Popcorn verdict: Can you swallow it?

Insurance companies, big business, and all of those who want to limit the amount of money wrongdoers should otherwise pay to those they harm must be loving a recent verdict involving Wayne Watson’s health problems.

WASHINGTON, D.C.  September 21, 2012 - Insurance companies, big business, and all of those who want to limit the amount of money wrongdoers should otherwise pay to those they harm must be loving a recent verdict involving Wayne Watson’s health problems.  Wayne, from Denver, Colorado, tells us he ate two bags of micro-waved popcorn every day for about ten years.  Wayne’s respiratory functions were reduced by about half; he had developed a disease often called “popcorn lung” from a build-up of diacetyl, a chemical used for the buttery flavoring we all so enjoy.  The disease was first recognized in workers at a popcorn factory. Wayne sued the manufacturer, Gilster Mary-Lee Corp., and the store that sold him all of the popcorn.  Wayne argued that these companies should have warned customers that inhaling the buttery aroma could put them at risk of lung damage.

Wayne won his lawsuit.  A Federal jury awarded him $7.2-million.  The verdict was for $2.267-million in actual damages, and $5-million in punitive damages.

Insurance companies, big business, and all of those who want to limit the amount of money wrongdoers should otherwise pay to those they harm must be loving this verdict.  They can use this in their “tort reform” rhetoric, much as they did with Stella Liebeck’s verdict against McDonalds in 1994, when in 1992 she suffered excruciatingly painful third degree burns on her inner thigh, from coffee spilling on her.  The jury in her case against McDonalds awarded her $2.9-million to compensate her for her injuries, an eight-day hospital stay, and numerous painful skin grafts. The trial judge later reduced that award to $480,000.00.  The press and the tort “reformers” went crazy with claims of “runaway jury” and “frivolous lawsuit.”  I am confident we will see much of the same now, decrying Wayne’s verdict as excessive and his case as frivolous.  We will also probably hear that he should not have consumed so much popcorn in an effort to suggest that somehow Wayne was responsible for his lungs being half-shot.

Allow me to assist in the examination of Wayne’s case as I offer what were clearly the most important legal and factual questions, and the answers.

1.  Was this a “frivolous” case?  Frivolous means that there is no merit to a claim.  Clearly, Wayne’s claim had merit.  He lost half of his lung function, making breathing difficult, making virtually most of his physical activity difficult or impossible, and requiring a lifelong need for medical care.  These are not meaningless or merit-less consequences.

2.  Was the manufacturer of the chemical responsible?  Generally, if we harm someone negligently, we are responsible.  Here, the question really is about the warning Wayne correctly tells us was not provided.  Did the popcorn manufacturer have a duty to warn customers that excessive use could expose them to respiratory problems?  Of note here is that the chemical is no longer being used.  Some experts indicate there may be a link between it and Alzheimer’s. 

That duty to warn then becomes the pivotal question.  Did the manufacturer know, or should they have known, about the possible health risk with diacetyl?  What information was available to them, and when was it available, concerning diacetyl?  Assuming they knew of the risk, how much of a risk was it?  In fact, the company knew of the problems well before Wayne got sick. 

“What happened here was an avoidable tragedy,” Kenneth McClain (one of Wayne’s attorneys) said in a release. “Gilster-Mary Lee knew its own employees in the quality control room were getting sick from popping corn. It was not a long leap to recognize that consumers were also at risk.”

“The punitive award is very significant,” McClain said in the release. “Gilster-Mary Lee is the largest private label popcorn manufacturer in the country and the evidence was that they purposely did not warn consumers about the risk of microwave popcorn.”

3.  Was the jury verdict excessive?  Do you and your friends always agree on everything?  You like a movie, he or she does not; you like ketchup, your friend mustard.  Wayne’s lifetime of problems merit significant compensation, and our civil justice system allows for punitive damages where circumstances align showing us that a wrongdoer knew, should have known, and acted with intentional or reckless disregard for our safety.  The amount of this verdict was determined by a jury that heard all of the facts, listened to all of the arguments by both Wayne’s attorneys and the Gilster attorneys, and neither you nor I can pronounce that the amount of the award was either inadequate or excessive.  That is the beauty of our civil justice system.

Juries can be fooled.  Justice is not always delivered.  I have been an attorney for almost thirty-one years now.  I have seen what I believe to be  “wrong” verdicts and opinions.  What continues to impress me, however, is that the incidence of juries “getting it wrong” is miniscule.  The system does not guarantee the correct result, but the process is designed so beautifully that “wrong” results are extremely rare. 

Before a jury ever gets to decide a case, the trial judge has typically made numerous rulings on a variety of matters, including admission of all types of evidence and what testimonial evidence the jury can hear. If, after the presentation of all of the plaintiff’s evidence, the claim is considered weak, the defendant’s attorney certainly will ask the judge for a dismissal.  There are many lawsuits that get dismissed.  Judges want to be fair and give both sides every reasonable opportunity for their “day in court.” If a claim survives a determined defense attorney’s argument and a judge’s experience and sensitivity to both sides, it means that there is both legal and some factual merit, that is, enough factual merit, to the plaintiff’s case.  In every case, attorneys eventually make “closing arguments” to a jury.  They will argue with all of their considered skill and experience, and hopefully with their passion, for or against their client’s position.  When a jury renders a verdict, it is after weighing all of the evidence, after hearing both parties and their witnesses, and after listening to and weighing both attorneys’ arguments.  It is highly unusual that a jury, after all of this, with all of the checks and balances that attach to the process, that a jury will get it vastly wrong.  In fact, they usually are completely “right.”

Jurors, as a group, when they retire to their private room to decide the case, are very hard to fool.  Maybe one or two of them might be off, but as a group they are not going to miss much.  Jurors rendering verdicts are usually “spot on.”  When those verdicts are in favor of the plaintiff, the amount of damages awarded, including punitive damages, are most often “right.”

Nonetheless, insurance companies, big business, and all of those who want to limit the amount of money wrongdoers should otherwise pay to those they harm, will decry Wayne’s verdict as excessive and that his claim was “frivolous.”  They will use this verdict to suggest that we must “reform” our civil justice system.  They will be, as always, wrong on multiple levels.  The ultimate financial motive of tort “reformers” is disgusting.  If I hurt you, I should be responsible. 

Similar to what happened to Stella Liebeck when she prevailed against McDonald’s, those looking to escape responsibility and their ranks will probably be unaware of the facts here, or they will ignore them.  Either way, they will insult the jurors who decided Wayne’s and Gilster-Mary Lee Corp’s case.  They insult you too, because they want to establish precedent that may harm you, if and when you are injured and want, or need, a jury to address your case.  They insult you because you may well be on a jury.  If you are a juror in the future, will you be fooled?  Will you be able to swallow someone telling you, after you decided the case, that the case was frivolous or that you awarded too much?


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.









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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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