Watson et al v. Dillon Companies, Inc. et al
ORDER denying 823 Defendants Dillon Companies' Renewed Motion for Judgment as a Matter of Law; denying 824 Defendant Gilster-Mary Lee's Corporation's Renewed Motion for Judgment; and denying 825 Defendants' Motion for Entry of Judgment as a Matter of Law as to Entire Case, or Alternatively, for a New Trial Motion for Judgment as a Matter of Law By Judge Wiley Y. Daniel on 4/10/13.(mjgsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 08-cv-00091-WYD-CBS
WAYNE WATSON and
DILLON COMPANIES, INC., d/b/a KING SOOPERS, also d/b/a INTER-AMERICAN
PRODUCTS, INC., et al.
Plaintiffs Wayne and Mary Watson filed this case against the Defendants, Dillon
Companies, Inc., Gilster-Mary Lee Corporation, Inter-American Products, Inc., and The
Kroger Company (hereinafter “Defendants”), because of Plaintiff Wayne Watson’s
respiratory disorders, which he contends are the result of inhaling a butter flavoring
compound known as diacetyl contained in microwave popcorn manufactured and
distributed by the Defendants.
After lengthy pretrial motions practice, settlement discussions, expert witness
challenges, discovery and other legal wrangling and delays by the parties, this case
finally went to trial on September 4, 2012. On September 19, 2012, the jury reached its
verdict, awarding the Plaintiffs more than seven million dollars in damages. Specifically,
the jury awarded Plaintiff Wayne Watson $667,961in damages for economic losses
excluding any damages for physical impairment; $1,000,000 in damages for non-
economic losses or injuries excluding damages for physical impairment; and $450,000
in damages for physical impairment. The jury apportioned fault as follows: 5% charged
to Defendant Dillon Companies; 15% charged to Defendant The Kroger Co.; and 80%
charged to Defendant Gilster-Mary Lee Corp. The jury also awarded Plaintiff Wayne
Watson $5,000,000 in punitive damages. The jury further awarded Plaintiff Mary
Watson $100,000 in damages for her loss of consortium claim.
On September 26, 2012, Judgment was entered against the Defendant Dillon
Companies in the amount of $33,398.05 (.05 x $667,961.00) for Plaintiff Wayne
Watons’s economic losses, in the amount of $50,000.00 (.05 x $1,000,000.00) for
Plaintiff Wayne Watson’s non-economic losses, in the amount of $22,500.00 (.05 x
$450,000.00) for Plaintiff Wayne Watson’s physical impairment, and in the amount of
$5,000.00 (.05 x $100,000.00) for Plaintiff Mary Watson’s loss of consortium claim.
Judgment was also entered against Defendant The Kroger Co. in the amount of
$100,194.15 (.15 x $667,961.00) for Plaintiff’s economic losses, in the amount of
$150,000.00 (.15 x $1,000,000.00) for Plaintiff’s non-economic losses, in the amount of
$67,500.00 (.15 x $450,000.00) for Plaintiff’s physical impairment, and in the amount of
$15,000.00 (.15 x $100,000.00) for Plaintiff Mary Watson’s loss of consortium claim.
Judgment was entered against Defendant Gilster-Mary Lee Corporation in the
amount of $534,368.80 (.80 x $667,961.00) for Plaintiff’s economic losses, in the
amount of $800,000.00 (.80 x $1,000,000.00) for Plaintiff’s non-economic losses, in the
amount of $360,000.00 (.80 x $450,000.00) for Plaintiff’s physical impairment, in the
amount of $5,000,000 for punitive damages, and in the amount of $80,000.00 (.80 x
$100,000.00) for Plaintiff Mary Watson’s loss of consortium claim.
The Judgment also ordered that post-judgment interest shall accrue on the total
amount of $7,217,961at the legal rate of .18% per annum from the date of entry of
After the entry of judgment, the parties collectively filed five post-trial motions to
alter or amend the Judgment, for a new trial, or for judgment as a matter of law.
Additionally, Plaintiffs filed a separate motion for attorney fees and costs. After
reviewing all of the relevant pleadings and the pertinent record, I determine that oral
argument is unnecessary on the motions for judgment as a matter of law. Applying the
appropriate legal standards, I address them below. The remaining post-trial motions will
be heard at the hearing set for April 18, 2013.
