Cook v. MillerCoors LLC et al
Filing
64
ORDER: Defendant MillerCoors LLC's Motion to Dismiss Plaintiff's Amended Complaint 47 is GRANTED. This case is dismissed with prejudice. The Clerk is directed to enter judgment in favor of MillerCoors and thereafter close this case. Signed by Judge Virginia M. Hernandez Covington on 5/25/2012. (CAC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEATHER LYNN COOK,
Plaintiff,
v.
Case No. 8:11-cv-1488-T-33EAJ
MILLERCOORS, LLC, ET AL.,
Defendants.
________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
MillerCoors
LLC’s
Motion
to
Dismiss
Plaintiff’s
Amended
Complaint (Doc. # 47), filed on December 28, 2011. Plaintiff
Heather Lynn Cook filed an Opposition to the Motion (Doc. #
50) on January 23, 2012. The Court held a hearing on April 25,
2012, and deferred ruling on the Motion. (Doc. # 61). For the
reasons that follow, the Court grants the Motion.
I.
Background
Cook seeks compensatory and punitive damages against
MillerCoors
for
injuries
she
sustained
in
a
motorcycle
accident on July 18, 2008. (Doc. # 43). John Prado, operator
of the motorcycle, had consumed several containers of Sparks,
an alcoholic energy drink, prior to the crash. (Id. at ¶ 2).
Mr. Prado was killed in the accident. Cook contends that
MillerCoors, the manufacturer of Sparks, should be held liable
for her injuries. She alleges that Sparks is qualitatively
different from “conventional” alcoholic beverages because of
its stimulant ingredients, and MillerCoors knew or should have
known of its potentially harmful effects.
Cook’s original Complaint asserted three counts against
MillerCoors: failure to warn (Count I), design defect (Count
II) and negligent manufacture (Count III). (Doc. # 3). She
argued
that
alcoholic
energy
drinks
such
as
Sparks
are
“uniquely dangerous” because they appeal to younger drinkers
and because the addition of caffeine enables one to drink more
alcohol without feeling as intoxicated as one normally would.
(Id. at ¶ 6). Despite this perception, however, the stimulants
do not reduce alcohol’s negative effects on motor skills and
visual reaction times. (Id. at ¶ 9).
This Court dismissed Counts I and II without prejudice
and Count III with prejudice on October 28, 2011. (Doc. # 39).
The Court found that Cook had not established a duty to warn
because “the dangers inherent in alcohol consumption are well
known to the public.” Bruner v. Anheuser-Busch, Inc., 153 F.
Supp. 2d 1358, 1360 (S.D. Fla. 2001); see also Robinson v.
Anheuser-Busch, Inc., No. Civ.A.-00-D-300-N, 2000 WL 35432556,
at *2 (M.D. Ala. Aug. 1, 2000) (“[C]ourts have usually found
that alcohol manufacturers and retailers do not have a duty to
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warn consumers about the risks posed by the excessive use, or
prolonged use of alcohol because those risks are common
knowledge.”);
Victory
over
Addiction
Int’l,
Inc.
v.
Am.
Brands, Inc., No. 97-14489-Civ-Ryskamp, 1998 U.S. Dist. Lexis
23542, at *8 (S.D. Fla. Feb. 4, 1998) (finding no duty to warn
because of the “universal recognition of all potential dangers
associated with alcohol.”). Similarly, the Court found that
Cook’s design defect claim failed because alcoholic beverages
are “not considered unreasonably dangerous” under Florida law.
Bruner, 153 F. Supp. 2d at 1360.
This Court dismissed Cook’s negligent manufacture claim
with prejudice because she failed to establish a duty and
because “voluntary drinking of alcohol is the proximate cause
of an injury, rather than the manufacture or sale of those
intoxicating
beverages
Furthermore,
§
768.125
to
of
that
the
person.”
Florida
Id.
at
Statutes
1361.
limits
liability for the sale of alcoholic beverages with express
exceptions for two specific classes of persons--minors and
alcoholics. Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042,
1047 (Fla. 1991).
