FRESNO, Calif. (CN) - Sued by a family whose son was shot to death by police after he drank two caffeine-laced alcohol drinks, Phusion has sued Fresno, claiming the police, not the booze and caffeine, are to blame for it.
Phusion Projects sued the City of Fresno in Superior Court.
Phusion itself was sued on Nov. 1, 2011, by the family of the late Rod Fiorini, a college student whom police shot to death in his own back yard on Oct. 25, 2010.
According to the new complaint, in the first lawsuit Fiorini's parents, Brett and Pamela, claimed their son had "consumed two cans of an 'alcoholic energy drink' created by plaintiff and thereafter exhibited very unusual behavior and began acting in 'an irritated, agitated, and disoriented manner,' (ii) Rod. A Fiorini then 'made statements concerning an impending 'riot,' and stated 'they're coming to get us,'' (iii) Rod. A Fiorini retrieved his shotgun from his bedroom, loaded it, and began firing at targets in his backyard, (iv) after Rod A. Fiorini's roommate contacted 9-1-1 and summoned police assistance, City of Fresno police officers responded to the scene, at which point Rod. A Fiorini exited his home with 'his gun resting on his shoulder,' and (v) the Fresno Police Department 'officer thereafter opened fire, and Rod A. Fiorini was shot eight (8) times and died instantly.'"
Phusion filed a demurrer and sought dismissal without leave to amend. It says in its complaint that the court granted this on Oct. 30 this year.
Also in response to the complaint, Phusion submitted a claim for damages to the City of Fresno, seeking indemnity and contribution from the city and its Police Department for any damages for which Phusion might be held responsible, but the City denied the claim, according to the complaint.
Phusion says that after demurral was granted it informed the Fresno city attorney that Phusion's deadline for filing an action on the denied claim was Nov. 30 this year. It sought a tolling agreement with the city, suspending the deadline, pending the exhaustion of the period of appeal available for the Fiorinis. Fresno declined. So Phusion filed this lawsuit to preserve its rights to recovery pending final judgment in the underlying action.
Phusion claims that if anyone should be held responsible for Rod Fiorini's death, it is the City of Fresno, whose police officers fired the shots, and that any liability established "will be due to the conduct of defendants."
Phusion makes Four Loko, a malt liquor which prior to late 2010 was boosted with caffeine, guarana and taurine. It has faced a number of lawsuits concerning the drink. It announced on Nov. 16, 2010, that it would remove the caffeine, guarana and taurine from its products - one day before the U.S. Food and Drug Administration issued warnings to Phusion and three other companies about the dangers of caffeinated alcoholic beverages.
The FDA said in a statement at the time that "caffeine can mask some of the sensory cues individuals might normally rely on to determine their level of intoxication," and that "peer-reviewed studies suggest that the consumption of beverages containing added caffeine and alcohol is associated with risky behavior that may head to hazardous and life-threatening situations."
The FDA threatened further action against the four companies, including the possibility of seizing their products and preventing them from continuing to produce the products.
Although Phusion said it would remove the caffeine from Four Loko, it said at that time that is still believed "that the combination of alcohol and caffeine is safe."
Phusion is represented by Anthony Vignolo, with Downey Brand, of Stockton.