WATSON v. DILLON COMPANIES, INC.
797 F.Supp.2d 1138 (2011)
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
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.
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.
2. The facts set forth here are taken from the parties' briefs and attached exhibits and are undisputed or, where disputed, presented in the light most favorable to the non-moving party.
3. According to testimony presented at the hearing, the formulae for butter flavoring differ across brands and products but there appear to have been some common ingredients, including diacetyl, during the relevant time period.
4. While mixers at the Jasper plant had a mean area exposure of 37.8 ppm, with a range of 98 ppm, the quality control room had a mean area exposure of 0.6 ppm with a range of 0.9 ppm. Kreiss, supra, ECF No. 600-6, at 165.
5. The stipulated exhibits are set forth in ECF No. 650.
6. As discussed below and as the court in Henricksen noted, the level of exposure of the plaintiff and the dose-response relationship generally is a factor with regard to specific causation, not general causation.
7. Although Defendants suggest that the higher heat used in popping the popcorn could theoretically change the characteristics of the chemicals contained in the slurry, the research does not support this hypothesis.
8. The circumstances regarding Dr. Rose's non-appearance at the hearing are set forth in various motions and orders preceding the hearing. See ECF Nos. 635 & 642.