‘Popcorn lung’ claims filed in Wisconsin

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Two food factory workers in Wisconsin recently filed claims alleging work-related lung damage popularly known as “popcorn lung.”

There may be other potential plaintiffs, but they will have to move fast if they are to join a long line of creditors trying to get money from bankrupt chemical company Chemtura Corp.

Wisconsin became the latest battleground in the popcorn lung litigation with the Sept. 1 and Aug. 10 filing, respectively, of Lindal Anderson v. Aldrich Chemical Co. and Richard Smead v. CHR. Hansen Inc.

Both plaintiffs worked at the IFF International Flavors & Fragrances facility in Menomonee Falls. They’re now disabled, according to their lead attorneys, Kenneth B. McClain and Steven E. Crick, of Humphrey, Farrington & McClain P.C. in Independence, Mo.

McClain and Crick have filed approximately 300 other similar cases in 13 states, including Missouri.

They anticipate a trial before Waukesha County Circuit Court Judge Ralph M. Ramirez within the next year or so.

Smead’s case named 18 defendants, seven of which have been dismissed. Anderson has sued 11 defendants, all of whom remain in the case.

The defendants in both cases are the manufacturers and distributors of a butter flavor ingredient used in microwave popcorn and other foods. The plaintiffs claim that the ingredient, diacetyl, causes airway damage and can lead to a rare, life-threatening lung disorder, bronchiolitis obliterans.

Chemtura Canada Co./Cie is a defendant in both cases, explained McClain. Its Connecticut-based distributor, Chemtura, filed for bankruptcy in March, and a bankruptcy judge has set an Oct. 30 cutoff date for claims.

Despite the bankruptcy, recovery is possible from the Canadian business, although McClain anticipates there will be motions addressing whether the Wisconsin court has jurisdiction.

Michael K. Scott, of Davis & Kuelthau S.C. (http://www.dkattorneys.com/) in Milwaukee is local counsel for Chemtura Corp., which is a defendant in the Smead case.

He told the Wisconsin Law Journal that because of the automatic stay, he’s been instructed not to work on the matter and hasn’t yet investigated the merits of the plaintiffs’ claim.

Attorneys for the other defendants, which include the firms Kasdorf, Lewis & Swietlik and Otjen, Van Ert & Weir SC in Milwaukee, similarly declined to comment.

Big verdicts

McClain and Crick have successfully litigated popcorn lung cases before — they obtained a $20 million verdict in 2004 and a $15 million verdict in 2005. Their most recent victory was a $7.5 million verdict earlier this year in Kuiper v. Givaudin Flavors, after an 11-day trial in Iowa federal court.

Six other cases have settled, McClain said.

What makes diacetyl so dangerous, according to McClain and Crick, is that it’s a ketone, similar to paint stripper, and the safe levels of exposure, if any, are unknown.

“If you put people in space suits 100 percent of the time, it can be worked with safely. The problem is, we don’t know what a safe level of exposure is, and it’s impractical to put people in masks around the clock,” said McClain. “Workers don’t wear them; they’re hot and uncomfortable.”

Artificial butter flavor has been used in microwave popcorn for at least two decades now, he noted. But in the 1990s, the formula was changed to increase the amount of diacetyl.

“There have always been exposures that have caused some disease,” said McClain, “but the number of persons affected was not large enough for it to be detected, until the advent of modern diacetyl flavoring, where we got a population large enough to be diagnosed.”

The condition is easily misdiagnosed, he noted, especially if the patient is a smoker.

Although most plaintiffs are food industry workers, McClain and Click do have a handful of consumer cases as well, where their clients had a tendency to consume two or three bags of popcorn per day.

The previous verdicts have been high because they involved relatively young plaintiffs who will never be able to work again, and their future medical expenses are significant — typically a lung transplant is needed if a plaintiff is going to survive.

In addition, the quality of their daily lives has been seriously diminished, and they often need pulmonary rehabilitation to keep from deteriorating even further.

McClain and Crick have appeared on news programs on CBS, CNN and MSNBC and were interviewed for an article in USA Today about their popcorn lung cases, which they began accepting in 2001.

The Obama Administration has taken an interest in regulating diacetyl. On April 10, Department of Labor Secretary Hilda L. Solis announced an intention to fast-track proposed regulations for occupational exposure to food flavorings that cover diacetyl.

Timothy S. Trecek, of the Milwaukee office of Habush, Habush & Rottier SC is local counsel for the plaintiffs. He suggested that these cases could “send a message” to food additive manufacturers.

“It’s a true injustice when simply going to work to support one’s self and one’s family causes these workers to be stricken by a debilitating condition that, through no fault of their own, has grave health consequences,” said Trecek. “These cases will send a message … that in Wisconsin, the safety of workers and consumers should come before corporate profits.”

Heather Cole of Missouri Lawyers Weekly contributed to this article.