Starbucks incident---anaphylaxis due to soy latte being made instead with milk

[Former Member]

Has anyone on this board ever tried to get a restaurant to pay the medical bills if they made a mistake causing your child to have to use epi and call 911?  The story is that dd was in Starbucks.  Her milk allergy is not severe any more.  She eats milk cross contaminated items and baked milk with no problems.  She ordered a soy vanilla latte as she has done many times.   Dd started to drink it, drank about 1/3 to 1/2, and then felt her mouth tingling.  She noticed that the cup usually says "S" on it for soy and this time it did not.  She went up, asked the employee who had made the drink if she was sure she had used soy.  The employee was irritated and said she could tell by looking at the drink that it had soy milk, not real milk.  Dd and her friend then left.  As soon as they walked out of Starbucks, dd then had noticed a change in her voice, that it sounded deeper, and her friend said she was not walking straight.  She used epi, called 911. Paramedics came and by the time she got to the ER she was fine.  After we were released from the ER, we went back to Starbucks and spoke to the manager.  Dd is also allergic to peanuts.  She has never had a milk reaction requiring epi, and we really needed to know was it peanut cross contamination or is her milk allergy suddenly more severe.  The manager said there is no way that an employee can tell by looking if the drink is made with soy or regular milk.  Since the cup did not have the letter "S" on it, it must have been made with regular milk.  We checked everything else, no apparent peanut cross contamination.  She said she would talk to the employee.  This was five weeks ago.  We don`t know if the employee is still working there or not.

So far I have almost $1000 in bills for the ER visit, new epipen, and follow up allergist visit.  Insurance deductible is $2000.  Ambulance bill has not arrived yet, but that should put us over $2000. 

I have contacted Starbucks repeatedly asking them to reimburse me for my medical costs.  I finally got to someone who said she would call back with a fax number for me to submit the bills.  She never called back.  I have emailed and called several times and gotten nowhere.

Just wondering, has anyone on this board who had a restaurant make a mistake requiring epi ever tried to get the restaurant to pay the bills?  This was certainly not dd`s fault.  She is extremely cautious and reads the labels if ordering something new at Starbucks. 

[SilverLining]

I haven't been in a Starbucks, but the last coffee shop I was in had a CYA notice at the cash and at the drive thru.  They do not take responsibility, but make it clear.

[Macabre]

Wow.  That's awful.  I assume you've been talking with someone in Seattle about this?  If you haven't kicked it up the chain that far, I would--I would only talk with Corporate at this point. 

[jschwab]

I don't have any advice about getting reimbursed but I am so sorry this happened. And you can't tell. Before I had an ana reaction to milk (just was experiencing intense gastro pain that I thought was lactose intolerance) I used to order coffee with soy milk at Starbucks. Not only can you not see it or smell it that it is soy and not dairy, but it tastes exactly the same. I'm not surprised she could not tell the difference and it makes it really up to the employees to be vigilant. I would always ask a few times whenever I went "Is this really soy? Are you sure?". I hope you get it resolved.

[booandbrimom]

Sadly, the law on this more often favors the manufacturer or service provider. Past lawsuits have failed because consumers knew they were taking a risk. In order to get damages, you have to prove negligence, not just a mistake.

Good resource: http://www.wilmerhale.com/files/Publication/d19594c1-f7de-4d49-8683-0096824320db/Presentation/PublicationAttachment/a691fc8e-2854-4f6e-a2aa-06ba1d5b93e3/SC%20roses.indd.pdf

[hedgehog]

The law may be on Starbucks' side, but any sicially responsible company would want to do right.  And Starbucka makes a big show of being socially  responsible.  I don't know whether it real or for show, but that might be the way to approach it, rather than from the legal responsibility side of it.

[CMdeux]

I agree with Boo and Hedgie here. 

ANY time that you order anything at a food-service business, you're pretty much consuming at your own risk-- you KNOW that the person behind the counter knows less than you do about: a) cross contamination and b) (probably) the consequences of an error.

Yes, you can (as a consumer) do extensive things to make your needs clear... but... ultimately, you are assuming that the other party understands you.  Not everyone can/does.

I'm really glad that this has a happy ending-- not all of these stories do.

The socially conscious thing to do, of course, is for the company to offer to pick up at least part of the tab for the medical care made necessary via their error-- but bear in mind that most restaurants won't do that even in much clearer cases of food-borne ILLNESS.  That is arguably a risk that consumers don't even know that they are taking, whereas this is (as Boo noted) seen as a "foreseeable" risk if you have food allergies.

 

I realize that probably isn't what you're hoping to hear; understand that I'm VERY sorry that this happened to your DD and in no way think that this was right, but that I think that there probably isn't a lot of legal precedent in your favor here. 

[twinturbo]

What was the perceived risk if she accidentally drank non-high heat treated cow's milk prior to this reaction? Hypothetically speaking, of course.

I'm not a lawyer, I'm not even close to one but what pops up first in my mind is the concept of innocent misrepresentation.

