Oy!

The doctor in the ER (major medical center) was floored that dd had an epipen on her.  She said to dd "what do you do---carry an epipen every time you go to a restaurant?"  Dd said she carries them everywhere in her purse.  I had the impression that the doctor had never seen a teen patient with anaphylaxis who had an epi on her.  We get a skewed view on this board as far as level of allergy awareness and precautions.  I think most teens with a history of food allergies or anaphylaxis don`t carry epis.

Good luck!  I agree, CM.  I'm so glad your daughter is OK and sorry that you have such high expenses from this.  Can't hurt to pursue it a bit further as you plan. 

Quote
If dd were a different kind of kid with a less aware parent, she would not have been carrying an epi.  Who knows what would have happened then.

I'd emphasize that with corporate.    Well, not those exact words, but-- you know; the notion that less precise and aggressive management on YOUR parts could quite easily have led to a fatal outcome, not just a family helping them to LEARN why they need to do better in handling allergen-info during ordering and service.

They should consider it a fairly cheap lesson.  Whether they will or not is another matter.

Thank you everyone, but especially Lakeswimmer.  All I had in mind was what Lakeswimmer is posting about.  It is helpful to hear viewpoints on what would happen in court, but I am not planning to sue, merely filing a claim.  I would compare this to recently I was rear-ended.  It was clearly the other party`s fault.  I was stopped at a stop sign, she was focused on her cell phone, and she hit me.  I filed a claim with her insurance company.  This is all that I am trying to do with Starbucks.  I am not interested in some huge lawsuit, but I believe that they should pay our medical bills which will be in the thousands after insurance.  Just the ambulance will be over $1000.  I have a receipt that says "soy", and no there are no signs at that Starbucks regarding allergies.  If dd were a different kind of kid with a less aware parent, she would not have been carrying an epi.  Who knows what would have happened then.  Maybe the reaction would have stopped, maybe not.  I do know that her BP was dropping during the reaction, because dd`s friend who was there said dd was not walking straight.  The employee was terminated due to the incident with dd.  The manager told us that. 

TT, your posts are very interesting.  I had dd email me exactly what happened a day or two after the incident.  I consider that to be a timeline. 

I nerd out on these things, apologies for the self indulgence! I know, I should work it out on debate.org or stick to using SCOTUSblog for recreational activities. Regardless I do think there are some deep underlying foundations that are important to all of us particularly if there is an increasing momentum for the first real allergic generation to chart a course into society which includes limiting your dining options only to what you must.

When I think of what happens to requests like this making headway into a Fortune 500 who makes big promises to stock holders and has an entire legal division I think about the one shot you get in making your case. You can't allergy mom this like you can FAPE. You don't want to be Lieback 2.0, aka McDonald's coffee grandma, in the court of public opinion where without solid context and facts you look idiotic and unreasonable. Therefore you have to show in the larger contextual sense that given your specific risk calculus that the individual has indeed shown the judgment and precaution and self-responsibility that reasonable person would have shown.

To illustrate.

Reductionist statement: A person walks in to Starbucks with a life-threatening dairy allergy (uncontextualized, remember) and has a reaction to dairy. Is surprised and wants medical bills paid. (hint: we don't want to be here)

Contextualized statement: A patron with years of experience negotiating with reasonable caution, expectation and communication went as far as she could to ensure she received product as she had before using the same protocols. Imply controls are lacking on company side that could reasonably assist said customer (color code, more care, etc.). Reality is this particular market segment is increasing, buck up Starbucks this is happening. To that end you would ideally want them to face inevitability that if they don't start making changes now that it will not go away. Better to come out the good guy proactively.

Contextualized statement using the basics of common law and reasonable as a backbone will hopefully send whomever reads it straight back to their 1L year getting hammered by their prof. It calls into question are Starbuck's practices given the reality of epidemic food allergies responding as a reasonable person would by increasing CYA rather than implementing common sense, practical and effective practices that would address the growing market that OP's DD represents? For $4-5 drinks? In one of the markets that they are strongest?

In general on an anecdotal basis I know Starbucks is hard to contact on the corporate side, at least to get anywhere. I've also held their stock so I know what the message is for profit to stakeholders. It's not about being socially responsible that's just the marketing side. Logical guess is that this would get kicked to legal and only certain persons would be allowed to dispense funds for compensation with a ton of fingerprints on it.

  Yes. All said previously in greater detail on page 1 & 2. It does require taking back the invocation of 'negligent' because it doesn't exist outside proof of intent. No court? Awesome. No proof on intent? Right on. Also no negligence. Are you angry that negligence has a specific meaning and requires a certain standard of proof? Or, I may be guessing incorrectly, you think I'm telling you, other poster, that you're wrong and I'm right? Because I can assure you we're of the same mind on CRM based solutions. It's just not the same if that helps.

