Panera Halts Sales of “Charged” Lemonade Drinks Following Lawsuits Claiming Caffeine Overdose Deaths -- UPDATED

May 13, 2024  [Update at the end below]

Last December  I reported on several lawsuits filed against Panera Bread Co. alleging it should be liable for the deaths of customers who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  See here and here.

Today, I am writing to report that Panera has decided to stop selling the product in question.  As reported in AboutLawsuits.com, 

Reports suggest that Panera Bread will no longer sell its “charged” lemonade products, after at least two consumer deaths were linked to excessive levels of caffeine in some of the drinks, leading to wrongful death lawsuits by the families.

Panera Charged Lemonade was introduced in 2022, featuring high levels of caffeine marketed as an alternative to coffee or energy drinks. However, at least two wrongful death lawsuits were filed against Panera last year, claiming that high levels of caffeine in the beverage led to fatal heart attacks or other heart complications.

While Panera claimed their charged lemonade as plant-based and clean, a 30oz lemonade could contain up to 390 milligrams of caffeine, which is the equivalent of four cups of coffee or three-and-a-half 12-oz cans of Red Bull. In addition, since Panera’s employees mix the lemonade, caffeine levels can vary drastically in different drinks, potentially providing potentially dangerous amounts for some consumers, especially those with certain pre-existing conditions.

Various news reports now indicate that employees are now being told that Panera Charged Lemonade will be phased out, and the chain is no longer ordering some key ingredients used to mix the products in stores.  

Go here for the full story. 

UPDATE 10/13/24:  The Hill is reporting that Panera has settled one of the lawsuits.  See here.

Alabama case in which state Supreme Court held frozen embryos are "children" for purposes of wrongful death settles and is dismissed

 The lawsuit that led to a highly-publicized Alabama Supreme Court ruling that frozen embryos in a lab count as “minor children,” was dismissed Wednesday after plaintiffs settled their wrongful death claims against the in vitro fertilization (IVF) clinic and Mobile hospital.  Go here for the full story. 

This result is important for the parties, of course, but the more important part of the story was the ruling of the Alabama Supreme Court back in February.  You can read my posts on that decision here, here and here.

Study on the dangers of "energy drinks"

 A few minutes after I posted the news that Panera would stop selling its "charged lemonade," I saw this story on the dangers of other so-called "energy drinks":  Energy drinks show ‘damaging’ effects on young adults, studies show.

This is not a new issue. Manufacturers of highly caffeinated drinks have known about this problem for a long time. If you click here, you will be taken to a page with at least 20 stories I have published on the subject, dating back to 2009.  

More commentary on the Alabama decision on wrongful death of frozen embryos

 A few days ago I posted my comments on the Alabama case deciding a plaintiff could support a claim under the state's wrongful death act based on the destruction of frozen embryos.  See here.

If you have been following the news, you know the case has attracted a lot of attention and I have not been able to keep up with all of it, but I will post a few stories, and let you google (now a verb) the rest.

Frozen Embryos Now Considered Children: Unpacking the Alabama Supreme Court Decision and the Future of Fertility Care  (Lex Blog)

The massive legal fallout from Alabama’s IVF ruling is just the beginning (MSNBC)

Uncertainty looms after Alabama's IVF court ruling (NPR Audio)

Two more clinics in Alabama pausing IVF treatments after court ruling (Politico)

IVF Threatened by Unprecedented Alabama Decision (Bloomberg Law podcast)

My eldest daughter was born through IVF. Here’s what ‘pro-life’ conservatives don’t understand (MSNBC)

Alabama’s IVF Ruling Is Christian Theology Masquerading as Law (The Nation)

The science of IVF: What to know about Alabama's 'extrauterine children' ruling (NPR Audio)

What the Alabama IVF ruling means for parents going through IVF (NPR Audio)

The Alabama Ruling That Could Stop Families From Having Kid (NY Times Audio)

More on the consequences of the Alabama case holding that embryos are "children" for purposes of a wrongful death case

 Yesterday I posted a comment about a recent case in Alabama holding that plaintiffs had a valid cause of action for wrongful death based on the accidental destruction of frozen embryos.  I updated that post soon after I posted it, so if you read it immediately after it was picked up in your news aggregator you may want to go back to read it again because I added a quote from an article by someone else that had some good analysis.