MOTIONS FOR JUDGMENT AS A MATTER OF LAW OR FOR A NEW TRIAL
At the close of the evidence, Defendants moved orally to dismiss both Plaintiffs’
CCPA and punitive damages claims as a matter of law pursuant to Fed. R. Civ. P.
50(a). (Trial Tr. 1532-1537). First, Defendants argued that Plaintiffs could not establish
public harm under the CCPA, which is one of the elements of the claim submitted to the
jury. Specifically, Defendants asserted that there was no evidence that any person in
the public sector, other than Wayne Watson, was damaged by the delivery of
microwave popcorn containing diacetyl into the stream of commerce. Second,
Defendants argued that there was no basis for them to have known that consumers
could ever be at risk from microwave popcorn containing diacetyl when “there is such
an avalanche of information to the contrary.” (Trial Tr. 1533:16-25). Thus, “there is
absolutely not a shred of evidence that would support the notion that [the Defendants’]
conduct was made knowingly or willfully or with reckless and wanton disregard for the
rights and feelings of the plaintiff.” (Trial Tr. 1534:3-10). I denied the motions in open
court, and the case was presented to the jury. As I previously stated, the jury returned a
verdict for the Plaintiffs.
In the pending motions before me, Defendants renew their motions for judgment
as a matter of law pursuant to Fed. R. Civ. 50(b). As an alternative, Defendants request
a new trial based on their arguments that the jury award was excessive contrary to the
weight of the evidence.
Standard of Review
As a threshold matter, a renewed motion under Fed. R. Civ. P. 50(b) cannot
contain grounds for relief not asserted in the original Fed. R. Civ .P. 50(a) motion. See
Anderson v. United Tel. Co., 933 F.2d 1500, 1503 (10th Cir. 1991). To find otherwise
would be to contravene the purposes of Fed. R. Civ. P. 50(a). Miller v. Eby Realty
Group LLC, 396 F.3d 1105, 1115 (10th Cir. 2005). Accordingly, I refuse to entertain any
arguments not contained in the original motions for judgment as a matter of law.
Accordingly, I address only those arguments previously broached concerning Plaintiffs’
CCPA claim, Plaintiffs’ punitive damages claim, and the issue of causation.
A renewed motion for judgment as a matter of law post-verdict is determined
under the same standards as govern resolution of a post-evidentiary motion for
judgment as a matter of law under Fed. R. Civ. P. 50(a). Motions under Fed R. Civ. P.
50(b) “should be cautiously and sparingly granted.” Lucas v. Dover Corp., 857 F.2d
1397, 1400 (10th Cir. 1988) (citations omitted). I cannot pass judgment on the
credibility of witnesses or substitute my judgment for that of the jury. See Hinds v.
General Motors Corp., 988 F.2d 1039, 1045 (10th Cir. 1993). Judgment as a matter of
law is appropriate “only where the proof is all one way or so overwhelmingly
preponderant in favor of the movant so as to permit no other rational conclusion.” Id.
Plaintiffs’ CCPA Claim
Defendants argue that at trial, Plaintiffs failed to produce sufficient evidence upon
which a reasonable jury could find a deceptive trade practice or a significant public
impact as required by the CCPA. Defendants previously argued and argue now that
Plaintiffs failed to show: (1) that Defendants knew of any potential harm to the public
posed by the consumption of microwave popcorn containing the chemical diacetyl and
(2) that Defendants’ trade practices affected other consumers or posed a risk of harm to
The jury found that the Defendants violated the Colorado Uniform Deceptive
Trade Practices Act by failing to give Plaintiff Wayne Watson and other consumers
adequate warnings on their microwave popcorn products containing diacetyl. Colo.
Rev. Stat. § 6-1-105 of the Colorado Consumer Protection Act or “CCPA” provides:
1) A person engages in a deceptive trade practice when, in the course of
such person's business, vocation, or occupation, such person:
(e) Knowingly makes a false representation as to the characteristics,
ingredients, uses, benefits, alterations, or quantities of goods, food,
services, or property or a false representation as to the sponsorship,
approval, status, affiliation, or connection of a person therewith;
(g) Represents that goods, food, services, or property are of a particular
standard, quality, or grade, or that goods are of a particular style or model,
if he knows or should know that they are of another;
(u) Fails to disclose material information concerning goods, services, or property
which information was known at the time of an advertisement or sale if such
failure to disclose such information was intended to induce the consumer to enter
into a transaction;
At trial, the jury heard testimonial evidence that microwave popcorn plants owned
by the Defendants had been investigated by NIOSH, a division of the Centers for
Disease Control. NIOSH found and published reports on lung disease found among the
workers exposed to diacetyl. Additionally, expert witnesses testified that exposure to
diacetyl vapors causes lung disease in both plant workers and consumers. There was
also testimony that billions of bags of microwave popcorn containing diacetyl were sold
to the public from approximately the mid-1980s until Defendants removed diacetyl from
their products in 2008. Furthermore, Dr. Egilman, Plaintiffs’ expert witness, opined that
diacetyl causes bronchiolitis obliterans in some individuals, referencing studies and
agencies that have drawn the same conclusions. Other witnesses, including
Defendants’ expert, Dr. Kulig, testified that the Defendants were aware of several other
consumer cases (other than Plaintiff Wayne Watson’s) where diacetyl was alleged to
have caused injury.
