Men afflicted with ‘popcorn lung’ win at trial

Two men who claimed respiratory damage from exposure to a food flavoring additive were awarded $1 million each by a St. Louis jury.

“It is a very unique diagnosis which a lot of pulmonologists will miss,” said Jack Garvey of Branstetter Stranch & Jennings, who helped represent the plaintiffs.

Ronald Hutchins and Lafayette Gills asserted injuries from bronchiolitis obliterans due to their work around the substance diacetyl. The condition is sometimes called “popcorn lung” based on the additive’s use in butter flavoring for the microwave snack.

“If they had put the proper warning on it and really let everyone know what was in diacetyl, everyone would have been wearing the proper protective equipment but they didn’t. They minimized the risk,” Garvey said.

But attorney William Thomas of Gausnell, O’Keefe & Thomas, an attorney for defendant Elan Chemical Company, said the plaintiffs were offered protective gear and that his clients made no secret of the fact that it should be used when they supplied the substance to the pair’s employer, a food flavorings company.

“The material safety data sheets for diacetyl made clear that it is to be used only under certain conditions of use with personal protective equipment including goggles, respirator, gloves, other skin protection and in a ventilated workspace,” he said. “If you look at the material safety data sheet for diacetyl, it makes it pretty clear that it is a substance to be handled with great care and caution.”

Thomas said it was the responsibility of the plaintiffs’ employer to pass along the manufacturer’s warnings of any issues with diacetyl’s use.

“Because the employer was a former party in the case dismissed out by the time of trial,” he said, “we were unable to point the finger of blame at them other than to say that that information existed, it was provided to their employer and to ask the plaintiffs directly if their employer ever shared that information with them and trained them on the safe use of these products.”

He said the defense took pains to avoid blaming the plaintiffs themselves. He said one of them wore protective clothing while in the mixing room while the other, who worked in the warehouse and bottling areas, did not.

Garvey said the case proceeded on strict liability which precluded any evidence of the employer’s knowledge and focused only on the conduct of the remaining defendant manufacturer.

He said his clients were not given access to the type of protective equipment they needed and called the material data safety sheet information a “standard warning” that might be found on any chemical.

“It didn’t warn about the malady that these two guys suffered,” he said.

Due to prior settlements, Hutchins’ award was reduced to $545,897.91, and Gills’ to $722,168.85.

Both sides expressed satisfaction with the verdict. Thomas said plaintiff’s counsel requested $50 million for each man in closing while the defense suggested an award of a little over half a million if jurors found any liability in the case.

Garvey said he was glad to get a good recovery for his clients and felt gratified by the jury’s finding of liability for the company in the matter.

“I think they just saw two hardworking guys who, through no fault of their own, were exposed to this chemical and I think that’s really what swung it,” he said.

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$2 million verdict

Product liability

Breakdown: $722,168.85 for Gills, $545,897.81 for Hutchins after setoffs from previous settlements

Venue: St. Louis Circuit Court

Case Number/Date: 1722-CC01186/March 3, 2023

Judge: Rex Burlison

Plaintiffs’ Experts: Charles Pue, Sarasota, Florida (pulmonologist); Adam Finkel, Pennington, New Jersey, (industrial hygienist)

Defendants’ Experts: Franklin Mink, Corinth, Kentucky (toxicologist); Gregory Diette, Baltimore (pulmonologist); Robert McCunney, Boston (pulmonologist)

Insurer: AIG

Caption: Ronald Hutchins and Lafayette Gills v. Elan Chemical Company Inc.

Plaintiffs’ Attorneys: Jake Plattenberger, Steve Davis and Eric Cracken, TorHoerman Law, Chicago; Jack Garvey, Branstetter Stranch & Jennings, St. Louis

Defendants’ Attorneys: Daniel Arnett, Kurt Drain and Mark Bennett, Arnett Law Group, Chicago; William Thomas, Gausnell, O’Keefe & Thomas, St. Louis