Clausen Miller Scores Major Diacetyl Victory

March 7, 2016 / News

On March 4, 2016, the United States Court of Appeals for the Eighth Circuit issued a decision that may have national implications in the long-running litigation involving use of the ingredient diacetyl in butter flavoring for popcorn. The court affirmed a decision for the defendant flavor manufacturers and against the plaintiffs who claimed injury from the inhalation of microwave butter popcorn fumes. Stults v. American Pop Corn Co., 2016 U.S. App. Lexis 4181 (Mar. 4, 2016).

Clausen Miller monitored the case in the district court as appellate counsel, and it handled the subsequent appeal. The Clausen Miller attorneys working on the case included partners Tom Ryerson, Ed Kay, Don Sampen and Joe Ferrini.

As background, the injured plaintiff claimed that he inhaled microwave buttered popcorn aromas on a daily basis for some 20 years. As a result, he contended that he developed the disease bronchiolitis obliterans from the diacetyl used to make the butter flavoring. He brought suit against numerous makers and distributors of the popcorn and butter flavoring. The only claim that made it to trial, however, was for breach of implied warranty against International Flavors & Fragrances, Inc., and its subsidiary, Bush Boake Allen, Inc.

The jury found in favor of the defendants, and the plaintiffs appealed to the Eighth Circuit.

On appeal, the plaintiffs focused on expert testimony that was heard by the jury but that was subsequently stricken by the district court judge due to alleged technical deficiencies. The plaintiffs contended that just by the jurors having heard the stricken testimony in the first instance, reversal was warranted, but the Court of Appeals agreed with the district court that it was not. The Court ruled that the plaintiffs’ counsel “forfeited” at least two claimed errors regarding the testimony by not raising sufficient objections, and that the district judge’s curative instructions otherwise were proper. Additionally, the Court rejected the argument that the plaintiffs were entitled to a hearing on supposed juror misconduct related to the stricken testimony.

Finally, the plaintiffs contended that the defendants had not adequately rebutted the plaintiffs’ evidence. The Court, however, agreed with Clausen Miller’s argument that the defendants had no obligation to do so. The Court said that the burden of proof was on the plaintiffs, and the jury might simply have disbelieved the plaintiffs’ witnesses.

The Court thus unanimously affirmed in favor of the defendants. To learn more, please feel free to contact Tom Ryerson at or Don Sampen

  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Carl M. Perri

  • Mission Viejo

    California 92691

    27285 Las Ramblas

    Suite 200

    Mission Viejo, California 92691

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Appleton

    Wisconsin 54914

    4650 W. Spencer Street

    Appleton, Wisconsin 54914

    T: 920.560.4658 TF: 800.826.3505 F: 920.968.4650 Office Managing Partner: Patrick L. Breen

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.745.3598 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman