Apr 14, 2021

Quadriplegic Ex-Model Wins Historic Pretzel $29.5M Award


According to the Las Vegas Review-Journal, a recent record-setting settlement remains among the largest in personal injury history in one of the latest stories about pretzel lawsuits. Right in the middle of the COVID-19 pandemic, we have seen two of the hugest personal injury case outcomes in U.S. history.

Historic brain injury case

The family members of George Floyd settled their wrongful death claim against Minneapolis police with a top-notch trial lawyer, Benjamin Crump. Soon after, we have this breaking news story about a $29.5 million Nevada pretzel lawsuit verdict. However, according to Los Angeles brain injury attorney, Michael Ehline, this one could go all the way to the Supreme Court on appeal. The Floyd family's case is over.

Trader Joe's Was Not A Defendant Over The Peanut Butter Pretzel Lawsuit?

Apparently not. [citation needed] The pretzel case involves former model Chantel Giacalone. Ms. Giacalone suffered severe brain damage in 2013 after eating a peanut butter-injected pretzel she purchased from Trader Joe's. She suffered a severe allergic reaction, and her family sued on her behalf, as she is deemed legally incompetent due to her brain damage. Her parents provide her with 24-hour care and told reporters the lawsuit money was being "invested in her future care," including a specially designed home. Her loved ones alleged that the ambulance service aiding their relative acted negligently. A jury agreed and awarded the family nearly $30 million. The New York Post reported on this new case that gained so much of the country’s attention early on.

Just like the infamous McDonald's spilled hot coffee burn case, the pretzel lawsuit is no ordinary case. And we doubt Trader Joe's could have foreseen an outcome like this when the startup farmer's market first opened its doors back in 1967. It's also doubtful the ambulance first responders could have ever imagined their care would contribute to Giacalone's suffering and anaphylactic shock from a peanut allergy. 

However, the importance of both brain injuries, paralysis, and justice before the law are at play here. And there are more twists to pretzel cases than many consumers may think, as we will discuss. The extensive training of first responders often leads to incredible outcomes-- often to the public good. However, mistakes and negligence do occur. 

In this case, Trader Joe's likely warned of foods including peanuts and peanut products in the store. There may have been a warning on the advertisement or package that the pretzel had peanut butter inside. Either way, the verdict was against the EMT defendants and not Trader Joe's North American enterprises.

Trending News. When Are First Responders Liable For Injuring A Patient?

When they are grossly negligent or act in bad faith rendering medical treatment, first, we must address this from a California law perspective. Emergency medical technicians (EMTs) have a tough job. EMT treatment remains critical to life and death during the period after suffering an injury. During an acute health crisis till hospital transport, patients can be stabilized with proper care. The military calls this period the golden hour for a reason.

To better understand both the concept of negligence and why the Las Vegas jury awarded such a large payout, we must first understand the story's background. In the case at bar, Ms. Giacalone pled that she suffered quadriplegia and traumatic brain injuries in her lawsuit. Her lawsuit alleged EMTs improperly gave her intramuscular epinephrine. She is a vegetable for life because she can only communicate with her eye movements. 

Also, she is permanently hobbled because Tetraplegia blocks her brain's neuro signals to her limbs and extremities. Although these would be more common injuries if an EMT crashes their ambulance while delivering someone to the hospital, this case remains unique. 

Here, EMTs caused the paralysis using a misapplied, life-saving medical procedure and failing to carry supplies required under the law. This negligence led to her horrific, catastrophic personal injuries. In California, the first responder EMTs would ONLY be civilly liable if they were found to be grossly negligent.

Otherwise, paid EMTs and even unpaid Good Samaritans have big-time exemptions from civil liability under HEALTH AND SAFETY CODE SECTION 1799.100-1799.112, et seq. And generally speaking, you can't even sue the doctor who gave the EMT instructions that contributed to a patient's injury or death or the EMT for negligence.

What Is EMT Gross Negligence?

Unlike a regular medical malpractice lawsuit, since EMTs have received protection from lawsuits, you must prove gross negligence if you want to sue the EMT.

California CACI Jury Instruction No 425 Characterize Gross negligence as:

"CACI No. 425. “Gross Negligence” Explained:

Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or others. A person can be grossly negligent by acting or by failing to act."

When Is An EMT Not Civilly Liable For EMS-Related Mistakes?

As seen above, mere negligence is not enough to get a jury award in California issuing an EMT. When the EMT was merely negligent in breaching a duty to act reasonably and not reckless or guilty of gross negligence, this article doesn't cover criminal responsibility for an EMT assault, battery, negligence, false imprisonment, reckless homicide, murder, or manslaughter, etc. 

