Four Loko Brewer Must Face Death-Liability Suit

(CN) - The makers of Four Loko, an alcohol-infused energy drink, can be sued by the father of a college student who was shot to death by police after he drinking the beverage allegedly made him erratically, a California appeals court ruled.

Brett Fiorini sued City Brewing Co. - which brews and bottles Four Loko - for negligence and strict liability related to the death of his 23-year-old son, Ron Fiorini. The father alleged the combination of alcohol, a depressant, with caffeine and other stimulants, created a dangerous product.

On Oct. 5, 2010, Ron Fiorini, a student at Fresno Pacific University, drank two 23.5-ounce cans of Four Loko and some beer at a friends' apartment. His friends reported that he began acting agitated and disoriented, which was unlike him, the father's complaint says.

Fiorini drove home, where he talked to his roommates about an impending riot and told them, "they're coming to get us," while acting agitated and paranoid. Fiorini got his shotgun and began firing at targets in his backyard, the complaint states.

His roommates called police. When they arrived on the scene, Fiorini went onto the front porch with the shotgun on his shoulder, leading the officers to open fire. They shot Fiorini eight times, killing him instantly, the complaint says.

Brett Fiorini blames City Brewing for the death of his son, arguing that the amount of alcohol Ron Fiorini consumed that day would normally have caused him to be subdued or lose consciousness, but instead the high caffeine content in the drink caused him to remain awake and in an extremely disoriented and paranoid state of mind.

A trial court in Fresno found in favor of City Brewing pursuant to two California laws. The first law provides immunity to bartenders and party hosts from legal actions over the effects of the drinks they serve, and the second law bars suits over any "common consumer product" whose dangers are known to the average consumer.

A three-judge panel of the Fifth District Court of Appeal reversed the decision on Thursday, finding that City Brewing, as a manufacturer, is not protected by immunity because it did not actually give the drinks to Fiorini.

The law at issue relates to injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person.

"The phrase 'to an intoxicated person' suggests the furnisher would have some way of knowing whether or not the person was intoxicated, which further suggests that a furnisher would have some control over who received the beverage. This type of awareness and control is possible for social hosts, taverns, bars, and restaurants, but not for manufacturers who are far removed from the ultimate consumer," Judge Dennis Cornell wrote.

The panel also found that the mixture of alcohol, caffeine and other stimulants in Four Loko cannot be found, as a matter of law, to constitute a common consumer product.

Each 23.5-ounce can of Four Loko contained 12 percent alcohol by volume, which is the equivalent to five or six 12-ounce cans of beer. One drink also contained as much caffeine as two cups of coffee or three to four cans of soda, as well as the stimulants guarana, taurine and wormwood, according to the ruling.

The drink also contained sugar, natural and artificial flavors, and carbonation. Consumption of one can of Four Loko would cause a 225-pound man to be illegally intoxicated under California's traffic laws, the ruling states.

The drink allegedly acquired nicknames such as "liquid cocaine" and "blackout in a can."

The father's lawsuit cited a study stating that there was little scientific evidence on the interaction of alcohol and the substances in energy drinks and that there have been no studies as to the interactions of alcohol and taurine on "the cognitive performance in humans."

Another article cited in the lawsuit stated that students who mix alcohol with energy drinks of a higher prevalence of alcohol-related consequences and that the effects of caffeine and the other ingredients are not understood.

The U.S. Food and Drug Administration notified Phusion Projects, the makers of Four Loko, in November 2010 that that caffeine was an unsafe food additive in the alcohol drink. The Federal Trade Commission also issued a letter to Phusion stating that the product was deemed adulterated. Phusion then announced that it would begin reformulating Four Loko and remove the caffeine, according to the lawsuit.

Because the product in the form that Fiorini ingested it essentially only lasted from 2005 until late 2010, the short timeframe that it was in existence supports the inference that Four Loko was not a common consumer product, the appeals court found.

Additionally, the articles and studies cited by Fiorini's father "indicate the combination of stimulants and alcohol in Four Loko was not a common consumer product," Cornell said.

Because these inferences preclude the panel from finding that Four Loko was a common consumer product as a matter of law, the issue must be presented to a jury.

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