The other part of the equation is the discussion of the possible consequences of the decision for issues outside of the litigation and outside of tort law in general.  That discussion picked up quite a bit today in the news.  Some of those consequences are already coming true:  The University of Alabama has terminated providing IVF care!  The University Hospital is a huge public facility so this decision will affect a lot of patients.  The hospital said they would continue to extract eggs, but they would not fertilize them.

 Here are a few links to articles on the subject.  

The Guardian: "Alabama’s supreme court ruled embryos are ‘extrauterine children’. IVF patients are worried"

MSNBC: Alabama’s embryos ruling is a terrifying preview of another Trump presidency [this link lead to a page that has a video on top; the video is not related to the story; read the article below the video]

NPR (3 minute audio): Alabama's largest hospital says it is halting IVF treatments in wake of court ruling

The Guardian: Alabama university pauses IVF care after frozen embryos deemed ‘children’

Politico: Major Alabama hospital stops IVF treatment after court rules embryos are children

NPR (3 minute audio): University of Alabama in Birmingham pauses IVF procedures due to embryo ruling

The Hill: Alabama hospitals halt IVF after ruling

The Hill:  How Alabama’s frozen embryo decision is shaking the nation: What you need to know

Politico: ‘Another hot potato’: Alabama’s IVF ruling risks political, legal backlash

Alex Wagner Tonight (video segment)

Alabama Supreme Court rules frozen embryos are ‘children’ for purposes of the state's wrongful death statutes -- UPDATED

As you probably have heard by now, the Alabama Supreme Court recently ruled that a group of in vitro fertilization (IVF) patients could sue for wrongful death because their frozen embryos were destroyed while in the defendant's facility.  

The decision has gathered a lot of attention (see links below) and it does have significant consequences, but there are a couple of things that the coverage is not mentioning.  First, the decision is not unprecedented and, in Alabama's case, it is not that surprising since the state's supreme court had already decided (years ago) to recognize a wrongful death claim for the death of a fetus.

Typically, wrongful death statutes state the circumstances under which survivors of "a person" who dies because of someone's negligence can recover.  And, typically, that language ("a person") is subject to interpretation.  Some statutes provide a definition, while in other states courts have had to interpret the meaning of the words or to decipher the intent of the legislature. 

On the issue of who should be considered a person, jurisdictions fall into one of three categories:  (1) those that define a person as someone who is born alive (which requires evidence of a live birth before the death for which the wrongful death suit is brought; (2) those who consider life to begin at conception (Illinois uses this approach in its statute) and (3) those who "compromise" by holding that "personhood" starts at the point of "viability" (usually defined as the point in time when the fetus could survive independently of the mother).

Back in 2011 or 2012, Alabama decided a case adopting the view that life begins at conception.  In that case, the court held that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability."  I wrote about that case here.  Alabama then reaffirmed its decision in 2017.  

And Alabama is not alone in considering this question.  I do not remember how these cases were ultimately decided but I know the question was litigated in  Nebraska.  Also, in 2013 trial court in Colorado dismissed a wrongful death claim for the death of a fetus, and the state's supreme court denied review.   (the links are to my posts at the time the cases were reported).

I wrote a short comment on the issue back in 2015 here and again in 2021 here.

One can say that once the court took the position that there is a right to a wrongful death claim for the death of an unviable fetus, the view of the court is that life begins at conception.  But then the question becomes what constitutes "conception"?  And that is where the question of the distinction between a fetus, a fertilized egg, a frozen embryo and an implanted embryo becomes important.  I have not seen commentary about that, other than in a short article here.  This is the only comment I have seen that makes the important distinction between cases that involve recognizing a cause of action for the wrongful death of a fetus and the recent case related to an frozen embryo:

Embryos don’t just automatically turn into kids. IVF families can go through multiple implants in an effort to get a child. And for this reason, clinics try to successfully fertilize a number of eggs in case of failure. That creates a bunch of embryos that won’t end up being implanted and that probably wouldn’t result in a child even if they were. Without the freedom to get rid of those cells after the fact, IVF is an untenable industry.

