Lemley et al v. Red Bull North America, Inc.

Filing 26

ORDER granting 14 Motion to Dismiss. Plaintiff's claims are DISMISSED WITHOUT PREJUDICE, except for breach of implied warranties, which is DISMISSED WITH PREJUDICE. All pending motions in this case are DISMISSED AS MOOT. The Clerk of Court is DIRECTED to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 12/9/2016. (csr)

Sn i^t ?itttteb States; Btsitttct Court
for
^ontl^em Biotrict of 4leorgta
^aiianna$ Siibioton
ANN EDENFIELD LEMLEY,
Administrator of

as

the Estate

of WILLIAM JACOB WADE,

Deceased; and ANN EDENFIELD

LEMLEY,

Individually,

No.

4:16-CV-080

Plaintiffs,
V.

RED BULL NORTH AMERICA,

INC.,

Defendant.

ORDER

Before the Court in this products liability and wrongful
death case

Bull,

is Defendant Red Bull North America,

Inc.")

Motion to Dismiss,

fully briefed,

dkt.

decision.

the

For

particular,
energy drink
the

3 72A

ev. 8/82)

the
the

nos.

14-1,

reasons

complaint
decedent

dkt.

20,

no.

22,

stated below,

fails

(^'Red

The Motion is

and is now ripe
it

is

GRANTED.

for
In

to allege how much Red Bull

consumed,

circumstances of his death.

14.

Inc.'s

when he

consumed it,

or

FACTUAL BACKGROUND

The Court assumes the truth of the facts alleged in the

complaint.

Fed.

R.

Civ.

Edenfield Lemley,

of

against Red Bull,

Inc.,

2016.

P.

12(b)(6).

Chatham County,

Plaintiff^

Georgia,

brought

a non-Georgia citizen,

Dkt. Nos. 1, 1-1.

Ann
suit

on March 28,

She alleged strict liability design

defect and failure to warn; negligent design, manufacture, and

sale;

negligent

failure

to

warn;

warranties; and wrongful death.

fraud;

breach of

See generally id.

She sought

$60,000,000 in compensatory and punitive damages.

Lemley'3
arrhythmia,

son,

William

''aortic

Jacob

dissection,

Wade,

8,

2014."

Id.

doctors,

nil

32,

hospitals,

reasonably

Id.

He

nurses,

required

services."

47.

and

1| 95.

had

.

necessary

complaint

allegations

other

expenses

36.

and

for

other

supplies

At some earlier point,

further

and

pharmaceuticals,

medically

cardiac

[died] on August

"incur [red]

Id. 1I1I 1/ 24,

no

suffered

.

some quantity of Red Bull.
makes

Id. at 27.

hypertension,

cardiovascular problems, and ultimately .

implied

and

he had drunk
Crucially, the

regarding

Wade's

Red

Bull consumption or his death.
Red

Bull

is

an

energy

drink

designed,

manufactured,

tested, marketed, and distributed by Red Bull, Inc.
6,

24.

It

contains

caffeine and taurine.

Id.

Id. 1I1I 3,
H 14.

Red

^ Acting individually and as administrator of the estate of William Jacob
Wade.

The Court will refer to Ms. Lemley in the singular.

Bull,

Inc.

consumers

markets
in

Red

that

Bull

it

as

Ogives

''provid [ing]

[them]

increased physical and/or mental performance."

to

resulting

wings'

benefits

in

Id. H 25.

Red

Bull and similar energy drinks have been the subject of media,

legal, and medical scrutiny for their supposed role in heart
problems—some fatal.

Id.

7-23, 51.

LEGAL

STANDARD

A complaint must be ^'a short and plain statement of the
claim showing that the pleader is entitled to relief."
R.

Civ.

P.

8(a) (2) .

conclusipns,
cause

555

of

action."

theory."
678,

It

Bell Atl.

has

[the court]

necessary

684

to

harmed-me

beyond

v.

Twotnbly,

678.

and

550 U.S.

544,

from

a

recovery

under

some

for Choice,

viable
Inc.,

allegations must be enough to raise a
the

speculative

Iqbal,

more

than

legal

253 F.3d

2001).

556
an

accusation.").

U.S.

level
662,

.

.

678

unadorned,

They must

.

."

(2009)

Id. ;

right

to

see also

(holding Rule

8

the-defendant-unlawfully-

send

threshold from possibility to plausibility.
at

^^labels

can identify each of the material elements

(11th Cir.

Ashcroft V.
"demands

Corp.

