Expert Witness in Unsuccessful 'Popcorn Lung' Case Files Appeal of His Own
Via this post on OnPointNews, I came across a case pending in federal court in Spokane, Wash. today that brings several interesting things to the table.
1. The plaintiff, Larry Newkirk, developed a rare lung disease called bronchiolitis obliterans. Newkirk sued Conagra Foods and other defendants claiming that his condition was "popcorn lung" caused by his eating "between five to seven bags of microwave popcorn each day for about 11 years."
2. Newkirk hired an expert witness, Dr. David Egilman, who testified that Newkirk “within a reasonable degree of medical certainty developed lung disease
as a result of inhaling flavors released by microwaved popcorn.” Egilman, an associate professor at Brown University, is said to be the the leading voice for a connection between lung disease in
popcorn consumers and diacetyl vapors released by opening a bag of
3. U.S. District Judge Rosanna Malouf Peterson was not swayed by Egilman's testimony in the least, granting summary dismissal of the case in favor of defendants and finding that “[T]here
is nothing to support Dr. Egilman’s conclusion that is at the heart of
this case: that the vapors emitted from a microwave popcorn bag contain
the same proportion of chemicals [as those emitted in popcorn factories]
or that all of the substances in the two instances are identical.” The judge added that Egilman reached "misleading conclusions" and failed to apply "reliable
4. While Newkirk and his wife have appealed Peterson's decision, so has Egilman. This raises an interesting issue of when a non-party such as Egilman may appeal a ruling. As analyzed by OnPointNews,
non-party to a lawsuit who has “an interest in the cause litigated and
participated in the proceedings actively enough to make him privy to the
record” may appeal a court's order or judgment. But there is no
precedent for a non-party appeal by an expert witness -- and Egilman does
not appear to be so affected by Peterson's ruling that he has standing
to appeal it.
OnPointNews adds that the key question for Egilman's appeal would appear to be whether his interest in protecting his career as an
expert witness is enough of an “interest in the cause litigated” to allow an appeal as a non-party under federal law.
Posted by Bruce Carton on August 9, 2010 at 02:05 PM | Permalink
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