Date: 09-20-2012

Case Style: Wayne Watson v. Dillon Companies

Case Number: 1:08-cv-00091-WYD-CBS

Judge: Wiley Y. Daniel

Court: United States District Court for the District of Colorado, Denver County

Plaintiff's Attorney: Kenneth B. McClain, Andrew Kelley Smith, Scott A. Britton-Mehlisch, Steven E. Crick

Defendant's Attorney: Brett Marshall Grodfrey, Jason D. Melichar, Paul Joseph Rupprecht, Suzanne Marie Meintzer for Dillon Companies, Inc. and Kroger

Fredrick J. Ludwig, Richard Henry Kuhlman, Ronald B. Lee, Lisanne Newell Leasure and Moria H. Pietrowski and Jeffrey Douglas Whitney for Flavor Concepts, Inc.

Description: Wayne Watson and Mary Watson sued Gilster-Mary Lee Corp., The Kroger Co., Dillon Companies and FONA International, Inc.on products liability theory claiming that he developed "popcorn lung" from consuming butter favored microwave popcorn containing diacetyl, which has been associated with obstructive lung disease from exposure over a long period time. Plaintiff claimed that Defendants failed to warn him that excessive exposure to the chemical in the popcorn could cause him to suffer from permanent lung function loss.

Dillon Company, Inc. does business as King Soopers and Inter-American-Products, Inc.

The Kroger Company does busienss as Inter-American Products, Inc. and Dillon Companies, Inc.

Mr. Watson apparently loved to eat popcorn and consumed two bags or so every day for ten years.

The defenses asserted by Defendants are not available.

Court Trial Notes:

09/03/2012 778 MOTION to Dismiss Defendant Birds Eye by Plaintiffs Mary Watson, Wayne Watson. (Attachments: # 1 Exhibit Joint Stipulation for Dismissal, # 2 Proposed Order (PDF Only) Proposed Order of Dismissal for Birds Eye)(Smith, Andrew) (Entered: 09/03/2012)

09/03/2012 779 OBJECTIONS to 731 MOTION in Limine to Exclude Plaintiffs' Exhibit 350 Article Defendants' Highlighted Objections to Statements in Plaintiffs' Exhibit 1346 (Formerly Exhibit 350) - Egilman-Schilling Article by Defendant Dillon Companies, Inc.. (Attachments: # 1 Exhibit Ex. A)(Godfrey, Brett) (Entered: 09/03/2012)

09/04/2012 780 Exhibit List Plaintiffs' Second Amended Exhibit List by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) (Entered: 09/04/2012)

09/04/2012 782 MINUTE ENTRY for Jury Trial (Day 1) held on 9/4/2012 proceedings held before Chief Judge Wiley Y. Daniel. Granting in part and denying in part 770 Motion to Strike. Court Reporter: Tammy Hoffschildt. (Attachments: # 1 Jury Strike Sheet) (wydcd, rrk) (Entered: 09/07/2012)

09/05/2012 785 MINUTE ENTRY for Jury Trial (Day 2) held on 9/5/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/10/2012)

09/06/2012 781 ORDER granting 778 Motion to Dismiss With Prejudice All Claims Against Defendant Birds Eye Foods, Inc. Each party to pay its own attorney fees and costs by Chief Judge Wiley Y. Daniel on 09/06/12.(jjhsl, ) (Entered: 09/06/2012)

09/06/2012 786 MINUTE ENTRY for Jury Trial (Day 3) held on 9/6/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/10/2012)

09/07/2012 783 MOTION in Limine Requesting Judicial Notice by Defendants Dillon Companies, Inc., Gilster-Mary Lee Corporation, Inter-American Products, Inc., Kroger Co., The. (Godfrey, Brett) (Entered: 09/07/2012)

09/07/2012 789 MINUTE ENTRY for Jury Trial (Day 4) held on 9/7/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/11/2012)

09/10/2012 784 Expert Witness Designation to Include Undesignations of Innova Monitor or Real-time Analyzer Information in Dr. Martyny's Deposition by Defendant Dillon Companies, Inc.. (Attachments: # 1 Exhibit Ex. A)(Godfrey, Brett) (Entered: 09/10/2012)

09/10/2012 800 MINUTE ENTRY for Jury Trial (Day 5) held on 9/10/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/13/2012)

09/11/2012 787 BRIEF in Opposition to 783 MOTION in Limine Requesting Judicial Notice filed by Plaintiffs Mary Watson, Wayne Watson. (Attachments: # 1 Exhibit Exhibit "A" Complaint, # 2 Exhibit Exhibit "B" Deposition Excerpt, # 3 Exhibit Exhibit "C" June 30, 2010 Order)(Smith, Andrew) (Entered: 09/11/2012)

09/11/2012 788 Expert Witness Designation to Include Undesignations of Innova Monitor or Real-time Analyzer Information in Mr. Bacci's Video Preservation Deposition. by Defendants Dillon Companies, Inc., Gilster-Mary Lee Corporation, Inter-American Products, Inc., Kroger Co., The. (Attachments: # 1 Envelope A)(Godfrey, Brett) (Entered:
09/11/2012)