Segue seamlessly into CRM (Consumer Relations Management). Done and done.


This is a repost of what I put in a collapsed spoiler from page 2 with a little expansion at the back end outside of the quote as to why I structured it that way. More for a mental exercise than anything else.

QuoteThis is assuming you want the following outcomes.

1. Compensation for unpaid medical bills only.
2. Changes in corporate practices for food allergic customers that are reasonable and not ending only in a refusal of service to all dairy allergic customers and/or bigger CYA signs.

    Have DD write timeline exactly as she remembers like a witness statement. Refer only to that statement. Immediately stop all usage of "I know" "I feel", etc. Stick to times, statements, actions.
    Appeal to corporate interests that are shared interests with customers. Fact: food allergies in some markets are approaching epidemic levels. Fact: they will not be able to avoid serving all allergic customers


Use Sloane Miller's approach by showing how adapting practices to the reality of a growing customer base allergic to a variety of foods will help them as they help customers. Request they adopt practices to reduce contamination including employee training, separation, color coding, and the like.

Show in a timeline by DD that she met her burden of caution, that she more than reasonably sought clarification, that customers like her have been able to continue patronage but for errors that could reasonably be reduced with small changes in practice such as color coding. In the meantime because the error was made without any mediating practices you request unpaid medical bills resulting from the wrong drink be paid plus a request to put into place sensible, effective practices on the corporate side to increase service to the market that will continue to grow with allergic individuals.

The one thing I would not do is allow myself to be maneuvered into a position where the claim essentially becomes Company established with a dairy based menu, you owe me because we were served dairy.

There's a legal fiction called "reasonable person" who never makes mistakes, always has perfect judgment. I'm sure many of us are married to him  . But this fake person creates a standard in common law which can cover a lot of grey areas because that's how a lot of our standing laws came into being. Reasonable person gets used a lot in determining negligence, therefore I hinted and emphasized rather strongly that OP's DD held fast to what reasonable person would do, further demonstrating it with DD's timeline (facts, right?) during the failed instance in comparison to her years of same protocol resulting in success. I therefore put it in their court hands (reducing equivocacy) if DD showed them she followed what a reasonable person would do, including exercising sound judgment, in the WHOLE context of her allergy which does absolutely include a large reality of cross-contamination, that it implies the employee at SBUX did not exercise the amount of judgment in response to a reasonable person. And by association Starbucks' lack of effective, common sense protocols for management of requests such as OP's DD made. She did not ask for a drink free of any milk contamination, she used her protocols previously proven effective to successfully consume a safe for her product within her limitations. Which we can't prove, but neither can Starbucks because it has no policies or protocols in place other than WATCH OUT HERE BE ALLERGENS.

Enough so that when corporate hands it off to legal the logic works out solidly according to common law's reasonable person rather than an allergy CYA issue. To make them think twice before saying no, or at least that's the argument I put forth.

Quote from: twinturbo on December 09, 2013, 09:26:53 AM

Same for negligence, lakeswimr. You need proof to show "clearly negligent" as you introduced. So it can't simultaneously be "clearly negligent" yet not need to prove it. Negligence requires proof of intent (posted upthread) which is a higher standard.

That is if you are taking a legal route.  If you are a consumer making a complaint directly do a company you don't need to go for the in court legal standard of proving anything.  I can call LLBean up today and complain and get a new shirt mailed to me for free, for example.  I can return various products that didn't work how I think they should have and get a new one, depending on the business.  I can complain about an experience at a restaurant or amusement park and maybe get offered free admission in the future.  Not that I recommend doing such things without reason, but none of these things requires me to show anyone was 'clearly negligent'.  I am suggesting the OP pursue this a bit further and see if she can get compensated.  I'm not suggesting she take the legal route unless for some reason she would like do to do so.  Yes, it will be a he said/she said thing except that her child doesn't react to xcontam and she would probably get a doctors note stating that a reaction of the sort that happened would have to have been caused by them putting actual milk into the drink rather than from xcontam.

I'vbe been following this thread with great interest. I just came in to say that TT is blowing me away with her clarity and analytical skills. 

Yeah, negligence is more like "SHOULD have known, but kind of willfully CHOSE to not know."

It's not "ignorance" which is not really a choice so much as just lack of being informed.

The problem with FA in food service settings is that the latter is so common that it becomes really hard to see where it crosses into the former.