Roe v. Aware Woman Ctr.

above

go

^'contain inferential allegations

to

sustain

^'Factual
relief

must

and a formulaic recitation of the elements of a

(2007) .

which

It

Fed.

a

case

across

Iqbal,

the

556 U.S.

Although a

court must assume

the

truthfulness

of

the

complaint's factual allegations. It is ''not bound to accept as

true

a

legal

conclusion

couched

as

a

factual

allegation."

Papasan y. Allain, 478 U.S. 265, 286 (1986).

Determining whether a

complaint states a plausible

claim for relief will

.

.

.

be a

context-specific

task that requires the . . . court to draw on its
judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the
complaint has alleged—but it has not "show[h]"—"that
the pleader is entitled to relief."

Iqbal, 556 U.S. at 679 (internal citation omitted).
DISCUSSION

The present motion to dismiss will be granted.

Lemley' s

causes

causation.
from

of

action

have

as

an

Most of

element

proximate

The complaint fails to advance proximate causation

mere

possibility

to

plausibility

because

it

does

not

allege how much Red Bull Wade consumed, or when he did so in
relation to his death.
See

Roe,

253

inferential
each

of

recovery")

F.3d

at

allegations

the

material

(emphasis

This shortcoming triggers dismissal.
684

(holding

from which
elements

added).

complaint

[the

court]

necessary

Nor are

must

the

to

"contain

can identify
sustain

complaint's

a

other

allegations adequate.
All of Lemley's

implied warranties,

claims,

with the exception of breach of

are dismissed WITHOUT

PREJUDICE,

because

more
Bank

carefully

v.

Pitt,

drafted

928

F.2d

complaint might

1108,

1112

state

(11th

Cir.

a

claim."

1991)

(per

curiam), overruled in part, Wagner v. Daewoo Heavy Indus. Am.

Corp. ,

314

F.3d 541

(11th Cir.

2002)

(en banc)

(unanimous

opinion).
I.

LESLEY'S DESIGN DEFECT CLAIM IS DISMISSED.

Lemley's

strict

liability design defect

claim must

be

dismissed because the complaint fails to allege enough facts
for

the

Court

possible,

to

find

it

plausible,

that "[Red Bull's]

caused [Lemley's] injury."^

as

opposed

to

merely

defective condition proximately

Henderson v. Sun Pharms. Indus.,

Ltd. , 809 F. Supp. 2d 1373, 1378

(N.D. Ga. 2011)

(citing Chi.

^ The Court is not convinced, however, that the complaint fails to allege a

product defect.
Red Bull, Inc. characterizes as insufficient the
complaint's allegation that Red Bull contains a dangerous combination of
"exorbitant

levels

dkt.

H 31.

no.

1

of

caffeine,

Red Bull,

legal, as is taurine.

taurine,

Inc.

and

other

harmful

chemicals,"

responds that caffeine is safe sind

Dkt. No. 14-1 at 9.

It was enough for the complaint to allege—as it did, with citations
medical
literature—"the
toxicity
of
the
[taurine]/caffeine

to

combination."

McClain

(11th Cir. 2005)

v.

Metabolife

Int'l,

(emphasis added); Dkt. No.

1233,

1237

1 til 7-23, 31, 51, 98.

Inc.,

401

F.3d

Red

Bull, Inc.'s arguments to the contrary are unpersuasive.
It cites
McClain to argue that studies need to be definitive to establish general
causation, dkt. no. 22 at 8, but McClain analyzed scientific expert
testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993) .
That involves a far closer inquiry than does failure to
state

a

claim.

Red

Bull,

Inc.'s

other

citations

are

to

cases

where

complaints do not allege what about a product makes i t dangerous.
Moore
V.
MyIan,
Inc.,
840 F.
Supp.
2d 1337,
1344-45
(N.D.
Ga.
2012)
(considering general allegations that defendants' FDA-approved products
"were unreasonably dangerous"); Goodson v. Bos. Sci. Corp., No. 1:11-CV3023, 2011 WL 6840593, at *4 (N.D. Ga. Dec. 29, 2011)
(considering
general allegations that defendant's products "were not reasonably safe
for

their intended use and were defective as a

matter of law"

(citation

omitted)); Henderson, 809 F. Supp. 2d at 1378-79 (considering allegations
of defendant's manufacturing defects that were unrelated to the case).
Here,
by contrast,
the complaint zeroed in on Red Bull's supposed
"dangerous levels of caffeine,

H 98.

taurine,

This pleading was adequate.

and other chemicals."

Dkt. No.

1

Hardware

(Ga.

Ct.

& Fixture

App.

Co,

v.

1999)).

Lettemnan,

'MGJeneral,

510

S.E.2d

875;

877-78

conclusory allegations,

devoid of any specific, factual content to support the legal
conclusions are plainly insufficient . . .

Id.

at 1379.

