A pair of products liability lawsuits against the maker of the Four Loko energy drink could hinge on whether a product that combines alcohol with caffeine is “unreasonably dangerous” to the consumer.

Phusion Projects may be the most beleaguered beverage manufacturer in America right now, with four states having banned Four Loko and one U.S. senator describing it as “almost a death wish disguised as an energy drink.” The backlash has been fueled in part by incidents in which college students were hospitalized after drinking it.

Four Loko contains alcohol and four stimulants — caffeine, guarana, taurine and wormwood. And according to two suits filed last month in Florida, that is “a dangerous and potentially fatal combination” of ingredients.

The family of Jason Keiran, a Florida State University sophomore, filed one of the suits, alleging his consumption of at least three cans of Four Loko — the alcohol equivalent of 18 light beers and six cups of coffee — made him so intoxicated and wired that he accidentally shot himself to death on Sept. 17.

“At the time of his death, Jason M. Keiran had been awake for over 30 hours, and was in a disoriented and agitated state,” the complaint says.

The plaintiff in the other case, 20-year-old Janice Rivera, was a passenger in a car that crashed on a Sanford, Fla., highway in August, severing her arm. She and the driver, Danielle Joseph, had been drinking Four Loko that night.

“Because of the stimulant and highly intoxicating effect of Four Loko ... [Joseph] was overly stimulated and intoxicated” and drove her vehicle “in a reckless and careless manner,” Rivera says in her complaint.

There is no precedent for a products liability suit involving caffeinated alcoholic drinks but both the Keiran family and Rivera say Four Loko was sold “in a defective condition, unreasonably dangerous to users,” making Phusion Projects strictly liable for Jason Keiran's death and Rivera's injuries.

Jason Keiran

Keiran, 20, shot himself in the head with his roommmate's gun. "But for Four Loko's dangerous condition and propensities, Jason M. Keiran would not have remained awake — yet intoxicated, disoriented and agitated — into the afternoon hours of September 17, 2010, and would not have suffered a fatal, accidental gunshot wound," his family says.

Under Florida law, an “unreasonably dangerous” product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” That excludes such products as whisky, the intoxicating dangers of which would be known to the ordinary consumer.

“Strict liability,” the Florida Supreme Court has noted, “does not make the manufacturer or seller [of a product] an insurer” of its safety. West v. Caterpillar Tractor, 336 So.2d 80 (1976).

The Keiran family argues that Four Loko is unreasonably dangerous because

when using alcoholic energy drinks such as Four Loko, users become desensitized to the symptoms of intoxication, which increases the potential for alcohol-related harm, such as alcohol poisoning, physical injury, impaired driving, and sexual victimization.

Indeed, a recent study of college students found that those who drank alcohol mixed with energy drinks were twice as likely as students who drank only alcohol to ride with a driver under the influence, get hurt or injured, require medical treatment, take advantage of another person sexually, or be taken advantage of sexually.

But whether such “desensitization” is enough to distinguish Four Loko from whisky could be a close question. Referring to the combination of alcohol and caffeine, Phusion Projects has said, "If it were unsafe, popular drinks like rum and colas or Irish coffees that have been consumed safely and responsibly for years would face the same scrutiny that our products have recently faced."

The plaintiffs suing Phusion could also face causation problems since Keiran's death appears attenuated from his consumption of Four Loko and Rivera is a third party who was allegedly injured as a result of her friend's intoxication. A design defect in a product must be “a substantial factor” in causing an alleged injury.

Taking a different approach, a California woman last week filed a proposed class action against Phusion for falsely advertising Four Loko. Her attorneys formerly represented plaintiffs in a series of ill-fated class actions over the packaging of cereals such as Froot Loops and Cap'n Crunch's Crunch Berries.

Phusion has announced it will remove caffeine, guarana and taurine from Four Loko, citing the "difficult and politically-charged regulatory environment at both the state and federal levels."

By Matthew Heller
12/1/10