In her original Complaint, Cook alleged that “[t]he
United States Food and Drug Administration does not recognize
any of the stimulants and other non-traditional ingredients
[in Sparks] as Generally Recognized as Safe (GRAS) for use in
-3-
alcoholic beverages.” (Doc. # 3 at ¶ 7). However, Cook failed
to establish a correlation between the lack of FDA recognition
of the additives and the safety of the product. Furthermore,
the Court did not consider new allegations that Sparks was
unlawfully marketed “without approval from the FDA.” (Doc. #
26 at 16). The Court granted Cook leave to amend the pleadings
to flesh out those allegations.
In her Amended Complaint filed on November 28, 2011, Cook
reasserts claims for design defect (Count I) and failure to
warn (Count II) against MillerCoors. (Doc. # 43). MillerCoors
moves to dismiss, arguing that Cook “has repackaged the same
facts from her initial Complaint to attempt to evade the
firmly established precedent cited in the Court’s October 28,
2011, decision.” (Doc. # 47 at 1).
II.
Legal Standard
In deciding a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), this Court must accept as true
all factual allegations in the complaint and construe them in
the light most favorable to the plaintiff. See United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). While
such factual allegations need not be detailed, “a plaintiff’s
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
-4-
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotations and citations omitted).
“To survive dismissal, the complaint’s allegations must
plausibly suggest that the plaintiff has a right to relief,
raising that possibility above a speculative level; if they do
not, the plaintiff’s complaint should be dismissed.” James
River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274
(11th Cir. 2008) (internal quotations and citations omitted).
A plausible claim for relief must include “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
In
this
diversity
case,
the
Court
applies
Florida
substantive law unless federal constitutional or statutory law
compels a contrary result. Tech. Coating Apps., Inc. v. U.S.
Fid.
&
Guar.
Co.,
157
F.3d
843,
844
(11th
Cir.
1998).
Furthermore, this Court must apply Florida law in the same
manner as would the Florida Supreme Court. Brown v. Nichols,
8 F.3d 770, 773 (11th Cir. 1993).
III. Analysis
As discussed above, courts have generally held that
purveyors of alcoholic beverages are not liable for injuries
resulting from alcohol consumption. Cook asks this Court to
deviate from this body of case law and pioneer new legal
-5-
territory because Sparks is qualitatively different from
“conventional” alcoholic beverages. The Court declines to do
so.
A.
Cook
Design Defect
alleges
that
her
injuries
were
the
result
of
MillerCoors’s defective design of Sparks. (Doc. # 43 at ¶ 18).
“A product is defective when it ‘is, at the time it leaves the
seller’s
hands,
in
a
condition
not
contemplated
by
the
ultimate consumer, but which will be unreasonably dangerous to
him.’” Bruner, 153 F. Supp. 2d at 1360 (quoting Rest. 2d Torts
§ 402A Cmt. g). The objective viewpoint of the general public
forms the basis for determining whether a design is defective.
Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th Cir. 1999).
Alcoholic beverages are “not considered unreasonably dangerous
as defined by the Restatement (Second) of Torts” because the
dangers associated with alcohol are well known. Bruner, 153 F.
Supp. 2d at 1360-61.
Cook asserts that the risks associated with Sparks “are
not common knowledge to youthful drinkers having experience
with conventional alcoholic beverages.” (Doc. # 43 at ¶
16(d)). Her Amended Complaint eliminates much of her prior
discussion as to Mr. Prado’s intoxication and his lack of
awareness of his impairment. Instead, she focuses on “the
special risks posed to youth by drinks like Sparks, and
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particularly
the
risks
of
excessive
drinking
without
appreciation for the resulting impairment in physical and
mental capabilities.” (Id.). She supports these allegations
with references to scientific research and efforts by state
attorneys general to remove alcoholic energy drinks from the
market because they can “lead to binge drinking, unsafe
driving, and other risky behaviors” among youth. (Id. at ¶ 1012). Cook asserts that science establishes an ”objective”
standard because the dangers of alcoholic energy drinks are
“not peculiar to any individual.” (Doc. # 50 at 6).