Defendants repeatedly underscore that the evidence presented to the jury was
limited to what happens in a popcorn plant setting where workers were exposed to
much higher levels of diacetyl than a consumer would be in his or her own kitchen.
Thus, Defendants could not have known that consumers were at risk.
I find that conflicting evidence was presented, and I am not free to adjudge the
credibility of witnesses or to substitute my judgment for that of the jury. From the
evidence presented, a reasonable jury could conclude that the Defendants knew about
the risk posed to consumers from the diacetyl in their microwave popcorn products,
failed to warn consumers about that risk, and that a significant number of consumers
would be affected since billions of bags of microwave popcorn were placed into the
stream of commerce. Because there was sufficient evidence to support the conclusion
that Defendants engaged in deceptive trade practices under the CCPA, the Defendants’
motion for judgment as a matter of law must be denied.
Plaintiffs’ Punitive Damages Claim
Related to the CCPA claim, Defendants previously argued and argue now that
Plaintiffs’ punitive damages claim must be dismissed because there was insufficient
evidence to establish that Plaintiff Wayne Watson’s injury was due to wilful or wanton
conduct. Colorado law defines “willful and wanton conduct” as “conduct purposefully
committed which the actor must have realized as dangerous, done heedlessly and
recklessly, without regard to consequences or of the rights and safety of others,
particularly the plaintiff. Colo. Rev. Stat. § 13-21-102(1)(b).
As set forth in the previous section, the jury heard conflicting evidence that
diacetyl causes lung injury in consumers and whether the Defendants had knowledge of
this risk. Plaintiff’s expert witness, Dr. Cecile Rose, testified that she informed various
government agencies that she suspected a causal connection between consumer
popcorn consumption and lung disease. Other expert witnesses testified about studies
and other consumer cases to support this causal nexus. Again, I find that a reasonable
jury could conclude that the Defendants knew about the risk posed to consumers from
the diacetyl in their microwave popcorn products, and that this conduct could be
construed as willful and wanton. Defendants have failed to show that the evidence is all
one way or so overwhelmingly preponderant in their favor so as to permit no other
rational conclusion. See Hinds, 988 F.2d at 1045. Thus, the motion for judgment as a
matter of law is denied with respect to the punitive damages claim.
Finally, Defendants move for judgment as a matter of law, arguing that Plaintiffs
failed to introduce evidence establishing what level of diacetyl exposure is necessary
before it can cause injury and that the expert testimony of Dr. Egilman should have
By way of background, I note that this issue was the subject of much pretrial
litigation. The Court considered multiple motions for summary judgment and motions to
exclude testimony along with holding three pretrial Daubert hearings involving causation
issues. Before this matter was ultimately transferred to me, in June, 2001, the late
Senior District Judge Walker D. Miller convened a two-day Daubert hearing where he
heard testimony from five expert witnesses along with argument on the motions for
summary judgment. On April 18, 2012, I held a second Daubert hearing where I heard
Dr. Rose’s opinions. The expert witness opinions were all ultimately held to be
admissible at trial subject to the exclusion of limited portions of Dr. Egilman’s opinions
regarding the minimum exposure of diacetyl that will trigger respiratory problems. See
Judge Miller’s Order at 25-26, ECF No. 652.
Finally, in light of a recent Tenth Circuit opinion involving issues surrounding
Daubert challenges of expert testimony in a product liability case, on the first and
second days of trial, I held a final Daubert hearing on the issues of causation. See
Hoffman v. Ford Motor Co., No. 10-1137, 2012 WL 3518997 (10th Cir. August 16, 2012)
(reversing the jury’s verdict for plaintiff and remanding the case for entry of judgment in
favor of the defendant based on the district court’s erroneous admission of expert
Causation in toxic tort cases is discussed in terms of general causation and
specific causation. Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir.