This case, by itself, doesn’t get that far. Families who consent to ending the process aren’t going to sue. But the court didn’t limit itself to giving the plaintiffs a cause of action, and instead went on a tear laying the groundwork to expand the state’s criminal laws to not only shut down IVF, but to greenlight the next prosecutor who wants to charge women with murder for having a miscarriage.

You can read the Alabama Court's opinion here.  To read more commentary about the decision, you can go to the links below. 

The Hill

Why the Alabama Supreme Court’s ruling on embryos matters

NPR (4 minute audio)

Politico

NPR

Courthouse News Service

Follow up on the possible criminal liability of a parent

 A few days ago I posted a comment on the ongoing prosecution of the mother of a child who engaged in a mass shooting at a school.  The case is a criminal prosecution but some of the issues are similar and relevant for tort law because they involve the possibility of imposing vicarious liability (which is not what is being charged) and the underlying issue of causation (which is very much at issue in the case).  

I am following up on this today because Joseph Margulies. a Professor of Government at Cornell University, recently published a comment on these issues over at Justicia. In it he points out, correctly, that one important issue in the case (as in a torts case) is the question of proximate cause and, although he does not mention it by name, the question of duty.  And, in the end, he questions whether it would be a good idea to impose a duty on parents that could result in criminal liability under the circumstances of the case.  The comment is short and you can read it here.  

News reports that a case in Michigan will decide if parents can be criminally responsible for a child's actions are wrong

 If you have been paying attention to the news, you may have heard that a criminal case is just underway in Michigan in which the mother of a child who killed a number students in a school shooting spree is on trial for involuntary manslaughter.  And, you may have noticed that an often repeated version of the story is that the case is about whether parents can be held responsible for the conduct of their child.

This formulation of the issue is wrong.  

The parents are not on trial for the conduct of their child.  That would mean that the state is looking to convict them based on vicarious liability.  Instead, the parents are on trial for their own conduct, which led to and resulted in the conduct of the child.  That's very different.  In other words, the parents are being tried for direct (as opposed to vicarious) liability.  They are not facing convictions "for the conduct of their child"; they are facing conviction for their own conduct.

Now, before we go any further, let's remember that this case is a criminal case, not a torts case.  But the implications of the possible liability of a parent for the results of the conduct of a child are obviously important for tort law.

In torts, parents are typically not held vicariously liable for the conduct of their children.  But they can be held liable for their own conduct if their conduct is a cause that leads to the injury of the plaintiff. Thus, the principle at issue is the same.  

However, making the case for tort liability is easier.  There seems to be pretty solid support for the arguments of all the elements of the cause of action, including proximate cause since it is relatively easy to argue that the injury was a foreseeable consequence of the negligent conduct, which included giving the child a gun knowing the child was mentally unstable.  Of course, the defendant will argue that the conduct of the child was a superseding cause, but the argument will come down to whether the child's conduct was unforeseeable, and there is good support to defeat that argument.

BUT back to the actual case in Michigan, what is different is that for criminal liability, the conduct in question must have been defined as a crime by the penal law.  And that is the issue in the criminal case.  The state is trying to extend the definition of manslaughter to include the conduct of the parents which allegedly "facilitated" the manslaughter committed by the child.  This creates the confusion.  Rather than charge the parents for the "facilitation" of the crime, or with a crime like "reckless endangerment" or aiding and abetting or something like that, the state is charging the parents with the actual manslaughter.  

Whether that is the proper charge given the evidence is a matter of criminal law about which I am not an expert.  But the issue was argued before the court.  The court held against the parents, and was affirmed by two higher courts on appeal.  Here is the decision of the Michigan Court of Appeals which holds that the lower court did not abuse its discretion in finding The district court did not abuse its discretion in determining that the child's decision to shoot four classmates was not a superseding cause because it was foreseeable.