Assuming the civil case happened in California, the law provides that:

"In addition to the provisions of Section 1799.104 of this code and Section 1714.2 of the Civil Code and to encourage the provision of emergency medical services by firefighters, police officers, or other law enforcement officers, EMT-I, EMT-II, or EMT-P, a firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, or EMT-P who renders emergency medical services at the scene of an emergency shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith. A public agency employing a firefighter, police officer, or other law enforcement officer, EMT-I, EMT-II, or EMT-P shall not be liable for civil damages if the firefighter, police officer or other law enforcement officer, EMT-I, EMT-II, or EMT-P is not liable." - California Health and Safety Code Section 1799.106.  

"Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for ‘gross negligence,’ the plaintiff must allege extreme conduct on the part of the defendant.” [Emphasis] (See, e.g., Rosencrans v. Dover Images, Ltd. (2011) 192 Cal. App.4th 1072, 1082, internal citation omitted.)

What About Sovereign Immunity And EMS Lawsuits?

Employees working for or contracted by government EMS systems, including city and county municipal corporation employed EMTs or paramedics, may escape liability under sovereign immunity doctrine. Many states, including California, have laws mirroring the Federal Tort Claims Act statute's language. California has its own tort claims act in the Government Code 900 Sections, discussed more here

However, California law generally imposes no EMS negligent acts $100,000 damages cap as many states copy the federal law. Instead, California protects EMS personnel from pure negligence claims. Thus, in most states, a patient who sues a municipal EMT for negligence may collect up to $100,000 from the city in which the incident occurred. 

But victims may receive nothing from the EMT personally. Besides the MICRA cap discussed below, California government-employed EMTs have similar liability protections as those afforded to civil defendants.

What IS The EMT's Duty Of Care?

There is a special duty for those responding to emergencies. Whether it be ambulance corps or firefighters, the public often expects a higher standard of care. In California and Nevada, an EMT (Emergency Medical Technician) must abide by the "medical standard of care" for the community, the care was given. 

Generally, an EMTs duty to an evacuee is:

  • Providing the quality of care that a similarly skilled, situated, and knowledgeable EMT would fall under objectively similar circumstances. (Because of this, an EMT or paramedic remains just liable under medical malpractice laws just as any other health care provider would be, except for the higher burden of gross negligence).

For example, in the Pretzel brain injury case, when an EMT declines to treat a patient suffering a full anaphylaxis attack properly, the victims will experience breathing difficulties or suffocate. Using a big epinephrine injection rather than the medically prescribed, less dangerous IV drip method was considered negligence.

Epinephrine can be administered intramuscularly. (IM) shot like an EpiPen jab. But it can be delivered intravenously (IV) by shooting it directly into the veins to assure proper dosage. But the delivery method remains condition dependant. In the case at bar, the Las Vegas EMT utilized injected an  (a shot of an upper) epinephrine. 

This medical delivery method is commonly given to victims suffering an allergic reaction-induced shock. However, Giacalone was suffering from full anaphylaxis, which required another slower delivery method using intravenous delivery (IV). - Up To Date

The EMTs Failed to Carry Life Saving Medical Devices Required By Nevada Law?

True. Sadly, even though the EMT company sits on a task force as part of the Southern Nevada Health District, neither of their ambulance medics carried IV the legally required epinephrine IV in their vehicle! Because of this, she suffered a severe allergic reaction. Expert testimony and witnesses during the three-week trial established the EMTs, and their employer was liable for breaching the standard.

The jury found the EMT treated the patient improperly by performing a medical procedure they knew or should have known would rise to the level of negligence. This was after Ms. Giacalone's lawyer, Christian Morris, argued his client lost oxygen to her brain for several minutes after being treated MedicWest Ambulance EMTs. But in California, again, your lawyer must prove "gross negligence,"  not mere negligence.

Do you understand so far? The Vegas brain injury lawsuit included medical expenses. That case also paid out the personal injury victim a significant award for emotional suffering. Sadly, your pain and suffering damages will be limited to $250 thousand under MICRA in California. Thank God the plaintiff suffered injuries in Nevada as opposed to California.

Defendant's Arguments On Appeal?

When the jury returns such a large verdict, expect an appeal or a remittitur. MediaVest, the defendant EMT company itself, asserted the standard of care their employee used was proper, claiming she had a "heightened sensitivity to peanuts."  

Furthermore, their civil defense lawyer, William Drury, defended against using the IV method as the accepted standard because Giacalone remained conscious. The battle of experts may or may not have decided this case. And an appeal is likely to follow. (See also, "Liability for Administering Auto-Injectable Epinephrine" (Id. Section 1240.300)).

  • Justice With Money?