2005). “General causation is whether a substance is capable of causing a particular
injury or condition in the general population and specific causation is whether a
substance caused a particular individual's injury. Plaintiff must first demonstrate general
causation because without general causation, there can be no specific causation.” Id.
In other words, here, if microwave butter-flavored popcorn containing diacetyl is
incapable of causing lung disease in consumers, then, the Defendants’ popcorn could
not have caused Plaintiff Wayne Watson’s lung injuries.
For reasons stated on the record in detail on the first and second days of trial ,
after hearing testimony from Plaintiffs’ expert witness, Dr. Egilman, I rejected
Defendants’ arguments and concluded that his opinions on general and specific
causation were admissible under Daubert. (Trial Tr. 223-235, September 5, 2012). Dr.
Egilman testified that vapors from diacetyl can be harmful and provided a relevant and
reliable basis for this opinion. Now, after reviewing the trial testimony, Judge Miller’s
prior Order, and all other pertinent documents, I reject Defendants’ renewed arguments
regarding causation once again. Defendants provide me with no reason to deviate from
my prior rulings. After thoroughly and thoughtfully considering this issue, I find that
there was sufficient evidence presented through the testimony of the various expert
witnesses to establish both general and specific causation. In other words, based on
the evidence presented, I find that a reasonable jury could find that diacetyl was
capable of causing lung disease in consumers such as Plaintiff Wayne Watson.
Defendants’ motion for judgment as a matter of law as to this issue is denied.
Request for a new trial
In a brief paragraph at the end of each motion for judgment as a matter of law,
Defendants urge, in the alterative, if they are not entitled to judgment as a matter of law,
they are entitled to a new trial based on insufficiency of the evidence. Defendants base
this request on the grounds stated in their three motions for judgment as a matter of
law, which I thoroughly addressed in this Order. For reasons clearly detailed above, I
denied Defendants’ three motions for judgment as a matter of law.
When a case has been tried to a jury, a new trial may be granted “for any of the
reasons for which new trials have heretofore been granted in actions at law in the courts
of the United States.” Fed. R. Civ. P. 59(a)(1)(A). A motion for new trial “is not
regarded with favor and should only be granted with great caution.” United States v.
Kelley, 929 F.2d 582, 586 (10th Cir. 1991). The decision whether to grant a new trial is
committed to the sound discretion of the trial court. Id .
In ruling on a motion for a new trial, the trial judge has broad discretion.
He has the obligation or duty to ensure that justice is done, and, when
justice so requires, he has the authority to set aside the jury's verdict. He
may do so when he believes the verdict to be against the weight of the
evidence or when prejudicial error has entered the record.
McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir. 1990)
(internal citations omitted).
In support of this request, Defendants incorporate by reference all three of their
motions for judgment as a matter of law and argue that there is no evidence to support
the conclusions that the Defendants violated the CCPA, acted wilfully and wantonly or
that diacetyl caused Plaintiff Wayne Watson’s lung injury. “Where a new trial motion
asserts that the jury verdict is not supported by the evidence,” the evidence must be
considered in the light most flattering to the prevailing party, and “the verdict must stand
unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.”
Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999) (internal quotations
and citations omitted). Having reviewed and analyzed the arguments, the applicable
law, and the record as set forth above in my rulings denying the motions for judgment
as a matter of law, I deny the alternative request for a new trial. Defendants’ motion for
a new trial is denied.
Based on the foregoing, it is
ORDERED that Defendants Dillon Companies’ Renewed Motion for Judgment as
a Matter of Law or in the Alternative Motion for a New Trial on Plaintiffs’ Colorado
Consumer Protection Act Claim (ECF No. 823) is DENIED. It is
FURTHER ORDERED that Defendant Gilster-Mary Lee’s Corporation’s Renewed
Motion for Judgment as a Matter of Law or in the Alternative Motion for a New Trial on
Plaintiffs’ Award of Punitive Damages (ECF No. 824) is DENIED. It is
FURTHER ORDERED that Defendants’ Motion for Entry of Judgment as a
Matter of Law as to Entire Case, or Alternatively, for a New Trial, Based on Evidentiary
Flaws Pertaining to Causation and Improperly Admitted Evidence of Prior Injuries (ECF
No. 825) is DENIED.
Dated: April 10, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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