Jumping to a pretty big conclusion based off a 2 year old verdict. That case will not be a very good precedent because of the man's history of using chemicals for carpet cleaning. The earlier case from 2004 was 20 Million also. I don't think lawyers are going to be any resolution to any of this for E-Cigs. But I do, think Diacetyl is going to be removed by force or either the FDA or more likely consumers.
And also Bozo, a Failed Daubert Challenge killed off the class, and ended the case for Diacetyl harm in a precedent case already.
Plaintiffs retained Dr. Egilman to offer an opinion on general causation, as well as to examine Mr. Newkirk, diagnose him, and offer an opinion regarding the specific cause of his condition. The expert opinion testimony of Dr. Egilman was the plaintiffs’ primary evidence supporting general causation. (All of the Newkirks’ other causation expert witnesses assumed that general causation already has been established.) He opined that, “There is no known safe level of diacetyl exposure. Existing scientific studies also suggest that levels of diacetyl exposure below and around 1 ppm can cause BO and other respiratory illnesses.”
So you insult me and then use a four year old case to argue your point after pointing out previously that a 2 year old case was basically irrelevant?
A Daubert decision is based on flawed testimony in a single case. It does not undermine the effectiveness of future cases based on complete testimony and research.
Based on the the case I cited there are predicted to be a rash of new cases filed based on popcorn exposure alone. Given that there have not been any cases of "popcorn lung" that I could find as a result of smoking, it opens the door to implicate e-liquid as the cause. I'm not saying that it will win, but the cases will pop up. Additionally there are smokers like me who quit for years and had no problems, 7 in my case, and started up using e-cigs as a way to avoid using actual cigarettes, or users who have only used e-cig products like a lot of teenagers that I know personally.
To keep in the spirit of your quotes, I offer the following from an analysis of the case I cited with an explanation of the failed Daubert motion to exclude testimony. Now, if you are mature enough to maintain an adult discussion without resulting to silly schoolyard insults, then I am happy to participate in future discussion on the topic, although I'm not certain that there is really anywhere to go beyond what I posted, concisely, back in post number 7 of this thread...
And Wayne Watson has that proof: his treating physician,
Dr. Cecile Rose, MD, MPH, a published expert and researcher of occupational pulmonary diseases, explained how she reached that conclusion:
Q: What’s the basis for your opinion that his exposure to microwave popcorn is a cause of the lung disease that you diagnosed in him?
A: Well, the basis for that opinion relates mainly to the fact that his lung disease has stabilized with the cessation of use of the product and exposure to the inhalants related with that product. The fact that there was no other causal explanation for his lung condition and the fact that the clinical findings in his lung disease were similar to those that occurred in workers who were exposed to butter flavoring also support that opinion.
The Defendants moved to exclude Dr. Rose’s testimony on
Daubert grounds, arguing that her conclusions were not “the product of reliable scientific principles and methods.” The Court denied the Motion;
here’s the Court Order, as well as the last-filed briefs of the
Plaintiff and the
Defendants.
I’ve written before about
The Difference Between Scientific Evidence And The Scientific Method. This case puts several issues of law, science, and medicine squarely in focus: on the one hand, it seems that exposure testing within Mr. Watson’s home was unable to show that he’d be exposed to dangerous levels of diacetyl, but on the other hand Mr. Watson has an extraordinarily rare lung disease that can’t be explained any other way except by way of his extensive exposure to microwave popcorn.
There’s nothing frivolous about this case: the plaintiff has a serious disease, one that modern medicine has concluded by the process of elimination had to be caused by his exposure to the microwaved popcorn. The question is more one of legal policy: should we require plaintiffs show more scientific evidence than that? The law on that, at least in the federal Tenth Circuit, is clear. As the Court found in Watson’s case:
[T]he Tenth Circuit has recognized that a medical expert does not always have to cite to published studies on general causation in order to establish causation and, under the right circumstances, a differential diagnosis (i.e., ruling out other possible causes of the condition) may reliably form the basis of an opinion that a particular item caused an injury. Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1211-12 (10th Cir. 2002) (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir. 2000)). “The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims’ condition and the toxic substance, has not yet been completed.” Turner, 229 F.3d at 1209. Dr. Egilman and Dr. Rose have both discussed why they believe that other known causes of bronchiolitis obliterans have been eliminated, leaving Mr. Watson’s exposure to butter flavoring vapors as the most plausible explanation.
Thus, the Daubert challenge was denied, and Dr. Rose was allowed to testify in front of the jury, and the jury was tasked with deciding if plaintiff had adequately proven microwave popcorn caused his lung disease, and the popcorn manufacturer was given the opportunity to point out the absence of any testing, and the fact that there are other potential causes of bronchiolitis obliterans.