Interestingly, take a look at the finding of the trial court on the issue, which if you did not know otherwise you would think was taken from a torts case (other than the reference to "as alleged by the People"):

The Court concludes that sufficient evidence has been presented to allow a reasonable juror to find factual causation and to allow a reasonable juror to conclude that the deaths of the victims were a direct and natural result of the Defendants’ gross negligence.  The Court further concludes that the criminal misconduct of the Defendants’ son was an intervening cause but that a reasonable juror could conclude that his actions were reasonably foreseeable.  Therefore, the causal link between Defendants’ actions and their liability for the deaths of the victims, as alleged by the People, is not severed by the actions of their son.  A reasonable juror could conclude that the action of the Defendants’ son was a related link in the causal chain. 

According to the news, the case is the first instance in which a parent is charged (for her own conduct) with the crime that corresponds to the conduct of the child.  Not too long ago, the mother of a 6-year-old who shot a teacher was tried in relation to the incident, but she was tried (and convicted) of child neglect, not with the crime that would correspond to the conduct of the child -- which is what the prosecutors are trying to do in Michigan.

The case is clearly an attempt to send a message and put pressure on parents to take better care or control of a child when there are signs that the child needs it.  This may start a trend in prosecutions and it may influence how courts deal with similar issues in torts cases. 

You can read coverage about the case here:

NPR (audio)

The Hill (includes video)

The Hill (includes video of the opening statements)

Panera faces second wrongful death lawsuit related to its ‘Charged Lemonade’

 About a week ago I reported that a recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  

Now comes news that a second wrongful death lawsuit (on behalf of the beneficiaries of a 46-year old man) based on similar allegations has been filed in Delaware.  The Hill has the story.  NPR also has coverage.

Panera Bread Co sued for wrongful death allegedly caused by Panera's highly caffeinated lemonade

December 4, 2023

Back in 2012-2013 there was a lot of discussion on possible claims for damages caused by "high energy" (read: highly caffeinated) drinks.  Go here and scroll down to refresh your memory.

The topic is now back in the news.  A recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  

The Legal Eagle YouTube channel has a detailed explanation of the case.

UPDATE 12/10/23:

Additional coverage on the case at The Legal Examiner 

A second wrongful death lawsuit has been filed in Delaware.  See here.

Strangely worded opinion in Indiana recognizes cause of action for emotional distress resulting from sexual abuse of a child, ... maybe?

A few days ago, the TortProf Blog reported that "[t]he Indiana Supreme Court has extended negligent infliction of emotional distress."  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court apparently recognizes a cause of action for the parents of a child who claim emotional distress from learning that a caretaker for their child sexually abused the child.  However, the opinion is very awkwardly worded.  It states that 

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

Here is my problem with this.  Notice how the court does not say that the caretaker owes a duty to the parents.  It says that IF the caretaker owes a duty to the parent.  This means that to support a prima facie case, the parents will have to convince the court that the caretaker owes them a duty.  And, the parents will have to do this in addition to meeting all the other elements of the cause of action.  

In other words, the key here is that the parents have to show that the caretaker owed them a duty, but the court does not say how a parent can satisfy the element of duty in such a case.   Unless I am missing something, this adds nothing to what we already knew.  To have a cause of action, the plaintiff always has to show the element of duty.

My guess is that the parents will have to find a way to convince the courts to adopt the view of the Restatement 3d §47(b) which recognizes a possible claim for negligent infliction of emotional distress based on the relationship between the parties.  

States Will Investigate Juul’s Marketing to Teens

A coalition of 39 states will look into the marketing and sales of vaping products by Juul Labs, including whether the company targeted youths and made misleading claims about nicotine content in its devices, officials said Tuesday.  Go here for more details.

Podcast on e-cigarettes, vaping claims, and regulation

Yesterday I posted a note about a new case filed against the manufacturer of a popular e-cigarette product.

