Stults v. Am. Pop Corn Co.

• Citation: 815 F.3d 409
• Decision Date: 04 March 2016
• Docket Number: No. 14–3658.,14–3658.
• Parties: David STULTS; Barbara Stults, Plaintiffs–Appellants v. AMERICAN POP CORN COMPANY; ConAgra Foods, Inc.; General Mills, Inc.; Givaudan Flavors Corporation, Defendants International Flavors & Fragrances, Inc., Defendant–Appellee Sensient Flavors, LLC, Defendant Bush Boake Allen Inc., Defendant–Appellee Symrise Inc.; CHR. Hansen, Inc.; Firmenich, Inc.; John Does 1–20, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

815 F.3d 409

David STULTS; Barbara Stults, Plaintiffs–Appellants

v. AMERICAN POP CORN COMPANY; ConAgra Foods, Inc.; General Mills, Inc.; Givaudan Flavors Corporation, DefendantsInternational Flavors & Fragrances, Inc., Defendant–AppelleeSensient Flavors, LLC, DefendantBush Boake Allen Inc., Defendant–AppelleeSymrise Inc.; CHR. Hansen, Inc.; Firmenich, Inc.; John Does 1–20, Defendants.

No. 14–3658.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 22, 2015.

Filed: March 4, 2016.

Rehearing and Rehearing En Banc Denied April 12, 2016.^*

Kenneth Blair McClain, argued Jonathan M. Soper, on the brief, Independence, MO, for Plaintiffs–Appellants.

Don R. Sampen, argued Chicago, IL, (Edward Kay, Joseph J. Ferrini, Thomas H. Ryerson, Chicago, IL., Jeff William Wright, Sioux City, IA., Michael Alan Holcomb, Earl W. Gunn, Atlanta, GA., on the brief), for Defendant–Appellee.

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

RILEY

, Chief Judge.

David Stults (Stults) consumed one to three bags of microwave popcorn each day for approximately twenty years. In 2009, Stults was diagnosed with the lung disease bronchiolitis obliterans

, which he attributes to his consumption of a chemical used to give the popcorn its butter flavor. In this diversity action, Stults and his wife Barbara (the Stultses), residents of Michigan, sued numerous makers and distributors of microwave popcorn and butter flavoring, alleging their products caused Stults's disease. See 28 U.S.C. § 1332(a)(1). This appeal pertains only to International Flavors & Fragrances, Inc., a New York corporation, and its subsidiary, Bush Boake Allen Inc., a Virginia and New York corporation (collectively, IFF). After a jury found in favor of IFF, the Stultses moved for judgment as a matter of law or a new trial. The district court¹ denied the motions, and the Stultses appeal. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Stults ate a lot of popcorn. For approximately twenty years, he practiced "a ritual of slowly opening the freshly-popped bag as he breathed the aroma in through his nose" one to three times per day. Stults originally estimated he stopped eating popcorn around 2004, but later gave conflicting accounts of his popcorn consumption history. A chemical named diacetyl that IFF once used in a butter flavoring for microwave popcorn has been shown to cause bronchiolitis obliterans

, at least in workers who are exposed to industrial quantities of diacetyl over long durations.

The Stultses sued numerous makers and distributors of microwave popcorn and butter flavoring on theories of strict liability, negligence, and breach of implied warranty under Michigan law. Only the Stultses' breach-of-implied-warranty claim against IFF, with a related loss-of-consortium claim, went to trial. IFF asserted, among others, affirmative defenses of sole proximate cause and fault of others.

At trial, a number of expert witnesses agreed Stults has bronchiolitis obliterans

.

Opinions differed as to whether the condition was caused by diacetyl exposure or an unrelated autoimmune disease

. One of the Stultses' expert witnesses, Dr. David Egilman, testified Stults's bronchiolitis obliterans was caused by his inhalation of microwave popcorn fumes containing diacetyl. Dr. Egilman acknowledged he wrote the only published article supporting the theory that consumers—as opposed to industrial workers—can get bronchiolitis obliterans from diacetyl. The article appeared in a journal he edited.

The Stultses presented testimony from a second witness, Dr. Allen Parmet, an occupational medicine expert who was familiar with bronchiolitis obliterans

among popcorn plant workers. He testified diacetyl was "the most probable cause" of Stults's condition. The Stultses' third expert witness, pulmonologist Dr. Charles Pue, testified Stults "definitely" had enough exposure to diacetyl to cause bronchiolitis obliterans and his condition was "consistent with bronchiolitis obliterans caused by diacetyl."

