Plaintiffs face uphill battle in nation’s first lawsuit alleging energy drinks are defective products

Monster Beverage Corporation may have a monster problem on its hands. Last month, parents of a 14-year-old girl filed a wrongful death lawsuit (PDF) against Monster. The girl, a Maryland resident, died after drinking two 24-ounce cans of Monster Energy over a 24-hour period.

This appalling tragedy, which occurred last December, followed on the heels of a report (PDF) released last November by the Substance Abuse and Mental Health Services Administration (SAMHSA), which revealed that emergency department visits involving energy drinks had increased tenfold during a five-year period in the last decade, when energy drink sales skyrocketed.  Fifty-six percent of the visits were made by patients aged 12 to 25.  On average, according to the report, approximately 1,197 youth have visited the emergency room annually in recent years. They were admitted exhibiting adverse reactions to energy drinks, not in combination with alcohol or any other drug.

Yet the problem remained virtually unknown to the general public until Anais Fournier’s parents filed a lawsuit in Riverside County, California, four weeks ago.  Sometimes an injured person or grieving parent’s unquestionably difficult decision to take legal action is the only way to effect necessary change.

In the lawsuit, the plaintiffs claim that Monster knew or should have known that its energy drinks could cause serious injury and death, including “adverse cardiac episodes” in children and adolescents; and it should have warned of these risks.

Monster definitely knew something was up, since its labels advise that the drinks are “not recommended for children, pregnant women, or people sensitive to caffeine.”

Yet the labels say nothing about what might happen if children or caffeine-sensitive adults consume the drinks.  Meanwhile, Monster and the other leading energy drink manufacturers all market heavily toward young people in their packaging, advertising, and branding.

If a jury finds that Monster knew its product posed a serious danger to young people and continued to market the drinks without warning to this vulnerable population, Monster could not only be found liable but also face a sizable punitive damages award.  I think the plaintiffs have pretty good chance of proving these facts.

In addition to the SAMHSA report, the American Academy of Pediatrics (APA) issued a report in June 2011 advising pediatricians to counsel their patients that energy drink consumption “should be avoided or restricted.”

Also, Monster is required by federal law [21 U.S.C. § 379aa-1] to report to the FDA serious, adverse health-related events associated with its drinks.  Yet while the FDA had consumer reports of 20 adverse health events since 2007—including five deaths in the past year – the only event reported by Monster since 2007 was Ms. Fournier’s death.  It’s hard to
believe that these consumers complained to the FDA but didn’t let Monster know about the problems.  And if Monster knew, it’s failure to take steps to inform its customers of potential risks looks like knowing disregard for people’s safety, which forms a legal basis for making them pay punitive damages.

Further hurting Monster’s defense, and credibility, in this case is the fact that its competitor Living Essentials submitted 13 fatality reports of its own to the FDA in the past four years, citing possible involvement of its highly caffeinated energy shot, 5-Hour Energy, in the deaths.

The big challenge for the plaintiffs will be proving that the amount of caffeine in two, 24-ounce energy drinks was sufficient to be considered a cause of death by legal standards. Despite the rise in emergency department visits and the number of consumer complaints reported, scientists concede that caffeine toxicity is “not well understood.” Literature on the subject is rife with “speculation,” and the type of incident experienced by Ms. Fournier is “extremely rare.”

The APA report notes that caffeine consumption “is known to play a role in triggering arrhythmias.”  And while “cardiac arrhythmia due to caffeine toxicity” was listed on Ms. Fournier’s death certificate as a complication that contributed to her death, the legal question is not whether the energy drinks played any role, but rather whether the drink itself or Monster’s failure to warn of foreseeable health risks associated with drinking the beverage was a substantial factor in contributing to the death.

If the judge finds that the scientific basis is not strong enough to support the theory that the amount of caffeine in the two drinks was a substantial contributing factor in the girl’s death, the case may not ever make it to a jury.

If the plaintiffs do prove that there is enough scientific support to move forward, they still have to convince nine people that the teen’s consumption of 240 mgs of caffeine one evening and then 240 mgs of caffeine the following evening was more likely than not a substantial factor in causing her death. To put that in more commonly understood terms, a 16-ounce “grande” Starbucks coffee has 330 mg of caffeine, and a 20-ounce “venti” has 415 mgs.

If you are interested in following this case, watch the headlines for news about Monster’s response, which is likely to be filed just before Thanksgiving. Monster is likely to take a broad approach at the outset that tells the public very little about the facts that eventually will form the
basis of its defense.  Also, expect to see Monster invoke Maryland law at some point in the litigation, since Maryland law limits plaintiffs’ recovery in personal injury lawsuits like this one.

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