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.

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.  

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.

Article on the use of public nuisance claims as product liability cases

Back in 2010 I posted a link to an article on the tort of "public nuisance" that stated:

The National Law Journal has published a short article on the tort of "public nuisance" interestingly called "The tort that refuses to die." Here is the first paragraph: "The tort of public nuisance has seen its fortunes rise and fall dramatically during the past several years. It was once hailed by the legal literati as the next big tort. More than one court described it as a monster threatening to devour tort law because of its propensity for reaching conduct that other tort theories could not. . . . Recent events confirm that analogy to a degree. Public nuisance resembles nothing so much as a zombie — a mindless creature perhaps not particularly dangerous at first glance but incredibly difficult to kill once and for all." The authors then discuss how the recent reversal of a case against former lead paint manufacturers alleging that lead paint was a public nuisance in Rhode Island, suggested public nuisance would not be an effective legal theory. But there have been many other cases that have challenged this conclusion. The article can be found here ..."

 I am bringing this up again today because I just read a new short article discussing the use of public nuisance claims related to opioid products, which starts as follows:  "Manufacturers are used to defending strict product liability actions when plaintiffs claim that their products are defective. But in the opioid litigation, plaintiffs have filed something else: more than 2,500 public nuisance cases so far."

The article is titled Trending in Tort Law: Transforming Product Liability Claims into Public Nuisance Actions and you can read it here.

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.

Judge Determines Johnson & Johnson Should Be Required to Pay $6.8M in Punitive Damage For Failing to Warn About Risperdal Risks

In a ruling issued last week, the judge presiding over a product liability action against Johnson & Johnson, reduced the award of punitive damages granted by the jury to $6.8 million, which is 10 times the amount of compensatory damages which is generally held to be the upper threshold for punitive damage awards that are constitutionally permitted.  The jury had originally awarded $8 billion in punitive damages.  Go here for more details on this story.

News about vaping products keep piling up

Here are a few bits of news related to vaping:

The American Medical Association has called for an immediate ban on all electronic cigarettes and vaping devices.

Yet another complaint has been filed against the manufacturer of vaping products.  In this one, an 11-year old child alleges to have developed a nicotine addiction from JUUL, indicating that the manufacturer’s aggressive marketing practices not caused vaping problems among high school and middle school students, but also ensnared children still in elementary school.  The story is here.

A new study suggests that JUUL products deliver much higher amounts of nicotine than other e-cigarettes, increasing the risk of addiction and other health problems.  Story here.

California sues JUUL Labs

California and the city of Los Angeles sued e-cigarette maker Juul Labs on Monday, claiming the company caused a public health crisis by targeting teens with fruity, fun flavored vaping products and did not verify the age of its customers for online sales.  Here is the full story.  Bloomberg law podcast has a 7 minute comment on the claim here.

More news on vaping: Trump flip flops on regulation of vaping products

At some point earlier this fall, President Trump announced he was going to look into ways to keep vaping products away from teenagers and even stated his administration would ban most flavored e-cigarettes.  Of course, as is so often the case, he was only pretending to know what he was talking about and now that someone told him that such a move might cost him some votes, the plan is off the table.  You can now add that to the growing list of Trump's unfulfilled promises.  More on the story here.

More news related to JUUL nicotine products

In a complaint filed earlier this month in the U.S. District Court for the Northern District of Oklahoma, 20 year-old Wayne Childs, Jr. argues that he and potentially millions of other young adults and teens in the United States were victims of an “orchestrated effort” by the makers of JUUL, which has resulted in widespread “JUULing” addictions due to high levels of nicotine delivered by the e-cigarettes.  That story is here.

Meanwhile, the U.S. District Judge recently appointed to preside over all federal JUUL addiction lawsuits has indicated that he intends to move the litigation forward in a quick and efficient manner, given the urgency and gravity of the significant public health concerns that are raised in the cases.  That story is here.

Finally, here is a story about a different type of lawsuit the manufacturers are now facing: "The makers of JUUL e-cigarettes face a growing number of nicotine addiction lawsuits, not just from teens and parents, but also from school districts that have become the “front line” in a battle against the growing teen vaping epidemic in the United States.  Over the last month, several districts nationwide have filed JUUL lawsuits, alleging that the manufacturer’s marketing tactics specifically targeted teens, resulting in widespread underage nicotine addiction."  You can read that story here.

Another lawsuit against the makers of JUUL vaping products

Yesterday I reported on a class action filed against the manufacturers of JUUL vaping products.  Today, there is news of another lawsuit, this one an individual product liability claim brought by a 19 year old in Colorado.  Go here for a copy of the complaint.  Go here for more general information on the case.

Idaho lower court rejects so-called "innovator liability"

Long time readers of this blog will remember the debate over the so called "innovator liability" about which I have posted in the past. You can find some of those posts by going to the "warnings" label and scrolling down.

In an nutshell, the debate is this:  Current FDA regulations require manufacturers of generic prescription drugs to use exactly the same warnings that the name brand manufacturers use.  By "name brand manufacturers" I mean the manufacturers of the original drugs of which the generics are now an option.  The manufacturers of generics are not allowed to deviate from those warnings even if they think that they should provide better warnings that could make the product safer.  And, the language of the warnings are largely determined by the name brand manufacturers themselves, not by the FDA.

Because of this, manufacturers of generics can say that it is not their fault that the warning is inadequate since their hands are tied when it comes to deciding what the warning should say.  For that reason, at some point plaintiffs' lawyers started to file claims against the name brand manufacturers arguing that since the problem was that the warning was inadequate, it is the party that decided what the warning should be who should be liable, even if that defendant was not the person who manufactured the drug used by the plaintiff.  This theory of liability is what is not often referred to as "innovator liability."