IFF's theory was that Stults's bronchiolitis obliterans

was caused by a rheumatoid, autoimmune condition unrelated to diacetyl exposure. One of IFF's expert witnesses, Dr. Paul Wolters, testified Stults likely had an autoimmune condition, based on his complaints of several potentially autoimmune symptoms in 2008–2010. Dr. Wolters did not believe diacetyl was the culprit because Stults's symptoms did not develop until several years after he stopped eating microwave popcorn regularly.

IFF also presented evidence from Dr. Richard Meehan, a rheumatologist who testified Stults had rheumatoid arthritis

. Before Dr. Meehan testified, the parties disputed whether Dr. Meehan had considered diacetyl in his differential diagnosis. The district court permitted Dr. Meehan to testify to see if IFF could lay a proper foundation after IFF's counsel averred, "I'm confident you're going to be satisfied." When Dr. Meehan took the stand, he began to testify about articles that had never been provided to the Stultses' counsel and the Stultses' counsel objected. The jury was excused and it came to light that Dr. Meehan had done additional research to prepare for trial unbeknownst to IFF's counsel. The district court said

I think I would be well within my discretion to exclude the witness.... Wouldn't even be a close call. But ... as an alternative to doing that ... his testimony has to be limited to his disclosure report.... And no one can ask him obviously about these additional articles. He can't refer at all to these additional articles. And I know it's virtually impossible, but you have to try and put them out of your head when you answer and try and answer as if it was before you read the articles. You know, it's inhuman to ask that. All I can do is ask you to do the best you can.

Dr. Meehan resumed his testimony before the jury. He testified he had not considered whether diacetyl had caused Stults's bronchiolitis obliterans

because "he had enough criteria of a systemic autoimmune disease that whether or not he used popcorn was really irrelevant." Following this concession that he had failed to conduct a proper differential diagnosis, the district court struck all of Dr. Meehan's testimony. The jury was instructed: "I have just stricken all of Dr. Meehan's testimony. You're not to speculate as to the reason or reasons why. But you are instructed that you have to disregard all of his testimony."

The jury also heard deposition testimony from Dr. Richard Switzer, Stults's primary-care physician since 1993. Stults had reported several potentially rheumatoid symptoms to Dr. Switzer over the years, and Dr. Switzer referred him to a rheumatologist in 2008. Dr. Switzer testified he had no opinion as to whether Stults's diacetyl exposure caused his bronchiolitis obliterans

.

Stults's rheumatologist, Dr. Aaron Eggebeen, described Stults's condition as a non-specified atypical presentation of "a form of rheumatoid lung disease

" or "potentially a connective tissue disease." Stults had alerted him to the potential diacetyl connection, but Dr. Eggebeen could not identify a source of Stults's disease. He testified, "[w]hether or not the diacetyl has anything to do with it, I'm not sure how to judge that."

IFF also presented Dr. Coreen Robbins, an industrial hygienist who testified "consumer exposure to diacetyl from popping microwave popcorn is insignificant." She testified about an "experiment" in which she popped popcorn to see when she could put her nose in the bag, which she determined to be approximately one minute. She also measured the temperature of the air coming out of the bag and determined "[y]ou really can't stick your nose right in it" because it is too hot. The experiment portion of her testimony was stricken and the jury was instructed

there are just too many dissimilarities between what she did and what Mr. Stults was doing. We don't have the same popcorn bags. We don't have the same strength [microwave]. We don't know how long it was cooked for. There's just a whole lot of variables that aren't the same or similar enough to make it admissible evidence.

Following a jury verdict in favor of IFF, the Stultses moved for judgment as a matter of law or a new trial. The Stultses sought a new trial based on Dr. Meehan's and Dr. Robbins's stricken testimony and Dr. Wolters's admitted testimony, arguing the jury was improperly influenced by it despite the limiting instructions. The Stultses based this assertion in part on juror interviews conducted after the trial. The Stultses requested, as an alternative to a new trial, an evidentiary hearing to determine whether juror misconduct occurred. The Stultses argued they were entitled to judgment as a matter of law because "three elements of [their] breach of implied warranty claim were not disputed and should not have been submitted to the jury." Finally, the Stultses asserted they were entitled to judgment as a matter of law because IFF failed to prove its affirmative defenses of sole proximate cause and fault of others. The district court denied the motions, and the Stultses appeal.

II. DISCUSSION

A. New Trial

A new trial may be granted on all or some issues "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A)

. We review the district court's "denial of a new trial for a ‘clear abuse of discretion,’ reversing only ‘to prevent a miscarriage of justice.’ " Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir.2015) (quoting Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 878 (8th Cir.2015) ).

The Stultses assert "the district court erred in denying the Stultses [sic] motion for a new trial because the jury was allowed to hear improper testimony from IFF/BBA'[s] retained experts" and because the verdict was against the weight of the evidence. According to the Stultses, they are entitled to a new trial because " ‘improper questioning by counsel generally entitles...