WATSON v. DILLON COMPANIES, INC.
797 F.Supp.2d 1138 (2011)
Wayne WATSON and Mary Watson, Plaintiffs,
DILLON COMPANIES, INC., d/b/a/ King Soopers, also d/b/a Inter-American Products, Inc., et al., Defendants.1
Civil Action No. 08-cv-00091-WDM-CBS.
United States District Court, D. Colorado.
June 22, 2011.
Kenneth B. McClain, Andrew Kelley Smith, Scott A. Britton-Mehlisch, Steven E. Crick, Steven E. Crick, Humphrey, Farrington & McClain, PC, Independence, MO, for Plaintiffs.
Jason D. Melichar, Suzanne Marie Meintzer, Nelson Levine De Luca & Horst, LLC, Bruce Alford Menk, Darin James Lang, Hall & Evans, LLC, Denver, CO, Kenneth J. Barrish, Scott D. Stephenson, Litchfield Cavo, LLP, Chicago, IL, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO EXCLUDE TESTIMONY
MILLER, Senior District Judge.
This matter is before me on the Joint Motion for Summary Judgment (ECF No. 572) filed by Defendants Dillon Companies, Inc., d/b/a King Soopers, Inter-American Products, Inc., and The Kroger Company (collectively, the "Kroger Defendants"), Gilster-Mary Lee Corporation ("Gilster-Mary Lee") and Birds Eye Foods, Inc., ("Birds Eye"). These Defendants have also filed motions to exclude portions of testimony of Plaintiffs' expert witnesses (ECF Nos. 567, 568, 569, and 570). Plaintiffs Wayne and Mary Watson oppose the motions. A hearing regarding the motions to exclude was held on June 14-15, 2011; witness testimony was presented and exhibits were received into evidence. Upon review of the parties' filings and evidence presented at the hearing, I conclude that no further oral argument is required. For the reasons that follow, the motions to exclude are granted in part and denied in part. The motion for summary judgment will be denied.
This is a personal injury case arising out of Plaintiff Wayne Watson's respiratory disorders, which he contends are the result of inhaling butter flavoring ingredients contained in microwave popcorn. Mr. Watson prepared and consumed two to three bags of butter flavored microwave popcorn at his home daily for approximately seven years (2000-2007). He has been diagnosed with a rare lung condition called bronchiolitis obliterans; this disease and other airway/respiratory conditions have occurred in statistically significant numbers at factories where microwave popcorn is produced.
Mr. Watson purchased and consumed popcorn sold under the labels "Kroger" and "First Choice." He purchased the popcorn at a King Soopers grocery store in his hometown of Centennial, Colorado. Kroger owns and operates King Soopers and other grocery stores. The popcorn was manufactured by Defendants Gilster-Mary Lee and Birds Eye to be sold by the Kroger Defendants under the private store labels; the packaging for the popcorn did not identify the actual manufacturer of the product and contained only the names of the Kroger entities.
Gilster-Mary Lee makes almost half of all private label microwave popcorn sold in the U.S. It began making First Choice brand microwave popcorn before 2000. Birds Eye made two of the Kroger popcorn products until 2003; thereafter, Gilster-Mary Lee acquired Birds Eye's microwave popcorn business and manufactured all of the microwave popcorn products consumed by Mr. Watson.