacturing and warnings defects. Her other claims are for negligence, gross negligence and misrepresentation. She seeks both compensatory and punitive damages.
McClain said the discovery process would shape how much money his client would seek at trial.
Harris has difficulty breathing and other limitations, and the condition is incurable, McClain said.
Harris has a rare lung condition, bronchiolitis obliterans, also called “popcorn lung,” according to a July 29 statement by McClain's firm, Humphrey, Farrington & McClain.
Suits by popcorn-plant workers have resulted in multimillion-dollar verdicts, though the largest of these, for $30.4 million, was reversed on statute-of-limitations grounds ( Solis v. BASF Corp., 979 N.E.2d 419 (Ill. App. Ct. 2012)).
The case subsequently settled for a confidential amount, McClain said in an e-mail Aug. 1.
Some consumers who ate popcorn on a daily basis have also sued, with mixed success. The U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of one such suit in 2011 ( Newkirk v. ConAgra Foods Inc., 438 Fed. Appx. 607 (9th Cir. 2011) (unpublished)).
Another consumer was awarded $7.2 million in 2012 ( Watson v. Dillon Cos. (D. Colo. 2012) (verdict rendered)). The defendants in that case initiated an appeal but then withdrew it, according to the docket. McClain said the parties settled, the amount also confidential.
A third consumer suit ended with a confidential settlement in 2013 ( Daughetee v. Chr. Hansen Inc. (N.D. Iowa 2013) (settlement)), and a defense verdict in a fourth suit was affirmed in March 2016 ( Stults v. Am. Pop Corn Co., 815 F.3d 409 (8th Cir. 2016)).
McClain, who has represented plaintiffs in a number of the other popcorn-flavoring suits, said his firm has seen several retail workers with lung problems but hasn't pursued those cases for various reasons. This is the first filed by a retail worker that he's aware of, he said.
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