The parents of a 14-year-old girl who allegedly died after consuming two 24-ounce Monster Energy® drinks in a 24-hour period have filed a wrongful death and strict product liability lawsuit against Monster Beverage Corp. in a California state court. Crossland v. Monster Beverage Corp., No. RIC 1215551 (Cal. Super. Ct., Riverside Cnty., filed October 17, 2012). They claim that the teen went into cardiac arrest and was placed in an induced coma at Johns Hopkins Hospital to reduce brain swelling. After six days, life support was terminated, and the girl died. The plaintiffs allege that the autopsy report attributed her death to “cardiac arrhythmia due to caffeine toxicity complicating mitral valve regurgitation in the setting of Ehlers-Danlos syndrome.”

The complaint contends that two of the company’s energy drinks contain 480 milligrams of caffeine, the equivalent of 14 12-ounce cans of caffeinated soda. Among other matters, the plaintiffs allege that the company classifies its beverages as dietary supplements to avoid “meaningful regulation of its product by the U.S. Food and Drug Administration [FDA],” fails to warn consumers about known risks and side effects of consuming the products, and “failed to conduct adequate testing, studies or clinical testing and research, and similarly failed to conduct adequate marketing surveillance regarding MONSTER ENERGY’s adverse effects upon the cardiovascular health of consumers.” Claiming that the company “heavily markets” its products to teens and young adults, the complaint also targets other product ingredients, including guarana and taurine, which the plaintiffs assert have synergistic effects with caffeine on human health, such as cardiac arrest.

Alleging strict liability (design defect and failure to warn), negligence (design, manufacture and sale), negligence (failure to warn), fraud, breach of implied warranties, willful disregard for the health and safety of consumers (punitive damages), and wrongful death, the plaintiffs seek compensatory damages for past medical expenses, funeral and burial expenses, past and future mental and emotional distress, interest, attorney’s fees, and costs.

According to news sources, FDA disclosed, after the lawsuit was filed, that it had received notice since 2009 of five deaths purportedly related to the consumption of the company’s caffeinated beverages and was conducting an investigation. FDA spokesperson Shelly Burgess reportedly said that it was not yet clear that the drinks actually caused or contributed to the adverse events. Still, FDA responded in August 2012 to Senator Dick Durbin’s (D-Ill.) request that the agency take action on energy drinks by indicating that caffeine intake of up to 400 milligrams per day is not associated with untoward health effects for most healthy adults. Additional information about FDA’s response appears in Issue 451 of this Update.

With its share price falling 23 percent over two days since FDA confirmed its investigation, Monster Beverage expressed its sympathy to the family that filed the lawsuit, but contended, “Monster does not believe that its products are in any way responsible for the death of Ms. Fournier and intends to vigorously defend the lawsuit.” The company contends that tens of billions of energy drinks have been sold and consumed without incident throughout the world for 25 years, including in excess of 8 billion Monster Energy drinks since 2002. “The company monitors consumer communications it receives, is unaware of any fatality anywhere that has been caused by its products and has never before been the subject of any lawsuit of this nature,” the company said. It also noted that Monster Energy® drinks contain 10 milligrams of caffeine per ounce which compares to 20 milligrams per ounce of freshly brewed coffee. It also pointed to warning labels recommending that children or those sensitive to caffeine not consume the product.

Details about a putative securities class action filed against the company for allegedly filing false and misleading financial statements after news that a state attorney general had subpoenaed company advertising, marketing, ingredients, usage, and sale records also appear in Issue 451 of this Update. Investors are reportedly concerned about the latest energy drink developments, including a report issued in November 2011 by the Substance Abuse and Mental Health Services Administration indicating that 13,114 emergencyroom visits involving energy drinks were logged in 2009, ten times the number reported in 2005.

Meanwhile, a putative nationwide class action has been filed against a company that makes REDLINE Xtreme® Energy Drink Watermelon Flavor, alleging that class members “did not bargain for adverse health effects in exchange for their payment of the purchase price.” Mirabella v. Vital Pharm., Inc., No. 0:12-cv-62086-WJZ (U.S. Dist. Ct., S.D. Fla., filed October 23, 2012). While the named plaintiff contends that he was hospitalized with adverse health effects, such as chills, excessive sweating, vomiting, convulsions, chest pain, and rapid heartbeat, he does not seek recovery for personal injury. Alleging violations of Florida’s Deceptive and Unfair Trade Practices Act, unjust enrichment, breach of implied warranties of fitness for purpose and merchantability, and violation of the Magnuson-Moss Warranty Act, the plaintiff seeks actual and compensatory damages, injunctive relief including a corrective advertising and labeling campaign, equitable monetary relief, interest, attorney’s fees, and costs. See Law360, October 22 and 25, 2012; The Wall Street Journal, October 22 and 24, 2012; and The New York Times, October 23, 2012.