The family of a 20-year-old Florida man, who shot and killed himself after binging on the caffeinated malt liquor beverage Four Loko is suing the drink’s manufacturer, Phusion Projects, for wrongful death. The family says the drink made their son so manic and erratic that he accidentally shot himself. Does the suit have merit?
Jason Keiran, a sophomore at Florida State, spent the day of his death drinking — he is reported to have had at least three 23.5-oz. cans of Four Loko (equaling as much as alcohol as is contained in a dozen glasses of wine) as well as additional beers. He reportedly told friends that he “felt fine” because of the caffeine, but his blood alcohol content was .283 — more than 3.5 times the legal limit of .08 in Florida — when he put a friend’s .22-caliber pistol to his head and fired. (More on Time.com: The Most Dangerous Drugs? Alcohol, Heroin and Crack — in That Order)
The Keirans’ lawyer, Don Van Dingenen, told ABC News that the student’s friends reported some bizarre behavior: “They say he started to act crazy. He pointed the gun at his head and everyone else. He said, ‘I realize I’m freaking you guys out. Take the gun away from me,'” Van Dingenen said.
Keiran’s Sept. 17 death was one of several awful recent episodes involving Four Loko. The fruit-flavored alcoholic drink has been implicated in several deaths, at least one instance of gang-related torture, and has contributed to alcohol poisoning and in many cases hospitalization of teenagers and college students at several campus parties.
Critics of the brew say its mixture of caffeine and alcohol is not safe — experts say it results in a feeling of being “wide-awake drunk,” which prevents people from realizing how wasted they really are — and made even more dangerous to underage drinkers by its colorfully enticing packaging and overly sweet flavor. (More on Time.com: Study: Do Energy Drinks Lead to Alcohol Abuse?)
On Nov. 17, the Food and Drug Administration (FDA) agreed with the safety concerns, issuing a warning letter to Phusion Projects, along with three other makers of alcoholic energy drinks, saying their products were unsafe and illegal, and ordering them to move toward reformulating the drinks in 15 days. If the companies do not comply, the FDA may seek a court order to bar them from selling their products.
In anticipation of federal action and pressured by mounting public criticism — including outright bans of the drink in five states — Phusion had already announced on Nov. 16 that it would remove caffeine and other energy-boosting ingredients from its beverages.
The move didn’t help Keiran any. But the question, as far as the family’s lawsuit is concerned, is whether the manufacturer of the drink can be held liable for the student’s death. (Related Link: Exposure to Secondhand Smoke Linked to Hearing Loss)
For one thing, could his death have been a suicide? Suicide and alcohol tend to go hand in hand — one of the major risk factors for suicide is drug or alcohol abuse, especially binge drinking, and 25% of people who commit suicide are drunk when they end their lives, according to data from the Centers for Disease Control and Prevention (CDC). However, it isn’t the alcohol that causes suicide.
For their part, Keiran’s friends say his death was accidental, and his parents say he has no history of depression or suicidal tendencies. The medical examiner’s office has not ruled on whether the student’s death was accidental or a suicide.
Though it is difficult to come up with a legal precedent for the Keiran case, there have been several wrongful death suits involving alcohol and firearms, but most assign culpability with the person shooting and not with the alcohol he or she consumed. (More on Time.com: 4 Reasons Binge Drinking Is a Public Health Problem)
Paul D. Friedman, a wrongful death expert and partner at an Arizona law firm, who is not involved with the Keiran case, tells TIME that he had successfully sued for a client who was accidentally shot by an intoxicated coworker, finding fault with the intoxicated shooter and the intoxicated gun owner. That doesn’t bode well for the Keiran family.
Friedman says their lawsuit hinges on whether or not the family can prove that Keiran did not understand the effects of what he was consuming and that is, in fact, what Van Dingenen plans to argue.
Van Dingenen tells TIME that Keiran knew there was alcohol in the drink, and that he was using it as intended by the manufacturer: the 23.5-oz., 12% alcohol can is a single-serve product and is meant to be consumed at once. That’s the problem, Van Dingenen says — used as recommended, the product itself is unsafe. (More on Time.com: When Does Social Drinking Become “At-Risk” Drinking?)
While Keiran was underage, which could constitute “abuse” of the beverage, Van Dingenen argues that underage drinking in a college town is a “forseeable” danger, anticipated and well known by area business owners, university personnel and police.
ABC News reports that Phusion had no comment on the Keirans’ case because the company had not reviewed it. However, in a Nov. 10 open letter to federal and state regulators, Phusion stated:
While we don’t agree with the notion that mixing caffeine and alcohol is inherently unsafe, we do agree with the goal of keeping adults of legal age who choose to drink responsibly as safe and as informed as possible.
Friedman doesn’t believe the Keirans’ case would win against a jury, but he predicts Phusion Projects will agree to settle to avoid further bad publicity.
What’s certain is that binge drinking is a problem that is larger than Four Loko. One out of 3 adults and 2 out of 3 high school students who drink alcohol binge drink, according to recent government surveys. Startlingly, the data also suggest that 90% of the alcohol consumed by high-school kids and more than half of the alcohol consumed by adults is downed during the course of binge drinking.
Beyond increasing the risk of immediate and long-term harm to the drinker himself, binge drinking also increases behaviors such drunk driving, assault and risky sex that are dangerous to the general public.
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