Spoiler (click to show/hide)

Innocent misrepresentation is one of the three recognized varieties of misrepresentations in contract law. Essentially, it is a misrepresentation made by someone who had reasonable grounds for believing that his false statement was true. So in the above example, if the seller didn't know the stereo was actually old, he would only be liable for an innocent misrepresentation. In the real world, however, it is often the case that because the other two varieties of misrepresentation (negligent and fraudulent) are much more difficult to prove (because of the complexity of proving intent), often this is the only course of action left available.

What Constitutes Innocent Misrepresentation?
There are five elements that must be satisfied to prove innocent misrepresentation:

*Someone must makes a false representation (that must be false at the time of the transaction, AND remain false. If it turns out to be true later on, there is no case.)
*The misrepresentation is "material to the transaction," which means it must be about an important element of the transaction at hand. If you are selling a car and say that it has 15,000 miles on it when it actually has 15,124 miles, this would not be a material mistake.
*The other party must substantially rely on the lie. This means the other party not only must go through with the transaction, they must do so only because of the misrepresentation. If the buyer, for instance, would have bought your item regardless of what you said about it, this does not count. They must substantially rely on the falsehood.
*The lie must also proximately cause the other party to suffer damages. In other words, the buyer must be actually harmed by the final transaction in order to sue.

In addition to those four elements, which are necessary for negligent and fraudulent misrepresentation as well, there is a fifth element that is unique to innocent misrepresentation.

*The loss of the one party must benefit the other. This is an odd and very vague requirement, but one that the courts have held up nonetheless. Essentially, if the misrepresentation made does not benefit the person who made it, (or hurts BOTH parties to the contract), then the courts will not consider it a case of misrepresentation. Just exactly how the court will measure if a party has "benefitted" from a lie remains indistinct, and various states interpret this rule differently.

For clarification's sake I am not recommending anyone with an IgE-mediated life-threatening allergy take a risk beyond their known, personally derived risk-benefit calculus. This is simply how, if I were to hypothetically argue for reimbursement for medical damage, I would take on that argument.


Now for the other side of the coin. For the sake of argument let's say negligence, fraud and social responsibility are off the table in order to take a look at a lower standard of innocent misrepresentation which doesn't include proof of intent as per the cited text. Is it correct? Dunno, not a lawyer but working through the logic nonetheless.

Could the conditions be satisfied? Possibly. Can you prove it? Probably not. How would you demonstrate the barista did not make a soy latte? How would you demonstrate the latte was not soy based but merely contaminated? How would you demonstrate that the latte represented as soy was not taken by another person, meaning a mistake made between customers and not service? How would you demonstrate it was milk that induced the reaction and not another allergen? And that's not even delving into communicating known risk to server.

So that's both sides from my limited perspective. In a way I see OP's situation as unique because the customer wasn't seeking a guarantee of "free of" but to consume a product that was materially correct/true with the understanding that likely contamination was always present, medically tolerated historically and therefore acceptable. Although FALCPA wouldn't cover this instance that somewhat correlates to the initiation of a product recall. Shared lines are not revealed, contamination is expected, but undisclosed ingredients, gross contamination or mistaken production/labeling of top 8 have all been catalysts for recall.


I want to point out one more item re: OP's situation and risk. According to conventional wisdom DD was following exactly what is promoted top-down from medical to the FA community. Only avoid what you must, live a normal life, take your chef cards and use some basic precautions, rescue meds in case of accidental ingestion, follow EAP. In that context how exactly is OP's DD not going by conventional medical wisdom? Just because it didn't work out in one instance doesn't mean she wasn't following status quo.

Now that has zilch to do with Starbucks as a corporation but remember they are not only a food service but also have a line of manufactured items. At what point should they have a different standard for in store food service than their boxed manufactured products? I would argue where the production is not dedicated and supervised but individualized real time per instance and highly varied as per the in store experience is. But still, why do we listen to allergists when it comes to food manufacturing anyhow? How much should their recommendations on how to examine risk factor in? Do their quality of life studies accurately reflect reality?

[Former Member]

Lots of information here.  I think there is a key difference between a cross contamination reaction versus a reaction due to an employee making a mistake and then lying about it.  I have seen disclaimers in various restaurants regarding cross contamination.  I have no problem with that and would agree that by eating there one is accepting cross contamination risk.  However, this is not the situation here.  I don`t think Starbucks has any sign up, but if they do it is not about risk of employees making a mistake.  Dd has eaten a bit of unbaked milk here and there (on the allergist`s advice) with mild non life-threatening symptoms.  Her cap rast to milk is normal, less than 0.35.  She has a positive skin test, but as we know it is common for the skin test to remain positive after outgrowing.  She eats pizza with no problems.  We believed that her milk allergy is no longer life threatening.  By comparison, if she steps foot in a restaurant and sees even one peanut item on the menu that is made in the restaurant, she leaves.  She is very careful.  Many on this board, if they had consumed the amount dd mistakenly consumed at Starbucks would have had a much more severe reaction than dd did.  Aren`t these CYA notices usually about cross contamination?  The issue of using regular milk instead of soy and lying about it is a totally different, more serious issue.  IMO, it places much more responsibility on the restaurant.