This Court is not convinced that “the special risks posed
to
youth”
make
Sparks
unreasonably
dangerous
from
the
perspective of the general public. More significantly, Cook’s
argument overlooks an important point: the alleged “special
risks” manifest themselves only if the consumer chooses to
drink in excess. The case law recognizes that anyone who
drinks alcohol may become impaired and may not be able to
discern his or her impairment. That does not make alcoholic
beverages unreasonably dangerous or absolve the drinker of
responsibility. The court in Brown Forman Corp. v. Brune, 893
S.W.2d 640, 645 (Tex. App. 1995), summed it up this way:
The common law has long recognized that the
alcoholic beverage drinker maintains the ultimate
power and thus the obligation to control his own
drinking behavior. We believe that the common law
-7-
should remain focused on the drinker as the person
primarily responsible for his behavior.
Id. (citation omitted). In other words, any adult who drinks
alcohol must do so with the knowledge that impairment, injury
or even death may occur.1 Thus, in accordance with wellestablished precedent, this Court concludes that Sparks is not
unreasonably dangerous.
Even assuming, arguendo, that Sparks could be considered
unreasonably dangerous, Cook’s design defect claim fails. To
sustain a defective product claim, a plaintiff must show not
only that the product was unreasonably dangerous but “that it
caused the injuries of which the Plaintiff complains.” Barrow
v. Bristol-Myers Squibb, No. 96-689-CIV-ORL-19B, 1998 WL
812318, at * 27 (M.D. Fla. Oct. 29, 1998). Under Florida law,
“voluntary drinking of alcohol is the proximate cause of an
injury,
rather
than
the
manufacture
or
sale
of
those
intoxicating beverages to that person.” Bruner, 153 F. Supp.
2d at 1361; accord Reed v. Black Caesar’s Forge Gourmet Rest.,
Inc., 165 So. 2d 787, 788 (Fla. 3d DCA 1964).
1
Brown Forman involved the death of a college freshman
after she consumed a large quantity of tequila in a short
period of time, presumably without recognizing the risks of
such behavior. The court engaged in a thoughtful discussion of
the policy issues and moral implications involved but
nonetheless found that the manufacturer of the tequila owed no
legal duty to the student. 893 S.W.2d at 646-58.
-8-
Section 768.125, Florida Statutes, absolves purveyors of
alcohol from liability, with exceptions for sales to minors
and alcoholics, based upon the common law theory that the sale
of the beverage is not the proximate cause of any harm related
to its consumption. Cook argues that § 768.125 does not apply
because
it
“does
not
address
the
liability
of
the
manufacturers of alcoholic products” and “was not intended to
provide immunity to a manufacturer of an unlawful alcoholic
drink.”2 (Doc. # 50 at 7).
Section 768.125 states that “a person who sells or
furnishes alcoholic beverages to a person of lawful drinking
age shall not thereby become liable for injury or damage
caused by or resulting from the intoxication of such person.”
Nothing in that language explicitly excludes manufacturers of
alcoholic beverages, unlawful or otherwise. But in any event,
the
applicability
of
§
768.125
is
strictly
an
academic
question. The Florida Supreme Court has explained that §
768.125 “effectively codified the original common law rule
absolving vendors from liability” for the sale of alcohol.
Ellis, 586 So. 2d at 1046.
Cook rightly directs this Court to “interpret Florida law
as it anticipates the Florida Supreme Court would.” (Doc. # 50
2
Cook’s allegations as to the “unlawfulness” of Sparks
are discussed below.
-9-
at 9). Ellis provides this Court with a roadmap to follow. The
Florida Supreme Court explained that it modified the common
law rule in its 1963 decision in Davis v. Shiappacossee, 155
So. 2d 365 (Fla. 1963). This launched a judicial trend
extending liability to vendors of alcoholic beverages. In
response, the Florida Legislature enacted § 768.125 in 1980,
effectively reviving and codifying the original common law
rule absolving vendors from liability. Ellis, 586 So. 2d at
1045-46.
Whether this Court applies § 768.125 or the common law,
the result is the same: the proximate cause of an alcoholrelated injury is the consumption of the intoxicating beverage
not the sale of the beverage.3 Id. at 1044. Thus, Cook’s
design defect claim fails and Count I must be dismissed.
B.