In the meantime, soon after the jury foreman read the verdict, the father of Ms. Giacalone, Jack Giacalone, stated:

 “At least my daughter will be taken care of. I’m happy about that ... all the anguish that we’ve been through for the last eight years, I’m not happy about. I hope MedicWest changes their ways.”

We have received no word as to whether or not "... the agency and/or the EMS provider’s oversight or negligence result[ed] in the suspension or revocation of the EMS provider’s Certificate and/or License." - CLARK COUNTY EMERGENCY MEDICAL SERVICES REGULATIONS Section 1800.200 (Disciplinary Action). 

Other states limit EMT malpractice lawsuits to "willful and wanton" conduct, making lawyers run from those clients. At this point in the proceedings, your California lawyer will need to know whether California's $250,000 non-economic damages cap limitation applies.

Is An EMT A Health California Health Care Provider?

Yes. "MICRA applies to professional conduct even if no special training, knowledge, or skill is required." (See, e.g., Taylor v. the United States (9th Cir. 1987) 821 F.2d 1428).

Generally, California MICRA statutes subsume any personal injury claims against health care providers under the theory of professional negligence. (See Bus. & Prof. Code, § 6146, subd. (a); Civ. Code, §§ 3333.1, subd. (a), 3333.2, subd. (a); Code Civ. Proc., §§ 340.5, 364, subd. (a), 667.7, subds. (a), (e)(4), 1295, subd. (a).)

Health Care Provider Defined

A “Health care provider” is any person licensed or certified and subject to California Business and Professions Code Section 500 et seq... A health care provider can also be licensed according to the:

  1. Osteopathic Initiative Act, 
  2. Chiropractic Initiative Act,
  3. Under Chapter 2.5, commencing with Section 1440 of Division 2 of the California Health and Safety Code.
  4. Any clinic, health dispensary, health facility, licensed under Division 2 (commencing with Section 1200) of the Health and Safety Code. 

A ‘Health care provider’ also includes:

  1. "legal representatives of a health care provider.” (See, e.g., Business & Professions Code, § 6146, subd. (c)(2); Civ. Code, §§ 3333.1, subd. (c)(1), 3333.2, subd. (c)(1); Code Civ. Proc., §§ 340.5, subd. (1), 364, subd. (f)(1), 667.7, subd. (e)(3), 1295, subd. (g)(1).) 
  2. b. An emergency medical technician. (See, e.g., Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388;  (Court of Appeal finds EMTs to be health care providers under MICRA). Furthermore, California put this issue to rest once and for all after the paramedic act was repealed, bypassing complregenice EMT legislation. The legislature was clear, prehospital emergency medical services under Division 2.5 of the Health and Safety Code establish mobile intensive care paramedics as EMTs. The legislative intent was that EMTs . . . be deemed ‘health care providers’ within MICRA’s purview.” (Id. at pp. 396-403.)

Why Would Ms. Giacalone Have Received A Lower Jury Compensation Award Due To California's MICRA Law?

Probably. This peanut butter injected brain injury pretzel case with allergic complications has become a popular news story, especially among California personal injury attorneys. You see, we generally can't get clients this fair and just compensation because of California's Medical Injury Compensation Reform Act, California Civil Code § 3333.2 (“MICRA”).

Our research shows that in 1970's California, then-Governor Jerry Brown cut a sweetheart deal with medical practitioners and state lawmakers to shield negligent doctors from medical malpractice lawsuits. The MICRA law (with no adjustments for inflation) limits bad medical care victims to $250 thousand in general damages. 

General damages, including pain and suffering, are a major component of all personal injury lawsuits. So this Nevada case may light a fire under California consumer lawyers to lobby on behalf of patients for pain and suffering compensation rights against doctors and ambulance EMTs. This case comes on the heels of another pretzel lawsuit.

Here, following swallowing the peanut butter-infused pretzel, Giacalone entered into an allergic reaction. However, the paramedics' action at the site made a crucial difference in the young woman’s future. Her family alleged that the ambulance workers were negligent in their duty-- not simply due to a basic error, but due to an oversight that should have been avoided.

After Giacalone ate the pretzel, leading her body into an anaphylactic shock. She was treated by MedicWest Ambulance and lost oxygen to her brain for several minutes. Her attorney argued that the medics at the location had the wrong type of epinephrine that could have saved Giacolone from injury. The actress's attorney argued that the company chose the less expensive drug version to save on money. The result, he argued and won, was the severe injury to a person's life. Giacalone now has quadriplegia and must be fed through a tube.