Interesting comment about their claim of being "socially conscious".  I actually emailed the CEO, quoting something he said on their website about Starbucks being a company "with a conscience".  I then outlined in the email what happened, and related it to his statement about how Starbucks being a company with a conscience.  He did not reply.  I suppose it is possible that the email address I used was not correct.  However, the email was not returned to me as undeliverable.  I found his email address by googling him.  Obviously the Starbucks website won`t have the email address of the CEO or he will be bombarded with emails.

TT, some of what you said can be addressed.  We know it was not a cross contaminated soy drink, because dd eats cross contaminated items all the time and has no symptoms.  She has eaten a cracker with cream cheese and had only abdominal pain.  She has eaten a salad with a few shreds of cheese and only had sneezing.  (This is all on the allergist`s advice, as he wanted to know what she could tolerate as she appears to be outgrowing.)  We know it was not that the barista did not hear dd, because dd went back up and asked the barista was she sure it was soy.  Barista said yes and said she could tell by looking at the drink.  We know that dd did not get another customer`s drink because they call you by name.  Dd has a fairly unusual name.  Also, if that were the issue, it still does not explain what the barista said when dd went back up to her and the barista said she could tell by looking that it is soy.  We know that it was not a reaction to another allergen because dd`s only other allergen is peanuts and we went back and checked on everything in the drink to rule out peanut cross contamination.  Plus the manager confirmed to us that the employee had made a mistake.  That is a very interesting analogy about FALCPA.  It is true:  if an item was sold as soy and actually had cow`s milk instead of soy, it would be recalled.

Jschwab, you are exactly right that you cannot tell the difference between milk and soy in these frothy syrupy coffee drinks.  I have gone and ordered a soy latte and I really cannot tell if it is milk or soy.  I always worried that some day Starbucks would make a mistake but based on past history, we believed if that happened dd would only have a runny nose or sneezing.  That is dd`s history.  She is 18 and has almost outgrown her milk allergy, or so we thought.

Macabre, I really don`t know if I am talking to someone in Corporate or not.  I have called the 800 phone number on their website.  I have been unable to get any other phone number for them.  I did find a 206 area code phone number on their website, but when I called I just got the same voice mail as I did when calling the 800 number.  Do you have any idea how I can reach the Corporate Office?  I thought the email would work, since I emailed the CEO, but apparently not.

Silver Lining, when you saw the disclaimer was it about cross contamination or was it about the employee making a mistake and the customer receiving a drink other than what was ordered?

[twinturbo]

But can you prove what you know? And I don't mean to me here. Those are probably 'show me' proofs you might be asked for. I'll leave that between you and Starbucks.

Glad your DD made it through her reaction (good follow through on EAP). Also glad you are allowing me to work through the issue on both sides.

[SilverLining]

Silver Lining, when you saw the disclaimer was it about cross contamination or was it about the employee making a mistake and the customer receiving a drink other than what was ordered?

I don't remember the wording, but, I recall my husband and I discussing that it was worded in such a way that it would cover both.  We were specifically discussing it because someone he knew had died from an anaphylactic reaction at another of that coffee shop.  (Different situation then your daughter.  The doughnut that she had always eaten safely, suddenly had walnut in it.  She hadn't asked because it had always been safe.)

However, when DH & I were discussing, we didn't know the details.

As for sueing for medical expenses.  I'm no lawyer, and have no idea whether there are grounds.  I know Americans sue successfully more often then Canadians.  But, I think of Stella Liebeck and. I know American companies get out of paying for medical expenses they should have to pay.

[Macabre]

Starbucks doesn't have that general disclaimer. Products have warnings, but there is no general disclaimer.

[twinturbo]

Lieback's damages were reduced because she was found partly at fault. She was also able to produce proof that the circumstances that led to her 3rd degree burns were known to McDonalds as hazardous and that others had suffered similar burns due to those same conditions prior to her incident. The only commonality there is that it's food service. But it does highlight one unfair burden we as consumers place on a corporate that we would not hold a smaller place accountable for.

[rebekahc]

Jschwab, you are exactly right that you cannot tell the difference between milk and soy in these frothy syrupy coffee drinks.  I have gone and ordered a soy latte and I really cannot tell if it is milk or soy.  I always worried that some day Starbucks would make a mistake but based on past history, we believed if that happened dd would only have a runny nose or sneezing.  That is dd`s history.  She is 18 and has almost outgrown her milk allergy, or so we thought.

So you knew it was a risk and that they were likely to make a mistake and assumed the risk anyway.  If your DD chose to assume that risk, then it's her responsibility - not Starbucks.  Did she inform them of her dairy allergy at the time she ordered?  If not, then they were unaware of the risk (unlike she who was fully aware).

[yelloww]

I think that where the manager fessed up about the mistake already, you do have some recourse. But perhaps not full recourse if she didn't explain about her allergy when she was asking the staff about soy vs milk.