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Popcorn Workers Lung Victims Granted Big Victory in Manhattan Appeals Court

Missouri Popcorn Plant Workers to get Minimum $50,000 Deductible Payment if Diacetyl Lawsuit is Successful

Oct 31, 2007 | Parker Waichman LLP

Popcorn Workers Lung victims involved in a class action lawsuit got some good news from a New York appeals court yesterday.   The court ruled that if the former Missouri popcorn plant workers successfully prove their claims that diacetyl exposure caused them to develop Popcorn Workers Lung, each should receive a minimum $50,000 deductible payment from International Flavors and Fragrances, the company that supplied the toxic chemical to the plant.

Diacetyl is used to give microwave popcorn and other snacks a buttery flavor.  In 2003 and 2004, the National Institute on Occupational Safety and Health found an association between diacetyl exposure and the development of Popcorn Workers Lung among hundreds of workers at six Midwestern popcorn factories.  In April, the Centers for Disease Control reported that workers at food flavoring factories, as well as popcorn plants, were at risk for the disease.

Popcorn Workers Lung, also known as bronchiolitis obliterans, is a potentially life threatening ailment, for which the only cure is a lung transplant.   Since the connection was made between diacetyl exposure and the onset of Popcorn Workers Lung, snack and flavorings industry workers have filed dozens of diacetyl lawsuits seeking compensation for their injuries.  Earlier this summer, the Food & Drug Administration announced that it was investigating the first known case of a consumer developing bronchiolitis obliterans from eating microwave popcorn.  Shortly after that announcement, some popcorn makers, including ConAgra and Weaver Popcorn announced that they would stop using diacetyl in their popcorns.

The ruling against International Flavors and Fragrances stems from a class action lawsuit filed by 30 current and former employees of a Missouri popcorn plant who are now suffering from Popcorn Workers Lung.  The Popcorn Workers Lung lawsuit names International Flavors and Fragrances as a defendant because the company supplied the factory with diacetyl between 1992 and 1996.   International Flavors and Fragrances had asked the Manhattan Supreme Court to rule that it only had to pay one deductible for each of its eight liability policies no matter how many workers were involved in the lawsuit.   Depending on the policy, those deductibles range from $50,000 to $100,000 per occurrence.   The diacetyl supplier had argued that an “occurrence” constituted all of the Popcorn Workers Lung injuries taken as a whole.

But the Manhattan Supreme Court Appellate Division did not agree with International Flavors and Fragrances’ arguments, and concluded that there was no single occurrence that caused each of the workers bronchiolitis obliterans.  The judge writing the court’s opinion asserted that the employees sustained their injuries “as a consequence of repeated deliveries” of diacetyl to the popcorn plant, and were exposed to the toxic chemical at different times.  

The ruling of the New York appeals court was unanimous. What this latest diacetyl ruling will mean for other victims of Popcorn Workers Lung remains to be seen.


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