Failure to Warn
Cook asserts that “MillerCoors knew or should have known
of the special risks posed to youthful drinkers of alcoholic
energy drinks like Sparks, especially in light of the emerging
scientific knowledge of those risks.” (Doc. # 43 at ¶ 22).
“Despite actual or constructive knowledge of the risks posed
3
Once again, Cook appears to misconstrue Ellis, taking
out of context a quote from the Florida Supreme Court’s
historical discussion. Cook argues that § 768.125 (and, by
extension, Ellis) abrogated the common law, and that Davis is
still good law “in situations not governed by section
768.125.” (Doc. # 50 at 8). Neither assertion is accurate.
-10-
by Sparks, MillerCoors failed to warn of those risks and
actively minimized those risks through its advertising of
Sparks.” (Id. at ¶ 22).
A manufacturer’s duty to warn arises when there is a need
to inform consumers of dangers of which they are unaware.
Robinson, 2000 WL 35432556, at *2.
Generally, however, a manufacturer does not have a
duty to warn consumers of dangers which are obvious
or commonly known. . . . Because the dangers
associated with alcohol consumption are very well
known, courts have usually found that alcohol
manufacturers and retailers do not have a duty to
warn consumers about the risks posed by the
excessive use, or prolonged use of alcohol because
those risks are common knowledge.
Id.
“The
knowledge
standard
common
to
for
the
common
knowledge
community
that
is
is
the
a
overall
basis
for
determining a duty to warn, not what individual users may or
may not know.” Brown Forman, 893 S.W. 2d at 646-47.
Cook asserts that scientific evidence supports her theory
that the dangers of Sparks are not well-known. (Doc. # 50 at
5). As explained above, however, the Court finds that those
dangers manifest themselves when the product is consumed in
excess, and there is no duty to warn in that circumstance:
Alcoholic beverages are dangerous products. Many
human tragedies can be traced to an individual’s
use of alcohol. Nevertheless, this country has made
a political decision to allow alcoholic beverages
to be sold in the marketplace. . . . While alcohol
is accepted as a dangerous product, . . .
manufacturers of alcoholic beverages are not
-11-
required to warn about the dangers of its product
when “consumed in excessive quantity.”
Brown
Forman,
893
S.W.
2d
at
646.
The
Court
remains
unconvinced that the alleged “special risks” of Sparks alter
this analysis.
Furthermore,
consumption
of
“[a]lthough
alcoholic
persons
beverages
engaging
may
not
be
in
the
able
to
ascertain precisely when the concentration of alcohol in their
blood, breath or urine reaches the proscribed level, they
should in the exercise of reasonable intelligence, understand
what type of conduct places them in jeopardy of violating the
[law].” MaGuire v. Pabst Brewing Co., 387 N.W.2d 565, 570
(Iowa 1986). “[T]he degree of intoxication to be expected from
any particular brand of beer does not require a duty to warn,
or give rise to a fact question.” Malek v. Miller Brewing Co.,
749 S.W. 2d 521, 524 (Tex. App. 1988). Accordingly, the Court
finds that MillerCoors owed no duty to warn against the known
risks of consuming alcohol, even to excess.
Cook alleges in her Amended Complaint that MillerCoors
“lacked lawful authority” to market Sparks. (Doc. # 43 at ¶
9).
“Under
the
Federal
Food,
Drug,
and
Cosmetic
Act,
introduction of an additive like caffeine or guarana into an
alcoholic beverage is deemed ‘unsafe’ and unlawful unless (a)
its particular use is approved by the FDA, (b) the additive
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has received a ‘prior sanction,’ or (c) the additive is
‘generally recognized as safe’ by the agency.” (Id. at ¶ 8).
Cook argues that none of those prerequisites was satisfied as
to
Sparks,
therefore
Sparks
is
unlawful
because
it
is
“adulterated.” (Doc. # 50 at 2).
