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January 27, 2014
BROOKLYN, N.Y.New York attorney Ilya Novofastovsky says the health of a 33-year-old man who drank Red Bull before he died is one of the factors distinguishing his lawsuit from similar cases that have been filed against energy drink companies.
Cory Terry, a construction worker and father of a 13-year-old boy, was "as healthy as healthy can be," Novofastovsky of the Novo Law Firm, P.C. said in a phone interview Jan. 20. "There is no evidence of preexisting health issues at all."
Red Bull has requested Terry's medical records and is reviewing evidence in the case, Novofastovsky said. The company has not yet responded to the complaint or filed a motion to dismiss it, he said.
Novofastovsky also said Red Bull requested a meeting with his law firm, although a meeting has not been scheduled.
We did seem to strike a nerve and did seem to uncover a lot," he said. "We did put together this fact pattern that revealed what these stimulants can do in a way that has not been done before."
The energy drink company declined to comment on the lawsuit, although a spokesperson noted that the product is sold around the world because health authorities have concluded it is safe to drink.
The 2013 lawsuit, filed in Kings County Supreme Court against Red Bull North America, Inc. by Terry's grandmother Patricia Ann Terry, seeks a whopping $85 million.
According to Novofastovsky, Terry played three games of basketball in a recreational league for about 45 minutes, then drank a Red Bull during a break.
"He was walking on the court when he collapsed," the lawyer said. According to the complaint, Terry fell into cardiac arrest and was later pronounced dead at a medical center in Brooklyn.
"My claim is pretty clear and it heartens me that lots of people seem to understand it intuitively," Novofastovsky said. "No one put together the causal chain the way that we have in terms of something that is specifically focused on the heart. I think people have blamed the energy drink but I dont think theyve had as much evidence as we do."
In similar lawsuits filed against Monster Beverage Corp., the company is looking into whether other factors contributed to the fatalities.
For instance, Monster has blamed the death of a 14-year-old on her preexisting heart condition. Monster also denies liability in a separate wrongful death lawsuit that was filed on behalf of a 19-year-old who collapsed while engaged in sexual activity with his girlfriend and fell into cardiac arrest. Monster has cited the absence of a coroner's report linking its energy drink to the death and noted the teen had consumed the product for years without any problem.
According to an Oct. 28 article in the New York Daily News, which broke the news about Terry's lawsuit, the cause of death was a heart condition known as idiopathic dilated cardiomyopathy. The Mayo Clinic explains several conditions can cause dilated cardiomyopathy, including birth defects, drugs and alcohol abuse, genetics, infections, cancer medications and exposures to metals and toxic compounds.
In addition to reviewing Terry's medical records and history, Red Bull is likely to question whether and how a potentially strenuous activity like basketball may have factored into his death.
Novofastovsky countered that the company specifically markets its energy drink to stimulate performance while playing sports.
Basically this kind of use is right in line in what Red Bull is interested in doing," he said. "They specifically market sports. More specifically, they market to basketball."
The lawsuit cited a number of deaths linked to Red Bull in Canada and Europe as well as research literature that has associated caffeine-laden energy drinks with medical reports.
Reports submitted to the U.S. Food and Drug Administration potentially link Red Bull to 21 adverse events from the years Jan. 1, 2004 through Oct. 24, 2012. The reports received by FDA's Center for Food Safety and Applied Nutrition Adverse Event Reporting System cite such symptoms as anxiety, blindness, chest pain, fatigue and vomiting. A few events cite "life-threatening" while none list death.
FDA has emphasized that such reports do not reflect its conclusion that the products caused the medical problems. The agency reviews the reports to determine whether there is a public health threat that would warrant regulatory action.
From 2000 through June 30, 2013, Health Canada's Adverse Reaction Online Database includes 26 adverse reactions involving "Red Bull Energy Drink".
Some reports cite death including the case of a 15-year-old boy who was suspected of drinking both Red Bull and Monster. In a separate adverse event first reported in 2008, a 170-pound, 15-year-old boy who drank Red Bull suffered "arrhythmia", "blood caffeine", "circulatory collapse" and "sudden cardiac death".
The Canadian regulator cautions consumers that its database "does not reflect any Health Canada assessment of association between the health product and the reaction(s)."
Some lawyers who are not involved in the Terry litigation have claimed Novofastovsky's lawsuit is a sensational attempt to grab headlines by requesting $85 million in violation of a New York rule that forbids a complaint from stating the amount of requested damages.
Novofastovsky said the rule doesn't apply to claims that are in the lawsuit such as breach of warranty.
I think we are allowed to chose our tactics and we did so in the best interest of our clients here. I think the people who were jumping up and down over the amount are people who confused this case with a straight personal injury case," he said. Second of all if this really bothers Red Bull, they could have just asked to amend the pleadings and they havent."
Founded by Austrian businessman Dietrich Mateschitz, Red Bull began with sales in Austria in 1987. Since then, people have consumed more than 35 billion cans of the energy drink, according to Red Bull's website.
In 2012 alone, sales of Red Bull (5.2 billion cans) grew nearly 13% over the prior year. And as of the end of 2012, the company known for sponsoring extreme sports employed nearly 9,000 employees in 165 countries.
Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition
Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.
Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.
Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).
Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.
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