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Popcorn and the Movies – Popcorn Lung Disease

07 Feb

It is that season again—the Golden Globes; Academy Awards and all the fashion and anticipation.  I

List of U.S. state foods

know people who attend two and three movies a day just in anticipation of the big night so they can make “educated” guesses to who the winners will be.

As for me, I go to the movies for one main reason—I love the popcorn AND the butter that I put all over it and go into the dark room and eat every piece one by one.  At least that is what I used to do until I started reading one too many articles on the chemicals in the popcorn—more specifically the flavoring and coloring that is used.  The first article I remember reading was published in USA Today on September 5, 2007 titled:  “Popcorn Makers Work to Remove Chemical”.  The article reported that:

“…The nation’s largest microwave popcorn maker, Con Agra Foods Inc. will change the recipe for its Orville Redenbacher and Act II brands over the next year to remove a flavoring chemical linked to a lung ailment in popcorn plant workers.  Four of the nation’s biggest microwave popcorn makers are working to remove a flavoring chemical after a leading lung research hospital warned that consumers also could be in danger from the buttery flavoring Diacetyl. The chemical Diacetyl has been linked to cases of Bronchiolitis Obliterans, a rare life-threatening disease often called Popcorn Lung…”

Now that’s a disease that was not on my list of neuroses—Popcorn Lung Disease! As I read the article not only was I convinced I had the disease but my insurance brain kicked in gear and I saw all sorts of insurance issues including the obvious Workers Compensation; Products Liability and the potential for Mass Tort Litigation (MTL); the issue of the long term occurrence and which carrier(s) would tender notice and which would tender defense.

Clearly the story did not end there– in fact that was just the beginning.  In an article published on www.aboutlawsuits.com on 10/25/11 titled,  “Diacetyl Popcorn Worker Lawsuit Filed over Health Problems”, details are provided on a lawsuit filed by workers in an Illinois popcorn manufacturer facility for injuries caused by Diacetyl.  The lawsuits are referred to as the Popcorn Lung Lawsuits alleging that the workers were repeatedly exposed to the chemical on their job. The plaintiffs allege they have suffered lung cancer, pulmonary fibrosis, chronic obstructive pulmonary disease (COPD) and other respiratory and pulmonary ailments as a result of Diacetyl exposure. They accuse the manufacturers of failing to warn workers about the risks associated with exposure to the chemical, and of failing to provide for the safety of workers who might be exposed to the chemical.

The list of defendants in the lawsuit is long and far reaching including:  Berje, Centrome, Chemtura Corporation, Consumers Flavoring Extract Co., DSM Food Specialties, Flavor Concepts, Fona International, Frutarom USA, Givaudan Flavor Corporation, International Flavors and Frangrances, Kerry, O’Laughlin Industries, Penta Manufacturing, Phoenix Essantial Oils and Aromas, Sethness-Greenleaf, Sigma-Aldrich Corporation, Virginia Dare Extract and Wild Flavors.

More than 300 popcorn lung disease lawsuits have been filed nationwide, with most of those coming from employees of popcorn manufacturers. However, a growing number of popcorn consumers have been diagnosed with the disease and have filed lawsuits against companies that manufactured or used the flavoring.  One of the largest awards to date was awarded to a man who worked at a Flavorchem Corp. plant in the Chicago area for $30 million in a Popcorn Lung lawsuit. According to a report in the Joplin Globe, the verdict is the largest rendered to date in a lawsuit involving the chemical Diacetyl, an ingredient in butter flavoring. The verdict in the case was awarded to Gerardo Solis, 45, who worked at the Flavorchem plant between1998 and 2006 when he was diagnosed with Popcorn Lung. The lawsuit named BASF Corp., a supplier of diacetyl and the world’s largest chemical company, as a defendant.

While some of the larger microwave popcorn manufacturers have stopped using Diacetyl, the chemical is still used in thousands of products, including microwave popcorn, frozen foods, cake mixes and butter flavored cooling oils. Unfortunately, it is not often listed on ingredient labels, so there is no way for consumers to protect themselves from exposure. When the chemical is heated, say in a microwave, it is released into the air in vapor form.

In June of 2007, the Food & Drug Administration (FDA) was informed of a patient who had developed Bronchiolitis Obliterans despite never having worked in the popcorn or flavorings industry. Reportedly, the man had been eating at least two bags of butter-flavored microwave popcorn every day for 15 years prior to his diagnosis. The FDA is now investigating to see if his disease is linked to the consumption of Diacetyl in microwave popcorn. Watson’s doctor theorized that the inhalation of Diacetyl fumes from bags of microwave popcorn caused his illness.

As we look at the various lawsuits and insurance response the issues of occurrence; application of deductible; and SIR are at the heart of the arguments.  In the case of International Flavors & Fragrances, Inc. v. Royal Ins. Co. of America (Appellate Division, First Department; 10/30/07) the specific issues of Toxic Popcorn Long as relates occurrence, deductibles and SIRs were discussed.  In the case, a number of employees of a manufacturing plant claimed toxic exposure to substance found in butter flavoring. The battle, not uncommon in claims of this nature, was between the insurer and the insured over the number of occurrences as each was subject to its own deductible for products liability claims.

International Flavors & Fragrances, Inc. (IFF) entered a declaratory judgment action against its insurers, including AIG seeking a declaration of coverage under eight general liability insurance policies in connection with a class action lawsuit filed against plaintiffs in Missouri by 30 current and former employees of nonparty Gilster. The underlying plaintiffs alleged that IFF manufactured and sold butter flavoring to Gilster used in microwave popcorn packaged in its Missouri facility. The butter flavoring contains diacetyl was alleged to cause lung impairment and other respiratory system injuries. IFF admitted that at least 18 separate shipments of butter flavoring were sent to the Missouri plant from 1992 through 1996. In dispute is the application of deductibles or “self-insured retentions” (SIRs) in the amount of $100,000 or $50,000 for each “occurrence,” which is uniformly defined in all of the policies as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

AIG claimed each personal injury claim was a separate occurrence which applied a separate deductible. IFF claimed that the exposure was a single occurrence with one deductible. After a long and fairly well-reasoned discussion, the court determined that under the language of the policy, there was no occurrence without injury and there was no injury until there was exposure and illness. Accordingly, the court found that each individual plaintiff suffered an accident upon being injured by the exposure so there were 30 accidents, and not one.

And the cases continue to be filed across the country.  So not as to ruin your next experience at a movie theatre or at home while watching the awards show I suggest you consider vodka instead of popcorn.  At least that is what I am doing this year!

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