A controversial expert witness for plaintiffs has filed an unusual non-party appeal of a Washington state judge's decision finding his theory that snackers can contract lung disease from exposure to microwave popcorn is not scientifically sound.

Dr. David Egilman

Dr. David Egilman, an associate professor of community health at Brown University, has made millions from testifying as an expert witness in about 100 personal injury cases. His non-party appeal challenges a July 2 ruling in the case of a Spokane, Wash., man who sued several companies involved in the making of microwave popcorn or its butter flavoring.

Granting summary dismissal of the case, U.S. District Judge Rosanna Malouf Peterson shredded Egilman's testimony that Larry Newkirk “within a reasonable degree of medical certainty developed lung disease as a result of inhaling flavors released by microwaved popcorn.”

“[T]here is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals [as those emitted in popcorn factories] or that all of the substances in the two instances are identical,” Peterson said.

Newkirk and his wife have appealed the decision. More unusually, so has Egilman.

A non-party to a lawsuit who has “an interest in the cause litigated and participated in the proceedings actively enough to make him privy to the record” may appeal a court's order or judgment. But there is no precedent for a non-party appeal by an expert witness — and Egilman does not appear to be so affected by Peterson's ruling that he has standing to appeal it.

Newkirk's case is one of five around the country (see table) in which microwave popcorn consumers claim they suffer from a rare condition called bronchiolitis obliterans — or “popcorn lung” — because of their exposure to microwave popcorn.

Scientific studies have shown a connection between lung disease in popcorn factory workers and factory-floor levels of diacetyl, a flavoring agent used to make popcorn taste buttery. In 2004, a Missouri jury awarded $20 million to a worker who was exposed to diacetyl vapors.

Egilman is the leading proselytizer for a connection between lung disease in popcorn consumers and diacetyl vapors released by opening a bag of microwave popcorn. “There is no important (medically relevant) qualitative difference,” he testified in Newkirk's case,

between the vapor from butter flavoring slurry in a mixing vat and the vapor from butter flavoring slurry that is emitted from microwave popcorn that would allow any inference that chemical emitted from popped corn would neutralize the effects of diacetyl and other lung toxins that are emitted from MWPC [microwave popcorn] vapors.

Newkirk says he ate between five to seven bags of microwave popcorn each day for about 11 years.

But Judge Peterson found Egilman's testimony was not admissible since, among other things, he had manipulated data from published studies “to reach misleading conclusions of his own” and “fail[ed] to apply reliable scientific methods.” “The bulk of Dr. Egilman’s conclusions do not rise above 'subjective belief or unsupported speculation,'” she concluded.

By filing a non-party appeal, Egilman is trying to take advantage of an exception to the general rule of appellate standing. “It is indeed well settled that generally speaking no person, not a party to a suit, may appeal,” Judge Learned Hand noted in West v. Radio-Keith Orpheum Corp., 70 F.2d 621 (1934).

“The reason for this,” he continued, “is that if not a party, the putative appellant is not concluded by the decree, and is not therefore aggrieved by it. But if the decree affects his interests, he is often allowed to appeal.”

Appeals courts, however, have only allowed non-party standing where, for example, the non-party has a direct financial interest in the outcome of a case. In Curtis v. City of Des Moines, 995 F.2d 125 (1993), the 8th U.S. Circuit Court of Appeals said a couple who prevailed in a lawsuit against an alleged rapist had standing to appeal a ruling in the rapist's civil-rights suit against police officers who arrested him.

“[W]hen courts have permitted a non-party to appeal, they have repeatedly emphasized the impact of the appeal on the non-party and the necessity of granting the appeal to preserve that non-party's rights,” the 4th Circuit said in Davis v. Scott, 176 F.3d 805 (1999).

Egilman, obviously, has a lucrative interest in protecting his career as an expert witness. In a product liability case involving the arthritis drug Vioxx, he testified in 2005 that he had earned between $2 million and $2.5 million for his expert testimony over the previous 25 years.

But Newkirk's appeal will provide more than adequate review of Judge Peterson's ruling. And if the 9th Circuit was to find Egilman has the requisite “interest in the cause litigated,” the appeals courts could be clogged with expert witnesses aggrieved with trial court judges.

Phil Talmadge, a high-powered appellate lawyer and former Washington state Supreme Court justice, is representing Egilman, who was previously rebuked for "irresponsible conduct" by a New York judge for leaking confidential documents in a product liability case to a reporter.

In another case in which Egilman testified, a Missouri jury last month found ConAgra Foods was not liable for the damaged lungs of a woman who prepared and ate microwave popcorn while working at Blockbuster video stores. Elaine Khoury's was the first — and possibly last — microwave popcorn consumer case to go to trial.

By Matthew Heller
8/8/10