Watson et al v. Dillon Companies, Inc. et al

Filing 653

ORDER granting 651 Defendants' Joint Motion for Leave to File Joint Supplemental Reply to Plaintiff's Opposition to Defendants' Joint Motion to Exclude. By Judge Walker D. Miller on 6/27/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
SENIOR JUDGE WALKER D. MILLER
Civil Action No. 08-cv-00091-WDM-CBS
WAYNE WATSON and
MARY WATSON,
Plaintiffs,
v.
DILLON COMPANIES, INC., d/b/a/ KING SOOPERS, also d/b/a INTER-AMERICAN
PRODUCTS, INC., et al.,
Defendants.1

ORDER ON MOTION TO SUBMIT SUPPLEMENTAL REPLY
Miller, J.
This matter is before me on the Defendants’ Joint Motion for Leave to File Joint
Supplemental Reply to Plaintiff’s Opposition to Defendants’ Joint Motion to Exclude
(ECF No. 651). On the same day that this motion was filed, I issued an order (ECF No.
652) resolving the motions to exclude expert testimony and denying Defendants’ motion
for summary judgment. I will grant the motion but, having considered the evidence
presented, will not modify my order regarding the admissibility of the expert witness
testimony at issue.
In their motion to supplement, Defendants seek to introduce new case law from
the Court of Appeals for the Ninth Circuit in another case involving similar facts and the

1

This case includes a number of third-party and other related litigation. However,
since the motions addressed here concern only the primary parties, I have not included
the related matters in the caption of this order.

same experts whose testimony Defendants sought to exclude here. In the unpublished
decision, Newkirk v. ConAgra Foods, Inc., Case No. 10-35643 (9th Cir., June 17, 2011),
the Ninth Circuit concluded that the district court did not abuse its discretion in excluding
the opinions of Drs. David Egilman and Allen Parmet. The district court in Newkirk
concluded that Dr. Egilman’s opinion that slurry vapors and vapors emitted from popped
microwave popcorn was unsupported. Here, however, there were at least two research
articles offered into evidence showing that the chemicals emitted from popping
microwave popcorn were similar to those found in the air at microwave popcorn plants.
Jacky A. Rosati, et al., Emissions from Cooking Microwave Popcorn, CRIT. REV. IN FOOD
SCI. & NUTRITION, 47, 701 (2007), Exh. 47 to Pls.’ Statement of Facts, ECF No. 602-7;
Roger Pearson, Ph.D, Aspen Research Corp., Evaluation of Microwave Popcorn
Potential to Emit Organic Compounds, Aspen Project No. 34579 (May 5, 2005), Exh. 51
to Pls.’ Statement of Facts, ECF No. 602-11, at 3-4. I have concluded that these form
an adequate basis for Dr. Egilman’s opinion regarding the potential toxicity of
microwave popcorn vapors containing diacetyl. The Newkirk case appears to be
distinguishable from this case because there were issues concerning Mr. Newkirk’s
exposure levels. Here, in contrast, although the evidence is disputed, there were
measurements of Mr. Watson’s exposure to diacetyl from popping a bag of microwave
popcorn by Dr. John Martyny in the Watson home. Therefore, the Ninth Circuit’s
opinion regarding the issues before it do not alter my analysis here.
Accordingly, it is ordered:
1.

Defendants’ Joint Motion for Leave to File Joint Supplemental Reply to
Plaintiff’s Opposition to Defendants’ Joint Motion to Exclude (ECF No.
2

651) is granted.
DATED at Denver, Colorado, on June 27, 2011.
BY THE COURT:

s/ Walker D. Miller
United States Senior District Judge

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