[Update: A month after I posted the below article, researchers at the Radiological Society of North America’s annual meeting presented a cardiac MRI study showing that consumption of energy drinks “increased peak strain and peak systolic strain rates in the heart’s left ventricle,” which could potentially trigger arrhythmias.]
Few headlines are as cringeworthy to upstanding trial lawyers as those which include a phrase like “$85 million lawsuit alleges,” and earlier this week the New York Daily News reported “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”
As Eric Turkewitz aptly explains about the “$85 million dollar” Red Bull wrongful death lawsuit, this practice is prohibited in many venues — like New York, where the case was filed — and yet lawyers do it anyway, either out of ignorance about the rules or to attract attention. At least here, though, our attention is drawn to what looks like an interesting case.
First, let’s start with the medicine: is it possible Red Bull contributed to the death of 33-year-old Cory Terry during a basketball game? I think the answer is clearly “maybe.” The article says his death certificate lists the cause of death as “idiopathic dilated cardiomyopathy.” “Dilated cardiomyopathy” is generally an enlargement of the heart’s left ventricle, which affects pumping, and “idiopathic” is medical speak for “I don’t know what happened to this patient.” (“Idiopathic” is a mashup of the ancient Greek words idios and pathos, together meaning “one’s own suffering.”)
In the medical field, idiopathic dilated cardiomyopathy is a complicated, frustrating problem. Consider this 2012 research article:
Despite recent advances in the management of patients with heart failure, morbidity and mortality rates remain high. Common causes of heart failure are ischaemic heart disease, uncontrolled hypertension and valvular disease. However, in up to 50 % of the cases its exact cause remains initially unknown; this condition is called idiopathic dilated cardiomyopathy (DCM).
We thus don’t know the cause of half of all heart failures, but we do know that stimulants, particularly cardiac stimulants like caffeine, can raise heart rates and cause palpitations and arrhythmias and thus can contribute towards heart failure in patients with cardiomyopathy. As The Cardiomyopathy Association says, “General advice is that people should minimise their caffeine intake.”
In sum, while we might not know the precise nature of his underlying heart problems, it is plausible — I would say likely — that the stimulants in the Red Bull contributed to his heart failure.
But does that make Red Bull responsible for his death?
To answer that question, let’s look at the complaint (courtesy of Eric Turkewitz). It alleges six claims: strict liability (design defect), strict liability (failure to warn), negligence (design, manufacture, and sale), negligence (failure to warn), fraud, breach of implied warranties, and punitive damages.
There are significant differences between claims framed as “strict liability” versus “negligence,” differences that aren’t worth going into here. The case really boils down to two strict liability claims, one for a “design defect” and the other for a “failure to warn.”
Starting with design defect, the law of New York is similar to the law of most places:
In order to establish a claim based on a design defect, plaintiff must show that the product was designed in such a way “that it was not reasonably safe” (Voss v Black & Decker Mfg. Co., 59 NY2d at 107); i.e., “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108).
This standard demands an inquiry into such factors as (1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes” (Denny v Ford Motor Co., 87 NY2d 248, 257  [citation omitted]).
Fitzpatrick v. Currie, 52 AD 3d 1089 (NY App. Div., 3rd Dept., 2008).
Starting with the assumptions, as a recent study found, that “Less than one-half of people in most countries are sleeping well every night” and “One-fourth of those in the United Kingdom, the United States and Canada say they rarely or never get a good night’s sleep during the work week” and “One in five from the United States, Japan and the United Kingdom report sleeping less than 6 hours a night during the work week,” we can safely assume that there is a very large market for “‘energy’ and increased awareness.’” Assuming it works as advertized — and many people say it does — the “utility” of Red Bull is quite great to the public as a whole.
But here’s where I think they have the biggest problem with the design defect claim. Re-read elements (4) and (5) of the standard described above. The Cory Terry complaint alleges this:
41. The risks associated with ingesting RED BULL outweigh any claimed or perceived benefits. There are practicable, feasible, and safer alternatives to achieve “energy” and increased awareness that do not present the severe health that accompany RED BULL.
