Khoury v. ConAgra Foods, Inc.

368 S.W.3d 189, 2012 WL 694827, 2012 Mo. App. LEXIS 286
CourtMissouri Court of Appeals
DecidedMarch 6, 2012
DocketNo. WD 73084
StatusPublished
Cited by12 cases

This text of 368 S.W.3d 189 (Khoury v. ConAgra Foods, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 2012 WL 694827, 2012 Mo. App. LEXIS 286 (Mo. Ct. App. 2012).

Opinion

MARK D. PFEIFFER, Judge.

Elaine and Alex Khoury (“the Khourys”) appeal from the judgment of the Circuit Court of Jackson County, Missouri (“trial court”), upon a jury verdict in favor of ConAgra Foods, Inc. (“ConAgra”), on the Khourys’ personal injury claim for damages. The Khourys claim, first, that the trial court erred in restricting or refusing certain rebuttal evidence they offered at trial; and, second, that the trial court erred in removing a juror and replacing him with an alternate juror after the jury was empanelled but before any evidence in the trial was presented. The Khourys ask this court to overturn the jury’s verdict and reverse the trial court’s judgment entered thereon and to remand for a new trial. We conclude that the trial court did not abuse its discretion in either instance; thus, we affirm.

[193]*193Facts and Procedural History1

The Khourys sued ConAgra to recover damages for Mrs. Khoury’s personal injuries from lung disease called bronchiolitis obliterans, allegedly caused by exposure to chemical vapors during her preparation and consumption of ConAgra’s microwave popcorn, which contained butter flavoring and chemical ingredients, including diace-tyl, and for Mr. Khoury’s loss of consortium.

The day prior to voir dire, the trial court and the parties’ trial counsel agreed that counsel would investigate overnight the ve-nire panel members’ litigation history using Missouri’s automated case record service, Case.net, and then determine the next morning whether any of the eighty panel members may have failed to answer questions regarding prior litigation experience. Voir dire began the afternoon of July 6, 2010, and continued through July 7, 2010. The individual venire members were questioned about information found on Case.net, the parties exercised their peremptory strikes and strikes for cause, and the jury — consisting of twelve jurors and four alternates — was empanelled.

The next morning, on July 8, 2010, in the courtroom out of the presence of the jury and prior to opening statements, counsel for ConAgra informed the trial court that counsel had found, separate and apart from litigation history information, that Juror Piedimonte had a Facebook page and was “a prolific poster for anti-corporation, organic foods.” ConAgra moved for a mistrial or, in the alternative, to strike Juror Piedimonte because of his alleged misconduct2 during voir dire, claiming he intentionally failed to disclose information that affected his ability to be a fair and impartial juror. The trial court and counsel for the parties questioned Juror Piedimonte, after which, counsel for ConAgra renewed its motion based on Juror Piedimonte’s alleged intentional nondisclosure. The trial court denied the motion for mistrial but sustained the motion to strike; Juror Piedimonte was excused and the trial proceeded over the next three weeks with twelve jurors and three (instead of four) alternate jurors.

During the Khourys’ case-in-chief, medical expert witnesses Dr. Allen Parmet and Dr. David Egilman testified on the issue of causation, both opining to a reasonable degree of medical certainty that Mrs. Khoury had bronchiolitis obliterans caused by exposure to butter flavorings released from the popcorn bags. The Khourys did not call Mrs. Khoury’s treating pulmonologist, Dr. Francisco Remy, during their case-in-chief.

The Khourys compared Mrs. Khoury’s exposure to butter flavoring chemicals to the chemical exposure of quality assurance workers in microwave popcorn plants. Dr. Egilman testified about the Lockey Study, a paper summarizing the results of Dr. Lockey’s study of airway obstruction in [194]*194twenty-seven quality assurance workers at four ConAgra microwave popcorn facilities. Dr. Lockey concluded that none of the quality assurance workers showed evidence of obstruction on the pulmonary function test. Dr. Egilman disagreed with Dr. Lockey’s conclusion in the Lockey Study.

During the Khourys’ case-in-chief, they presented evidence of the amount of popcorn they purchased and Mrs. Khoury’s exposure. The Khourys’ daughter testified that the family would buy cases of popcorn, and on family movie night, Mrs. Khoury would sometimes pop ten bags of popcorn. Mr. Khoury testified that he purchased a case of popcorn a week from either Sam’s Club or Costco and sometimes from BJ’s Club. Mrs. Khoury testified that she worked at the Blockbuster Video stores from 1996 to 2000. She stated that she popped between twenty and thirty bags of microwave popcorn on a weekend night or holiday for customer consumption at Blockbuster, two bags of popcorn a day for herself, and between six and ten bags of popcorn a night for her family.

In response to the Khourys’ case-in-chief, ConAgra called their own expert witnesses to present evidence of causation and to respond to Dr. Egilman’s Lockey Study testimony, and called fact witnesses to present evidence of the Khourys’ popcorn purchases or lack thereof.

In its case-in-chief, ConAgra called Dr. Amy O’Brien-Ladner, a pulmonologist, to give her opinion as to what kind of lung disease Mrs. Khoury had and its cause. Dr. Ladner based her opinion on her examination of Mrs. Khoury, and her review of, among other things, Mrs. Khoury’s medical records, including those of her treating physician, Dr. Remy. Dr. Ladner opined to a reasonable degree of medical certainty that Mrs. Khoury had a mild, steroid-responsive constrictive bron-chiolitis. She testified that the cause was unknown — idiopathic.3 Dr. Ladner differentiated “constrictive bronchiolitis” (inflammation around the bronchial that constricts the airway) from “bronchiolitis obliterans” (obstruction inside or obliteration of the airway). She testified that Mrs. Khoury’s disease was not the same as the diseased workers at the popcorn plants.

ConAgra then called expert witness Dr. Kevin Latinis, an internist and rheumatol-ogist, who had examined Mrs. Khoury and reviewed her medical records. Dr. Latinis testified to a reasonable degree of medical certainty that Mrs. Khoury had undiffer[195]*195entiated connective tissue disease and that her lung disorder was related to her autoimmune disease.

ConAgra also called expert witness Dr. Patrick Hessel, a pulmonary epidemiologist who studies the relationship between exposures and diseases. He testified that he conducted a linear regression analysis by entering the Lockey Study data into a statistical computer program “to see if there is a linear relationship between exposure and lung function.” He found no relationship between cumulative exposure and lung function.

Also in response to the Khourys’ case-in-chief, ConAgra called fact witnesses to present evidence of the Khourys’ wholesale club microwave popcorn purchases. Con-Agra called representatives from the three wholesale clubs identified by Mr. Khoury. The representatives testified as to the following popcorn purchases by the Khourys: from Costco — 472 bags of popcorn over ten years; from BJ’s Wholesale Club — two purchases of thirty-six bags of popcorn over five years; from Sam’s Club — from 1999 when the Khourys became members — out of 140 transactions — microwave popcorn was purchased on four occasions.

After ConAgra rested its case-in-chief, the Khourys began their rebuttal by calling Dr. Remy to offer his opinion as to causation to rebut Dr. Ladner’s causation opinion. ConAgra objected, and the trial court limited Dr.

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Bluebook (online)
368 S.W.3d 189, 2012 WL 694827, 2012 Mo. App. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/khoury-v-conagra-foods-inc-moctapp-2012.