MillerCoors challenges Cook’s assertion that Sparks was
“unlawful,” but in any event Cook’s allegations regarding FDA
action cannot buttress her claims; no private right of action
exists under the Food, Drug and Cosmetic Act (FDCA). Where
“the substance of [a plaintiff’s] claims seek to assert a
private
right
of
action
under
the
FDCA,
they
must
be
dismissed.” Loreto v. Procter & Gamble, 737 F. Supp. 2d 909,
921 (citation omitted). “[I]f a defendant’s conduct would not
expose it to liability but for the FDCA then the plaintiff is
effectively suing for a violation of the FDCA (no matter how
the plaintiff labels the claim).” McGraw v. Johnson & Johnson,
226 W. Va. 677, 687 (W. Va. 2010) (internal quotation and
citation omitted). Thus, Cook’s allegations regarding the FDCA
are of no moment.
After
MillerCoors
filed
its
Motion
to
Dismiss,
the
Southern District of California found, under very different
circumstances, that the manufacturer of an alcoholic energy
drink had a duty to warn as to its health effects. Cuevas v.
United Brands Co., Inc., 2012 WL 760403 (S.D. Cal. Mar. 8,
-13-
2012). Although Cuevas is not binding on this Court, a brief
discussion is warranted.
The plaintiff brought suit against the manufacturer of
“Joose,” alleging that the defendant engaged in deceptive
business practices in connection with the marketing of Joose.
Joose
was
manufacturer
the
subject
that
of
caffeine
an
was
FDA
an
letter
unsafe
warning
food
the
additive;
therefore, the product was considered adulterated. Id. at *1.
The plaintiff alleged that nothing in the packaging,
labeling, advertising or sale of Joose “adequately disclosed
the amount of caffeine . . . or the risks associated with
caffeine as used” in Joose. Id. She alleged that she was
deceived into purchasing Joose and suffered economic injury
because it had less value than what she paid for it. Id. She
asserted claims for violation of various California unfair
competition and consumer protection laws, as well as breach of
express and implied warranties. Id. at *2.
Cuevas is distinguishable from the instant case in that
it was brought under various consumer protection statutes and
warranty theories and focused on the sale of Joose rather than
its consumption. Furthermore, the holding in Cuevas does not
alter this Court’s analysis. The Cuevas court noted that the
warnings required by the Alcoholic Beverage Labeling Act
(ABLA), 27 U.S.C. § 216, refer to “health risks associated
-14-
with consuming or abusing alcohol--e.g., statements regarding
the risk of intoxication, loss of motor ability, deterioration
of judgment, or heightened risk of certain forms of cancer or
other disease.” Id. at *2. The court found that any additional
warning on Joose “would not even have to reiterate or discuss
what adverse health effects alcoholic beverages have.”4 Id. at
*3. Those effects, as described in the familiar Government
Warning required by ABLA, are well-known.
Accepting the allegations in the Amended Complaint as
true, the Court finds that MillerCoors had no duty to warn Mr.
Prado
of
the
well-known
risks
of
consuming
alcohol
and
operating a motor vehicle. Therefore, the Court dismisses
Cook’s failure to warn claim.
IV.
Conclusion
The common law rule limiting the liability of purveyors
of alcohol dates back to time immemorial. Decades of case law
establish
that
alcoholic
beverages
are
not
unreasonably
dangerous and that Mr. Prado’s consumption of alcohol was the
proximate cause of Cook’s injuries. Furthermore, Florida law
4
The plaintiff in Cuevas sought a warning on containers
of Joose as well as in advertising. Cook’s claims relate only
to the marketing of Sparks. The court noted that the plaintiff
could not sustain her claim regarding marketing because she
did not allege what advertising she had seen. Id. at *4 n.3.
Cook similarly has alleged no specifics regarding any
marketing Mr. Prado may have seen with regard to Sparks.
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dictates that manufacturers have no duty to warn of the wellknown effects of alcohol. The Court is not persuaded to
deviate from this well-established precedent with regard to
Sparks. The Court therefore grants MillerCoors’s Motion to
Dismiss.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant MillerCoors LLC’s Motion to Dismiss Plaintiff’s
Amended Complaint (Doc. # 47) is
GRANTED. This case is
dismissed with prejudice. The Clerk is directed to enter
judgment in favor of MillerCoors and thereafter close this
case.
DONE and ORDERED in Chambers in Tampa, Florida, this 25th
day of May, 2012.
Copies:
All Counsel of Record
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