To me, it makes perfect sense because the claim is not based on a manufacturing problem, but on the lack of, or adequacy of, a warning.  But, not surprisingly, brand name manufacturers and their lawyers have reacted negatively to the possibility of liability.

Some courts have adopted innovator liability as a possible way to support a claim; others have rejected it, and just a few days ago I heard of a recent decision by a state court in Idaho rejecting it.  The case is called Sterling v. Novartis and you can read the opinion here.

It is interesting that the court starts its discussion of the issue by pointing out what it refers to as the “crucial fact” that “Novartis did not manufacture the drug that caused the injuries.”

Obviously, sated that way it sound like imposing liability on the defendant would be contrary to basic principles of tort law.  After all, as the court also points out the common law generally does not impose  liability on a company for injuries caused by other companies.

But here is the thing.  That "crucial fact" is also irrelevant.

That fact would be crucial if the claim was for an injury related to the manufacturing or design of the product because in a case like that the plaintiff would be trying to impose liability on the defendant for the conduct of the generics manufacturer.

This claim is based on an inadequate warning and the brand name manufacturer is the one whose conduct is related to the warning.  Thus, the possible liability is not for the conduct of another but for the conduct of the defendant.

The question is whether the duty owed by the defendant to its customers should extend to the customers of the generics manufacturers.  Applying the most commonly adopted analysis for this question, we would say the duty should extend to those whose injuries are a foreseeable consequence of the risk created.  If the risk was created by the defendant given its role in determining the content of the warning, then it makes sense to extend the duty and to recognize the possibility of liability for the resulting injuries.

Here is a comment from the perspective of the defendant which argues against my view.

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.

Comment on recent Supreme Court case on preemption in prescription drug cases

A few days ago I reported that he Surpreme Court issued its opinion on Merck Sharpe & Dohme v. Albrecht, the latest decision in the Court's line of cases on pre-emption as a defense in cases for injuries caused by lack of adequate warnings regarding prescription drugs.  (See here).

Since then, Max Kennerly, of the excellent Litigation and Trial blog, has published a detailed discussion of the case. You should read the full article here.  Here is his conclusion:

On May 20, 2019, the United States Supreme Court decided Merck v. Albrecht ... destroying most of the arguments routinely used by drug companies to claim that plaintiffs’ cases are “preempted” and have to be dismissed. The law for people injured by branded prescription drugs is far better now than it was before Albrecht, and as a result, it is likely that far more victims will get to see their day in court. 

After Albrecht, a branded prescription drug manufacturer can only establish impossibility preemption — which happens when federal law makes it “impossible” for defendants to comply with state tort laws that enable victims to seek compensation — if they can show: 

-- The manufacturer “fully informed” the FDA by providing both all “material” safety information and an “evaluation or analysis concerning the specific dangers” raised by the plaintiff; and 

-- The FDA took action, “carrying the force of law,” to disapprove the warning proposed by the plaintiffs. 

The Supreme Court’s analysis in Albrecht is far more narrow than any preemption argument ever proposed by drug manufacturers, and far more narrow than the “clear evidence” tests many lower courts have been using since Wyeth v. Levine, 555 U.S. 555 (2009). As the Supreme Court itself said, “a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both.”

Supreme Court decides new case on preemption in cases of prescription drugs

About a week ago, the Surpreme Court issued its opinion on Merck Sharpe & Dohme v. Albrecht, the latest decision in the Court's line of cases on pre-emption as a defense in cases for injuries caused by lack of adequate warnings regarding prescription drugs. 

According to the summary and analysis of the opinion in the SCotUS blog, the opinion offers "clarity on the procedure for deciding pre-emption defenses, but little additional elucidation on the contours of those defenses."

You should read the full article (here), which explains that "[a] decade ago in Wyeth v. Levine, the court held that to succeed with the impossibility pre-emption defense, defendants had to produce “clear evidence” that the FDA would have prohibited an additional warning. Yesterday’s opinion in Albrecht attempted to clarify Wyeth’s application by explaining abstractly that the “clear evidence” standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof."

The court held that judges, rather than juries, should decide whether FDA actions pre-empt state tort suits alleging failure to warn consumers of adverse effects. This is a strategic win for drug manufacturers, clarifying that their go-to defense of “impossibility preemption” – the claim that federal regulation would have prohibited the additional warnings plaintiffs allege state tort law required – can be decided on motions before the case reaches a jury.

Jurist has a short summary here.

Interview with the author of recent book on generic drug regulation and the FDA

Here is a link to an interview with the author of “Bottle of Lies: The Inside Story of the Generic Drug Boom.” In the book, investigative journalist Katherine Eban works with two industry whistleblowers to expose how some manufacturers are cutting corners at the cost of quality and safety.

The second part of the report is here.

Coincidentally, the Supreme Court also just issued a decision on preemption in drug related cases, about which I will post separately.

NY Times article on lawsuits against Purdue Pharma for its role in fostering the opioid crisis

This morning the New York Times has posted an article on the lawsuits filed against the Sackler family and Purdue Pharmaceuticals for its role in the opioid crisis.  You can read it here.

NJ Supreme Court to decide whether defendant has a duty to warn about asbestos exposure due to a replacement part in its product

The New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  You can read the lower court opinion here.

Here is a link to a short article that summarizes the possible approaches to the question and the issues involved.