The end of the case will have several serious effects on the future. The first is the ability of Giacalone’s family to pay for medical expenses. Since their daughter is disabled, she requires permanent around-the-clock care by family and medical professionals. Furthermore, she is only able to communicate with her eyes. A combination of factors led the jury to award. However, as the family stated, the money will be needed to pay for this care, likely for the rest of her life. There was no money made here, only the family's ability to care for their ailing daughter.

The second lesson learned is about the concept of negligence. Since MedicWest decided to skimp on the live-saving medicine needed by patients allegedly, we have the result we see today. (A $2.42 IV) could have saved her life) The ability of Giacalone’s family to seek some peace is a precious thing. Hopefully, the win will also provide a valuable precedent for others in need of serious expenses due to others’ negligence.

One case is not necessarily a trend, but the nexus of understanding brain injuries, quadriplegia, and holding negligent parties accountable is important to the future of civil law.

Other Pretzel Lawsuit Twists In The News

Another reason for the pretzel story's popularity is largely thanks to the circumstances of the case itself. A model and pretzels. But another pretzel lawsuit is working its way up the federal court system right now. The Fourth Circuit ruled on March 17, 2021, that Snyder’s-Lance Inc. and Princeton Vanguard LLC can appeal their trademark lawsuit against Frito-Lay Inc. The basis of their claim is that they own  “Pretzel Crisps,” not Frito Lay. After they lost their appeal to the Western District of North Carolina Trademark Trial stemming from a Trademark Trial and Appeal Board (TTAB) finding, ruling against their trademark rights.

Judge Kenneth Bell ruled several years after the lawsuit was filed that he had no jurisdiction over the matter and dismissed the case. However, federal judges Paul Niemeyer, James Wynn, and Henry Floyd disagreed. These Fourth Circuit judges reversed Judge Bell's decision, remanding the “Pretzel Crisps” back to the district court, ruling:

“We join our sister circuits that have considered this question and hold that a district court may review a subsequent decision of the TTAB in such circumstances.”

Frito-Lay's Argument

The large corporation argues the phrase “Pretzel Crisps” is not distinctive enough to give it trademark protections. 

Plaintiff's Argument

Plaintiffs asserted in their reply brief Fourth Circuit Court of Appeals reply brief on remand that the federal lower court the proper forum to hear the appeal from TTAB's decision was correct. The TTAB found that the government had granted “Pretzel Crisps” a descriptive mark and not a distinctive mark in 2004. Because of this, the administrative officers reasoned fewer protections were available. Hence, Princeton Vanguard reapplied for a more distinct mark in 2009. But this time, Frito-Lay objected, asserting “Pretzel Crisps” remains a generic, commonly used name for pretzel crackers. In 2014, TTAB agreed with Frito-Lay, rejecting the plaintiffs' case. 

This time, the plaintiffs filed an appeal with Federal Circuit. And in  2015, the District Court found that TTAB erred since the board viewed “Pretzel” and “Crisps” individually rather than accounting for the actual product's name. But after the case was remanded to TTAB in 2017 by the U.S. Circuit Court, the TTAB concluded that the phrase was still generic, despite the District Circuit's findings. (Still not distinct enough). 

Next, plaintiffs appealed to a U.S. District Court, and that court found plaintiffs could not go to a lower court after it had already appealed to an appellate court. Although this was not a personal injury case, it shows us that pretzels can make many unforeseen twists. The plaintiff's attorneys, in that case, are Kirkland & Ellis LLP and Debevoise & Plimpton LLP. The defense counsel is Pirkey Barber PLLC.

Trader Joes Peanut Butter Case Three?

Maxim Marketing recently filed in Los Angeles Superior Court against ConAgra and Trader Joe’s. (LASC BC 533822) 

This plaintiff alleges causes of action for:

  • Breach of contract, 
  • Intentional interference with contractual relations,
  • California antitrust law violations.  

What the trial court will decide, like the other two cases, will be an evidence-based process.

Conclusion

We recently saw Pretzel lawsuits in many forms during the Coronavirus pandemic, with one being for trademark infringements and another for severe bodily injuries. The main difference here is that someone is damaged when their intellectual ideas or property gets stolen in trademark and breach of contract-styled cases. In a personal injury case, a person's happy life is stolen by a negligent person. In both cases, a victim is suffering through their version of tremendous trauma. 

Although this was a record-setting jury award for Ms. Giacalone and her loved ones, the EMT company can still appeal-like trademark cases. Can you think of any twists in these pretzel lawsuits that our quadriplegia lawyers failed to discuss? We want to know. You can call us at (213) 596-9642, or you can fill out our online contact form to chat with a personal injury today at Ehline Law Firm!

Citations:

Associated Press. the model was left paralyzed after a severe allergic reaction to a peanut butter pretzel https://news.yahoo.com/model-left-paralyzed-severe-allergic-175123830.html






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