The complaint contains a mere conclusory allegation that Red
Bull

caused

Wade's

circumstances
exclude all

death.

surrounding

causes

two.

Mr.

No.

Wade's

other than RED

devoid of any specific,
Bull consumption,

Dkt.

1

SI

39

injuries

BULL'S

(^^[T]he

and

death

failure.").

It

is

factual content regarding Wade's Red

his death,

or the relationship between the

Lemley's design defect claim must be dismissed.
There is nothing to the contrary in Edwards v. Wisconsin

Pharmacal Co.,

987 F. Supp.

The complaint

in that

2d 1340, 1344-45

case gave

the

specific date that the

plaintiff used the defendant's product,
after

[use]

.

.

.

and

as

a

result

(N.D. Ga. 2013).

then alleged:

thereof,

experienced third degree burns to his person."
8-9,

Edwards v.

Ga. Aug. 15, 2013) .

Wise.

No.

Plaintiff

Dkt.

No.

3:13-CV-143

1-1
(N.D.

This allowed the district court to infer

proximate causation in a
not.

Pharmacal Co.,

the

^^Soon

way that the current complaint does

It would have been one thing for the complaint here to

have alleged,

for instance,

that Wade died of a

shortly after consuming Red Bull.
alleges,

Lemley's

case

could

just

But,
as

heart attack

for all the complaint
readily

be

based

on

Wade's having drunk two cans of Red Bull when the drink was
first

introduced in 1987,

three decades later.

dkt.

no.

1 % 6,

then dying nearly

Edwards does not excuse the exceedingly

vague pleading here.
II.

LEMLEY'S FAILURE TO WARN CLAIM IS DISMISSED.

Lemley's strict liability failure to warn claim must be
dismissed for the same reason.

One of the elements of failure

to warn under Georgia law is that the defendant proximately
caused the plaintiff's
Transobturator

Sling

injuries.

Prods.

1348, 1365 (M.D. Ga. 2010)

Liab.

Litig.,

711

F.

ObTape

Supp.

2d

(citing Dietz v. Smithkline Beecham

Corp. ,

598 F.3d 812,

law).

The complaint here does not even adequately allege that

drinking

Red

Bull

815

In re Mentor Corp.

was

(11th Cir.

part

of

2010))

the

(applying Georgia

chain

of

events

that

ultimately toppled Wade; it thus cannot adequately allege that

the product's labeling was the first domino to fall.^

'

The

Court

rejects

Red

Bull,

Inc.'s

contention

that

this

claim

was

inadequately alleged because the complaint "contains no allegations that
Mr. Wade read the product label."
Dkt. No. 14-1 at 13.
True, Wade's
failure to read the label would "fatally undermine[] [Lemley's] claim that
the warning itself was inadequate," because i t would disprove that
language absent from the warning proximately caused Wade to drink Red
Bull.
*5

Girieco v. Tecumseh Prods. Co., No. 4:12-CV-195,

(S.D.

Ga.

Oct.

23,

2013);

see

also

Camden

Oil

2013 WL 5755436, at
Co.

v.

Jackson,

609

S.E.2d 356, 358 (Ga. Ct. App. 2004) .
But Lemley did not admit that Wade
never read the label.
The complaint is merely silent on this point.
This
silence does not foreclose Lemley's case.
See Sheckells v. AGV-USA Corp.,
987 F.2d 1532, 1536 (11th Cir. 1993) (reversing grant of summary judgment
to defendants because plaintiff "did not testify that he did not read the
warnings, only that he did not remember doing so."); In re Stand ^N Seal
Prods. Liab. Litig., No.

15,

2009)

(same,

1:07MD1804, 2009 WL 2145911, at *6

denying summary judgment).

to plead away defendants'

(N.D. Ga. July

Plaintiffs are not required

every possible defense.

III.

LEMLEY'S NEGLIGENCE CLAIMS ARE DISMISSED.

Likewise,

Lemley's

negligent

design,

manufacture,

and

sale claim, and her negligent failure to warn claim, are due
to

be

dismissed.

proven, can

''[B]efore

be

actionable,

any

negligence,

that negligence ^must

the proximate cause of the injuries sued upon.'"
Campbell,

--- S.E.2d

even

, No. A16A0755,

if

be

Edwards v.

2016 WL 6024275, at *4

(Ga. Ct. App. Oct. 14, 2016).
IV.

LEMLEY'S FRAUD CLAIM IS DISMISSED.

The same is true of Lemley's fraud claim.
LLC V.

Manton,

662 S.E.2d 880,

885

(Ga.

Duke Galish,

Ct. App.

2008)

('MA]n

essential element of a fraud claim is proximate cause.").