Not everyone that has been educated is magically cured of their ignorance in one go-- and some of them may never be fully enlightened.  We all know this from dealing with friends and family-- there's always that one person that you're never really going to trust because they just... can't get it.  They try, but they just can't go there. 

Well, those people are sometimes adults who are more or less functional in every other way-- so surely they work somewhere.  What if it's in food service?

That is what I wrote in the spoilers. In each I take a different position as each party.

In taking OP's position I detailed how I would use what information I had to put in polite, targeted messaged requests to corporate. See spoiler for details.

In taking SBUX's position I would take my chances in court because I would not compensate anyone for dairy when my business model is dairy.

I understand you and OP, others may feel "knowing" can be substituted for proof. I disagree for reasons I've detailed for both sides. The closest specific law we have here is FALCPA for packaged goods. Outside of voluntary recalls we initiate recall requests upon testing product, do we not?

Same for negligence, lakeswimr. You need proof to show "clearly negligent" as you introduced. So it can't simultaneously be "clearly negligent" yet not need to prove it. Negligence requires proof of intent (posted upthread) which is a higher standard.

I understand the OP has already contacted the company to no avail but I would send them a letter with copies of your medical bills and a request that they pay for them.  It can't hurt to try a bit more to get them to pay for what this cost you.  I don't know that I would actually go to court, though.

Quote from: twinturbo on December 08, 2013, 06:14:50 PM
Proceed how? Specifically? How do you meet the burden of proof of negligence in this instance? That is not a rhetorical question because if one can answer that OP has a much straighter line to compensation.

Upthread is a definition of negligence in a spoiler tag to save space. Negligence requires proving intent, a rather difficult thing to prove. So how?

Here's what I would do if I were OP.

[spoiler]
This is assuming you want the following outcomes.

1. Compensation for unpaid medical bills only.
2. Changes in corporate practices for food allergic customers that are reasonable and not ending only in a refusal of service to all dairy allergic customers and/or bigger CYA signs.

• Have DD write timeline exactly as she remembers like a witness statement. Refer only to that statement. Immediately stop all usage of "I know" "I feel", etc. Stick to times, statements, actions.
• Appeal to corporate interests that are shared interests with customers. Fact: food allergies in some markets are approaching epidemic levels. Fact: they will not be able to avoid serving all allergic customers

Use Sloane Miller's approach by showing how adapting practices to the reality of a growing customer base allergic to a variety of foods will help them as they help customers. Request they adopt practices to reduce contamination including employee training, separation, color coding, and the like.

Show in a timeline by DD that she met her burden of caution, that she more than reasonably sought clarification, that customers like her have been able to continue patronage but for errors that could reasonably be reduced with small changes in practice such as color coding. In the meantime because the error was made without any mediating practices you request unpaid medical bills resulting from the wrong drink be paid plus a request to put into place sensible, effective practices on the corporate side to increase service to the market that will continue to grow with allergic individuals.

The one thing I would not do is allow myself to be maneuvered into a position where the claim essentially becomes Company established with a dairy based menu, you owe me because we were served dairy.

[/spoiler]

If I were SBUX [spoiler]I'd wait you out in court. There's no way as a food service modeled around dairy and coffee I'd make any compensations involving dairy. [/spoiler]

The key IMO is context and tone in request, but also your expectations will matter. In providing full context of the dairy allergy and risk I'd stay on message about common sense precautions, reasonable requests, self-responsibility with regard to DD's timeline (not what you feel, think, "know" as someone not part of the event), highlighting the same regimen used by her to successfully manage her drinks previous years at Starbucks without incidence. Hammer away that it's something a reasonable person would do, and has done with success, that it is in keeping with the medical advice by leading allergists and organization like FARE. Create the structure so that it is convincing that it was employee inattention that was at cause in this particular instance.

If someone has a stronger, more convincing approach go for it. That's all I can come up with.

You don't have to go to court.  When I had that reaction to a product I called their customer service and talked to someone a few levels up and got what I wanted.  That is what I would recommend. I didn't have to 'prove anything'. 

Or they may have terminated the employee completely with good motives because the employee didn't follow policy. If the incident called for a termination, they did it "out of concern" for what could have happened to your Dd. But in guessing there were other issues and this was the final straw.

I'm guessing that the termination may have even been SBX's method of limiting THEIR potential liability here, too.  If you can't find the employee, or point to him/her as a person under the auspices of the parent company/brand... well.  They can just shrug and say "Employee failed to follow our policy, we terminated him/her, so what more do you want?"  When the reality is that they MAY have done it to distance the brand from any actions that this person may (or may not) have taken.



Crappy all the way around if so, but call me cynical.