09/11/2012 790 BRIEF Plaintiffs' Objection to Defendants' Designations of the Testimony of John Martyny by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) (Entered: 09/11/2012)

09/11/2012 801 MINUTE ENTRY for Jury Trial (Day 6) held on 9/11/2012 proceedings held before Chief Judge Wiley Y. Daniel. Deferring ruling on 783 Motion in Limine. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/14/2012)

09/12/2012 791 Expert Witness Designation through Incorporation of Plaintiffs' Counter Designations and Objections and Corrections to Dr. Balkissoon's Video Deposition by Defendant Dillon Companies, Inc.. (Attachments: # 1 Exhibit Exhibit)(Godfrey, Brett) (Entered: 09/12/2012)

09/12/2012 792 STRICKEN MOTION in Limine Plaintiffs' Motion to Exclude All Evidence of and References to NIOSH Method 2557 by Plaintiffs Mary Watson, Wayne Watson. (Attachments: # 1 Exhibit "A", # 2 Exhibit "B", # 3 Exhibit "C", # 4 Exhibit "D", # 5 Exhibit "E", # 6 Exhibit "F", # 7 Exhibit "G")(Smith, Andrew) Modified on 9/17/2012 to strike pursuant to the minutes (jjhsl, ). (Entered: 09/12/2012)

09/12/2012 793 MOTION to Amend/Correct/Modify Exhibit "B" of Document No. 792 by Plaintiffs Mary Watson, Wayne Watson. (Attachments: # 1 Exhibit Corrected Exhibit "B" to Doc. #792)(Smith, Andrew) (Entered: 09/12/2012)

09/12/2012 794 SUPPLEMENT/AMENDMENT Plaintiffs' Supplemental Objections to Defendants' Designations of the Testimony of John Martyny by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) (Entered: 09/12/2012)

09/12/2012 795 OBJECTIONS to Re-Designation of Testimony of Dr. Balkissoon, and Counter-Designations and Deletions to the Re-Designation of Testimony of Dr. Balkissoon by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) (Entered: 09/12/2012)

09/12/2012 796 OBJECTIONS to Re-Designation of Testimony of Mr. Bacci, and Plaintiffs' Counter-Designations and Deletions to the Re-Designation of Testimony of Mr. Bacci by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) (Entered: 09/12/2012)

09/12/2012 797 TRIAL BRIEF Plaintiffs' Objections to all Evidence and References to NIOSH Method 2557 by Plaintiffs Mary Watson, Wayne Watson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Smith, Andrew) (Entered: 09/12/2012)

09/12/2012 798 STRICKEN TRIAL BRIEF Plaintiffs' Bench Brief Regarding Kenneth Kulig M.D.'s Causation Opinions by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) Modified on 9/17/2012 to strike pursuant to the minutes of
09/12/12 (jjhsl, ). (Entered: 09/12/2012)

09/12/2012 799 Exhibits in Support of 798 Trial Brief by Plaintiffs Mary Watson, Wayne Watson. (Attachments: # 1 Exhibit B, # 2 Exhibit C)(Smith, Andrew) (Entered: 09/12/2012)

09/12/2012 803 MINUTE ENTRY for Jury Trial (Day 7) held on 9/12/2012 proceedings held before Chief Judge Wiley Y. Daniel. Striking 792 Motion in Limine. Striking 798 Plaintiffs Bench Brief Regarding Kenneth Kulig, M.D.s Causation Opinions. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/17/2012)

09/13/2012 805 MINUTE ENTRY for Jury Trial (Day 8) held on 9/13/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/19/2012)

09/14/2012 806 MINUTE ENTRY for Jury Trial (Day 9) held on 9/14/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/19/2012)

09/17/2012 802 MOTION for Directed Verdict Plaintiffs' Motion for Directed Verdict by Plaintiffs Mary Watson, Wayne Watson. (Smith, Andrew) (Entered: 09/17/2012)

09/17/2012 804 Final Jury Instructions and Verdict Form. (wydcd, rrk) (Entered: 09/18/2012)

09/17/2012 807 MINUTE ENTRY for Jury Trial (Day 10) held on 9/17/2012 proceedings held before Chief Judge Wiley Y. Daniel. Denying 802 Motion for Directed Verdict. Denying Defendants' oral motion for judgment as a matter of law. Court Reporter: Tammy Hoffschildt. (wydcd, rrk) (Entered: 09/19/2012)

09/18/2012 808 MINUTE ENTRY for Jury Trial (Day 11) held on 9/18/2012 proceedings held before Chief Judge Wiley Y. Daniel. Court Reporter: Tammy Hoffschildt. (Attachments: # 1 Jury Note #1, # 2 Jury Note #2, # 3 Jury Instruction 51A) (wydcd, rrk) (Entered: 09/19/2012)

Outcome: Plaintiffs' verdict for $7.2 million. FONA settled before trial for an undisclosed sum.

Plaintiff's Experts: Dr. Cecile Rose

Defendant's Experts:

Comments: Editor's Note: This is not the first case that Plaintiffs' attorneys have won relating to alleged injuries and damages associated with diacetyl.