This claim must also be dismissed because the complaint

fails

to

meet

the

heightened

pleading

Federal Rule of Civil Procedure 9(b).

standard

imposed

by

The Rule requires the

complaint to state

(1) precisely what . . . omissions were made, and
(2) the time and place of each such statement and
the person responsible for . . . not making[] same,
and

(3)

the

content

of

such

statements

manner in which they misled the plaintiff,

and

the

and

(4)

what the defendants obtained as a consequence of the
fraud.

Ziemba v.

2001)
Inc. ,

Cascade Int'l,

(quoting Brooks
116 F.3d 1364,

in original).

v.

1371

Inc.,

Blue

256 F.3d 1194,

Cross

& Blue

(11th Cir. 1997))

1202

(11th Cir.

Shield of

Fla.,

(quotation omitted

The complaint here merely gives the Court some

reason to believe that Red Bull, Inc. profited by selling Wade
some

Red Bull.

Dkt.

No.

1

HH

74-83.

Therefore,

Lemley's

fraud claim must be dismissed.
V.

LEMLEY'S IMPLIED WARRANTIES CLAIM IS DISMISSED.

Lemley's claim for breach of implied warranties must also
be dismissed,

albeit for a different reason.

A Georgia claim

for breach of implied warranties requires plaintiff-defendant
privity.

In re Mentor Corp.,

711 F.

complaint alleges that Red Bull,

selling

RED

distribut[ed]

HH 86,

93.

BULL"

and

Supp.

Inc.

2d at 1365.

''was in the business of

"[sold],

deliver[ed]

the defective RED BULL to Mr. Wade."

However,

47,

51.

Red Bull,

purchaser privity" with Wade.
Dkt.

No.

22 at 3.

Inc.

No.

"did not

20.

1

Inc. sent
H 35; see

disavows "direct seller-

Dkt.

sell

It is,

No.

14-1 at 18; see also

then,

[Red Bull]

so lacked privity with him.
2d a t

Id.

No.

Lemley did not reply to this disavowal.

See generally Dkt.
Bull,

Inc.

and/or

Dkt.

it also alleges that Red Bull,

Wade's Red Bull into "the stream of commerce."
also id.

The

undisputed that Red

directly to

In re Mentor Corp.,

[Wade],"

and

711 F. Supp.

1366.

Thus,

Lemley's

will be dismissed.

drafted

for

breach

Furthermore,

claim with prejudice,
carefully

claim

the

of

implied

warranties

Court will dismiss

this

finding no reason to think that "a more

complaint

might

state

a

claim."

Bank

v.

Pitt,

928

F.2d

1108,

overruled in part,

1112

(11th

Wagner v ♦

314 F.3d 541 (11th Cir. 2002)
VT.

Cir.

1991)

(per

Daewoo Heavy Indus.

(en banc)

curiam) ,

Am.

Corp.,

(unanimous opinion).

LEMLEY'S WRONGFUL DEATH CLAIM IS DISMISSED.

With all of Lemley's direct claims requiring dismissal,

her wrongful death claim also fails.

''^Under Georgia law ... a

suit for wrongful death is derivative to the decedent's right
of

action.

A

survivor

cannot

recover

for

the

decedent's

wrongful death if the decedent could not have recovered in his
or her own right."
48,

50

(Ga.

2014)

Dion v. Y.S.G.

Enters.,

(quoting Mowell v.

704 (Ga. Ct. App. 2004))

Inc.,

Marks,

766 S.E.2d

603 S.E.2d 702,

(alterations in original).

The Court

has already held that it must dismiss the claims that Wade
could have brought.
VII.

Thus, this claim meets the same outcome.

LEMLEY'S CLAIM FOR PUNITIVE DAMAGES IS DISMISSED.

Also derivative to the other claims is Lemley's claim for

punitive damages.
754 S.E.

2d 640,

See, e.g., Stephen A. Wheat Tr. v. Sparks,
648

(Ga.

Ct. App.

2014) .

It must therefore

also be dismissed.
CONCLUSION

For

the

Dismiss,

dkt.

DISMISSED
warranties,

reasons

above.

no.

is

WITHOUT
which

14,

GRANTED.

PREJUDICE,
is

Red

except

DISMISSED WITH
10

Bull,

Inc.'s

Motion

to

Plaintiffs'

claims

for

of

implied

All

pending

breach

PREJUDICE.

are

motions

Court

in

is

this

case

DIRECTED

are

to

DISMISSED

enter

the

AS

MOOT.

appropriate

The

Clerk

judgment

dismissal.

SO ORDERED,

this 9th day of December,

2016.

L^A g5dbS!y WipOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

D72A

ev. 8/82)

11

of

of