Tort Law & Social Equality Project lecture series

 I just recently learned of an online lecture series on advanced torts topics.  The series is hosted by a Canadian organization called the Tort Law & Social Equality Project, whose goal is to foster an awareness of the many inadvertent ways in which legal rules within tort law reinforce and perpetuate systemic social inequalities.  Their website is available here.  From there you can click on the “speaker series” tab if you want to watch the lectures live, or you can watch the videos later on their YouTube channel, here. 

 

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.

Complaint essentially alleges that employer worked decedent to death

 Courthouse News Service is reporting that a widow has filed a complaint arguing that the production team behind the NFL’s “Hard Knocks” sports documentary series overworked her husband to the point of exhaustion, which she said caused the man to develop chronic fatigue and ultimately die in a car accident on his way home from an overtime shift as a production assistant. 

CNS has the story and a link to the complaint here.

Another lawsuit for Wrongful Life based on the destruction of embryos

About Lawsuits is reporting on a recently filed complaint in the U.S. District Court for the Western District of North Carolina by a couple claiming the defendant's product killed an embryo after it was implanted in the mother as part of an IVF procedure.  The claim is similar to a number of other claims filed against another company making the same claims.  About Lawsuits has the full story here.

You probably remember that last summer a case in Alabama gathered a lot of attention because the court recognized a possible cause of action for wrongful death as a result of the destruction of frozen embryos.  I commented on that case here, here, here and here.

Since then, similar cases have been brought against companies that manufacture the substance in which embryos are kept after they are fertilized but before they get implanted in the mother.  The case filed in North Carolina is one of those.

In the complaint, the plaintiffs argue that a fertilized embryo is a human life and that, therefore, the defendant (FujiFilm) should be held responsible for the wrongful death of their unborn child.

Interestingly, as reported, the story assumes that conception happens when the egg is fertilized, which happens before the egg is implanted.  In other jurisdictions, there is a debate as to whether life begins at that point or whether it begins when the egg is implanted.  Because the egg was implanted in the North Carolina case, that question does not appear to be an issue there.

If you are interested in the question of whether courts should recognize a cause of action for wrongful death of embryos, go read the story here.  It sounds like there are quite a few pending cases and, therefore, there may be interesting decisions coming in the near future.

California expands the notion of "present at the scene" and "a contemporaneous sensory observance" of an accident for purposes of a claim for emotional distress of a bystander

 You probably remember from law school the development of the law related to claims by bystanders for emotional distress at witnessing someone else suffer an injury.  It originated in California with the famous case of Dillon v. Legg in which a mother saw a car hit one of her daughters.  In that case, the mother was not within the so-called zone of danger and would not have recovered under the applicable doctrine at the time, but the court adopted a new approach to the question.  Under the new approach, a bystander outside the zone of danger could support a claim if she could show that she had a close personal relationship with the victim, that she had a contemporaneous sensory observance of the accident and that she was present at the scene of the accident.  

Since that case was decided, the new approach was slowly adopted by a small majority of jurisdictions and law professors like me have explored the different possible consequences of its application by creating hypos involving all sorts of complicated scenarios.  In one of my hypos, for example, I ask the students, what if the mother is watching the Olympics on TV and witnesses an accident to the daughter on TV

Some jurisdictions have also explored different variations of the scenario.  For example, some have decided cases explaining how this type of claim should be decided if the plaintiff is away from the scene of the accident and only hears about it from someone else who witnesses it, or if the plaintiff does not see the accident, but sees its aftermath, or if the plaintiff does not see the accident but hears it, and so on.

I am writing about this today because I just saw an article in the ABA Journal reporting that a new case in California has finally decided one of the typical law school hypos:  what if the plaintiff is not at the scene but has a contemporaneous sensory observance of it by "technology."  

In this new case, the court held that a mother who heard her daughter’s car crash while giving her directions by cellphone has a right to recover.  The case is called Downey v City of Riverside, and you can read it here.

In my opinion, the decision is not surprising.  Granted the plaintiff was not "present at the scene" as originally required by Dillon v Legg, but I always thought that the element of having a contemporaneous sensory observance would become more important if the technology involved could at least provide some support for a feeling of "presence" at the scene.  In the end, however, it seems that the trajectory of the doctrine is heading toward minimizing the need for presence at the scene as long as the element of a contemporaneous sensory observance is strong.