To which I must ask: like what? I’m unaware of any way to make a single, over-the-counter product that increases “energy” as much as Red Bull without using the very ingredients claimed by Red Bull, i.e. “Caffeine + Taurine + B-Group Vitamins + Sucrose & Glucose.” Maybe Cory Terry’s lawyers have some ideas.
But Red Bull nonetheless may have a serious problem with the failure to warn. The law of New York is again very similar to the law in most States:
A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known (see, Liriano v Hobart Corp., supra; Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297) and a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable (see, Liriano v Hobart Corp., supra; Lugo v LJN Toys, 75 NY2d 850; McLaughlin v Mine Safety Appliances Co., 11 NY2d 62). However, the duly to warn of a product’s danger does not arise when the injured party is already aware of the specific hazard or the product-connected danger is obvious (see, Lonigro v TDC Electronics, Inc., 215 AD2d 534, 535-536).
Kruger v. Packaging Mach. Tech.. The Terry complaint thus alleges:
51. Ordinary consumers would not have recognized the potential risks and side effects associated with ingesting RED BULL.
52. When placing RED BULL into the stream of commerce, Defendant failed to provide adequate warnings of the risks associated with the product. Defendant failed to warn consumers of the true risks and dangers — and of the symptoms, scope and severity of the potential side effects of the RED BULL drinks that Plaintiff–Decedent consumed, such as significantly increased risk of strokes, blood clots, heart attacks and cardiac arrhythmias.
Take a moment to review Red Bull’s own website, being sure to scroll down to “WHEN TO DRINK,” which helpfully answers “On the road, during lectures & study sessions, at work, while doing sports, playing video games, or going out day and night” juxtaposed with a variety of images of people doing a variety of hip and fun things, including a man running up a 45-degree hill in the middle of a mountain range.
There’s no warning at all on that page, but there is a page for “Is Red Bull Energy Drink Safe?” The answer is:
Red Bull Energy Drink is available in more than 165 countries, including every state of the European Union, because health authorities across the world have concluded that Red Bull Energy Drink is safe to consume. More than 5 billion cans were consumed last year and about 35 billion cans since Red Bull was created more than 25 years ago.
One 250 ml can of Red Bull Energy Drink contains 80mg of caffeine, about the same amount of caffeine as in a cup of coffee. With regards to the other key ingredients the European Food Safety Authority concluded in 2009 that these are of no health concern.
It’s a carefully-calculated warning that no doubt was written by lawyers, expressly admitting no risks at all while giving Red Bull a little bit of wiggle room to say that, by referencing the caffeine content, they’re warning consumers there are indeed risks. Note the switch in the last sentence from “caffeine” to “the other key ingredients.” Red Bull implicitly references the risks of caffeine, then expressly claims the other ingredients have no risks, but Red Bull never even discusses the risks of the two together. The Red Bull can and box have no warnings at all. (Picture of the box here.)
That may be a problem given scientific and medical research with conclusions like this:
An otherwise healthy 28-year-old man had a cardiac arrest after a day of motocross racing. He had consumed excessive amounts of a caffeinated “energy drink” throughout the day. We postulate that a combination of excessive ingestion of caffeine- and taurine-containing energy drinks and strenuous physical activity can produce myocardial ischaemia by inducing coronary vasospasm.
The FDA, too, has received reports of serious heart problems apparently triggered by Red Bull.
Which brings us to the core of the problem for Red Bull. I spent two minutes coming up with this potential warning to put on the can:
RED BULL CONTAINS STIMULANTS, INCLUDING CAFFEINE. All stimulants pose a risk of causing serious, potentially fatal conditions like a heart attack, even in apparently healthy individuals. Please talk with your doctor about using any stimulant.
Why isn’t such a warning on Red Bull? Would such a warning have prevented Cory Terry from drinking a can during a basketball game?
Those are the questions a jury will have to decide.