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

[Mfamom]

are all soy "milks" uncontaminated? 
seems like I remember someone posting about cuties tofutti being grossly xcontaminated with milk? 

sorry about the reaction and i hope you can get some help with expenses.  It does seem like there is a certain assumed risk eating / drinking out with food allergies. 

[CMdeux]

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.

What really steams me about things like this is that even if you DO tell them when you order, that guarantees you nothing, really-- and it's your word against theirs that you told them you were allergic when you ordered.

Odds are good that if they screw up the order, they didn't register you telling them to start with, and will (honestly-- at least as far as they remember) not even recall you having said anything.

[Former Member]

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).

Any time anyone eats out there is a risk.  So I am not sure what you mean.  Because her milk threshhold was so high, the risk was very minimal, and there is risk any time one eats out with food allergies.  I don`t think that relieves the restaurant of responsibility.  If it did, then there would not have been the various settlements over the years for restaurant mistakes causing allergic reactions.  I believe there was a settlement between the Chinese restaurant and the family of the 12 year old pa girl that died during the December school holiday party a year or two ago.  Similarly one could say but the family knew there was a risk by eating restaurant food.  I really don`t think that gets the restaurant off the hook, especially with a blatant mistake such as this one and then lying to cover it up.

[Former Member]

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.

When she went up to ask, she tried to tell the employee that the reason she needed to know was that she was allergic to milk.  However, the employee would not let her speak and insisted that she could tell by looking at the drink whether it had soy milk or cow`s milk.  We have now learned that the employee was terminated immediately after the incident.

[twinturbo]

Just pointing out a couple of logic or testimonial issues so don't shoot the messenger.

1. You weren't there. Correct?

2. Your last statement as is makes it that Starbucks was never informed of the allergy. Not at the point of sale prior to the making of the drink, and not after. Whether due to interruption, or busy clamor DD did not get the message through, accepted the explanation that barista ID'd based on look of drink alone, and still drank it.

There's two ways to take this. Emotionally defensive here, or deep consideration of weak points to make your argument stronger when it counts. I'm ambivalent about your action against Starbucks. I'm not convinced this particular incidence is negligent by a long shot, but on the other hand I think the reality for food service is that they will need to overhaul geographically where they operate in populations with epidemic levels of food allergy. That's a matter of reaching critical mass.

[Former Member]

Just pointing out a couple of logic or testimonial issues so don't shoot the messenger.

1. You weren't there. Correct?

2. Your last statement as is makes it that Starbucks was never informed of the allergy. Not at the point of sale prior to the making of the drink, and not after. Whether due to interruption, or busy clamor DD did not get the message through, accepted the explanation that barista ID'd based on look of drink alone, and still drank it.

There's two ways to take this. Emotionally defensive here, or deep consideration of weak points to make your argument stronger when it counts. I'm ambivalent about your action against Starbucks. I'm not convinced this particular incidence is negligent by a long shot, but on the other hand I think the reality for food service is that they will need to overhaul geographically where they operate in populations with epidemic levels of food allergy. That's a matter of reaching critical mass.

1.  That is correct.

2.  Huh?  My last statement is that we have now learned that the employee was terminated immediately after the incident.  I have no idea where you got the impression that dd accepted that one could tell if there was milk by the look of the drink and drank it.  At no point did I say that.  The barista lied and said that she could tell the drink had soy by looking at it and this lie occurred when dd went up after the reaction had started.  Yes, of course she informed them about her allergy.  After the reaction started she went up and asked, and said she really needed to know because......then tried to say she is allergic to milk, but the barista cut her off.  So yes, she told them about her allergy when ordering and no, of course, she did not drink it after reacting, which means that she did not drink it after the barista said she could tell by looking it had soy.  I hope this is more clear.  I don`t think an 18 year old who self injects early in her reaction and carries her epi everywhere would be foolish enough to accept that a drink is safe just because the employee thinks she can tell by looking.  Definitely not my kid or probably any kid who has a parent on this board.

[twinturbo]

Re-read what you wrote. The point is, should you choose to look at it differently, is that the way I'm examining your statements now is a light touch compared to what you'd most likely come across. Another good tool to anticipate counterarguments now before you file statements, etc., would be to try debate.org as a tool like a moot court. The good ones know how to argue from views they themselves don't even hold.

I know what you are telling me. I have no idea what you or your daughter will be able to prove, or what law you will be able to prevail upon. Right now there's some second hand information on a forum using inference based on assumptions without any particular set of protections most of us can seek through ADA, FAPE, FERPA, there's none of that here.

I'm not purposely and pointlessly trying to piss you off. You are going to have an uphill battle, and if you can't prove the basics now you'll have to at some point. Better to find the weak spots now when nothing is at stake so you can be stronger with whom it matters.

Edited to add one thing I would strongly encourage you to consider. Here you are talking to the people most sympathetic that have at least walked a mile (many) in the LTFA shoes. So if this is home court, with BTDT experience to the tune of decades of combined experience, please, please consider how carefully you will have to present your argument to unsympathetic parties who have no idea what LTFA is like outside of liability. You know the line know yourself and know your enemy to determine the outcome of a battle?

[lakeswimr]

Good luck with this.  I think it is worth pursing to see if you can get anyone at the corporate level to speak with you. 

I once had a product cause hives over much of my body and go the company to pay for medical expenses (which were not that much.)  They even offered to pay more but I only wanted what the use of their product cost me. 

I think they were clearly negligent.  That's a huge mistake.  The branch needs procedures in place to try to prevent that type of mistake.

I hear you on the high threshold and xcontam not being a big risk for your child.  This wasn't xcontam.  This was milk instead of soy milk.  Big difference.

[twinturbo]

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.

[nameless]

...just seeing this all now.

Most every Starbucks I've been in over the past few years has had an Allergen Statement posted somewhere to the wording of 'eat here at your own risk if you have food allergies' in regards to the pastry case, others foods, and the drinks. They started doing this chain wide about 5 years ago maybe.

Before pursuing a lawsuit - I'd go take a look at that Starbucks to see if you can find the signs posted.

It's crappy the barista lied, true that.

[SilverLining]

Any time anyone eats out there is a risk.  So I am not sure what you mean.  Because her milk threshhold was so high, the risk was very minimal, and there is risk any time one eats out with food allergies.  I don`t think that relieves the restaurant of responsibility.  If it did, then there would not have been the various settlements over the years for restaurant mistakes causing allergic reactions.  I believe there was a settlement between the Chinese restaurant and the family of the 12 year old pa girl that died during the December school holiday party a year or two ago.  Similarly one could say but the family knew there was a risk by eating restaurant food.  I really don`t think that gets the restaurant off the hook, especially with a blatant mistake such as this one and then lying to cover it up.

I know the family was sueing, but haven't heard of a settlement.  There was a settlement with the school board.

As for the employee being fired, it may or may not be related to what happened with your daughter, but either way, proving it relates to that would be near impossible.  And if you are considering legal action proof is what you need.

[CMdeux]

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.

[Macabre]

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.

[lakeswimr]

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'. 

[lakeswimr]

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.