As always, it is interesting to see how the common law expands and contracts as time goes on and it will be interesting to see where the courts go from here.

Lawsuit filed against OceanGate, the company involved in the submersible implosion on the way to the Titanic

You may recall that last year a controversial company named OceanGate was involved in an accident that resulted in the death of a number of people in a submersible on the way to visiting the remains of Titanic.  If not, google it, it was all over the news.  I say "controversial" because following the news of the disappearance of the submersible, and the long rescue attempt, news surfaced about the very questionable - to say the least - practices of the company, including reports that documented its reckless handling of safety issues.  (There was a 60 Minutes segment, among many others.  Some of those programs are available on YouTube.  See here and here for example.)

Given this uncovered safety - or lack thereof - history, it is not surprising that the family of a French citizen who died in the implosion has filed wrongful death lawsuit against OceanGate, which, also not surprisingly, has ceased operations.

You can read about the newly filed claim in The Guardian, Courthouse News Service, and NPR and The Hill.

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.

If you are considering a new casebook for your course...

 Carolina Academic Press recently published the second edition of Torts: A Modern Approach by Alex B. Long and Teri Dobbins Baxter. Its description states as follows:

This casebook takes a modern approach to the learning that takes place in the first year of law school. It utilizes a mix of classic torts cases and more recent cases, and the notes are limited in number and length to keep students engaged.  Each chapter begins with an outline of key concepts and also a hypothetical set of facts that students can use to orient themselves throughout the chapter. There are also short problems throughout each chapter, which build on the chapter-opening hypothetical, requiring students to apply the law. At the end of each chapter or section there is a short issue-spotting essay question related to chapter content.

Meanwhile, West Academic has published a new fourth edition of Torts, A Contemporary Approach, by Meredith J. Duncan, Ronald Turner and Rory D. Bahadur, which is described as follows: 

This casebook is organized to facilitate the study of law in the first year of law school with a focus on the study of tort law in particular. This casebook is unique, as its authors are both award-winning law teachers whose methods and strategies have been studied and featured in the Harvard University Press book, What the Best Law Teachers Do. As people of color, first-generation lawyers, and experienced law teachers, both authors have invested significant time throughout their careers exploring and developing effective teaching tactics and techniques to maximize the learning of all students in their classrooms. As a result, they have designed this casebook with both students and instructors in mind. This 4th edition has at least two major structural changes from previous editions. The first is that the 4th edition employs the directed reading approach, designed to make learning more efficient and mitigate the effect of privilege in law school learning. See Kris Franklin and Rory Bahadur, Directed Questions: A Non-Socratic Dialogue about Non-Socratic Teaching, 99 U. DET. MERCY L. REV. 1 (2021). In utilizing this method, the authors have included questions before every principal case designed for students to answer on their own when reading the cases before coming to class. Second, this 4th edition has fewer reinforcing or repetitive cases when one case is sufficient to teach the principle of law. Accordingly, several of the cases appearing in previous editions have been removed. The text begins with an overview of tort law, pointing out distinctions between tort law and other types of law. It then covers intentional torts, negligence actions, and strict liability, covering all topics in detail. The materials presented build on foundational principles by exploring more advanced tort subjects such as nuisance, products liability, and defamation and privacy law. This versatile textbook includes classic cases as well as contemporary cases relevant to today's students. In addition to having discussion questions and hypotheticals throughout, the text also includes graphics illustrating many of the principles covered in the text. The text is available in both hardbound and electronic format and features Internet links for the student's use. For faculty adopting the book, there is a comprehensive teacher's manual, complete with PowerPoint slides ready for classroom use. In addition to the thought-provoking discussion questions throughout the text, the teacher's manual contains additional discussion suggestions that will be useful for all levels of teaching, ranging from the newest professor to those who have taught torts for years. New problems and hypotheticals are included to test student comprehension.  This edition utilizes the CasebookPlus™ platform. Anchored by faculty-authored self-assessments, CasebookPlus allows students to test their understanding of core concepts as they are learning them in class with quizzes keyed to each chapter, subject area review quizzes, and helpful explanations. Learn more at Faculty-CasebookPlus.com.

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)