Here is a link to a podcast on Ringler Radio in which hosts Larry Cohen and Ford Swift talk with attorney Joseph VanZandt about claims of false and deceptive sales, marketing, and labeling against JUUL, and the failure to warn of the products’ highly addictive levels of nicotine, all targeting young people.

New lawsuit filed arguing injuries caused by "vaping"

An 18-year-old from Illinois has filed a product liability lawsuit against the makers of JUUL (a "vaping" device) arguing that the side effects of vaping caused a respiratory injury, which has left the teen with the lungs of a 70 year old man.  This appears to be one of the first lawsuits filed claiming injuries caused by vaping.  AboutLawusuits has a little more information here.

Utah Supreme Court holds that waivers signed by parents on behalf of children are not enforceable

Earlier this month I reported that the the Kentucky Supreme Court recently found that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. See here.

Now comes news that, in a case called Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230, the Utah Supreme Court held that a parent cannot release his or her minor child's prospective claims for negligence unless this rule is altered by a statute enacted to make such releases enforceable.

Can a parent sign away a child's rights by signing a waiver of liability? Not in Kentucky (and many other states)

Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times!  Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a "waiver" before the child can be allowed to do so.  Will those waivers really work to prevent a lawsuit?  Are they a valid form of contract that can be argued support a defense of express assumption of the risk.  Not in many states.  (I have not done a state by state survey, but I suspect this would be the case in a majority of states.) 

The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver.  The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015.  The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.  The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."  The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.  WDRB.com has a little more on the story.

Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Child has a claim for wrongful death even though father died before child was born

The ABA Journal is reporting (with links to more information) that the Iowa Supreme Court has decided that a child whose father died before she was born can sue for loss of companionship in a wrongful death case. Similar opinions have been published in

This is an interesting question that I know a little bit about.  One of the very first cases I ever handled as a young lawyer in private practice involved the same issue.  In my case, a couple were expecting a child when the father was killed by a negligent driver in an accident.  The child was later born without incident and the mother hired our firm to represent her in a claim against the driver.  We included a claim for the child based on wrongful death.  Like in the case in Iowa, the defendant argued that the child could not claim to have suffered an injury since the child never met the father (along the lines of you can't miss what you never had to begin with).  I prepared a brief in reply to the motion to dismiss and won, and the case settled soon after that.

I had not looked into the issue since then, so now I am interested in catching up to see what has been written about it.  Apparently, in addition to the case in Iowa, there are other reported decisions in Massachusetts and Wisconsin. I will add them to my summer reading list.

Utah Supreme Court Holds Children Under the Age of Five Cannot Be Liable for Negligence

The Utah Supreme Court recently adopted a bright-line cutoff for liability for negligent children, setting the limit at 5 years old.  The case involved a 4 year old who threw a rubber dolphin at his babysitter.  Unfortunately, the dolphin hit the babysitter in the eye.  She had just had a cornea transplant and the accident blinded her.  The Volokh Conspiracy has the story.

Setting an age limit is not that unusual, but the age itself varies among states.  I have read somewhere that the more common age is 7, but I have not done the research to confirm it.  The Restatement (Third) of Torts suggests the age of 5, which is one of the reasons the Utah Supreme Court chose it.

One interesting thing about age cut offs is that the most famous case regarding intent (as an element for intentional torts) involved a 5 year old.  Remember  Garratt v. Dailey?  I am sure you read it in law school.  It's the case case about the 5 year old who pulls a chair out from under a woman who was about to sit down on it. 

Thanks to TortsProf for the information.

Maryland legislature to consider bill that would eliminate trial by jury in malpractice cases that result in injury to newborns

According to the PopTort, Maryland, hospitals are pushing a bill that targets catastrophically-injured newborns. The legislation – which is the subject of Maryland legislative hearings later this week – would abolish access to the jury system regardless of the extent of the hospital’s misconduct or the severity of the child’s injury. To be compensated, parents would be forced to go to a state fund.  Go here for more details.