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Enbastet's avatar

Speaking as a plaintiff's attorney:

1. Write the check. (Don't even think of arguing comparative negligence on the basis that she knew that she should really just avoid caffiene in uncontrolled situations.)

2. Fire any in-house counsel who advises that this item can remain for sale, even with an amped-up warning.

Panera was at least on constructive notice of the problem through the social media postings and is now on actual notice that in susceptible individuals the effect may be far worse.

Since the legal principle is that you take your plaintiff as you find them the requirement is to act reasonably - you may not be able to accomodate every possible personal issue but a wide-enough swath of the target population was reporting the same problems and now there is a fatality so it is inherently unreasonable to continue to sell this product, particularly with a very weak warning that, in emphasizing moderation, does not address the issue of harm from a single use.

In fact, continuing to do so would now be moving out of negligence and into intentionality, which insurance does not cover.

So, well, sheesh...

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Flashman's avatar

"Course, one of the reasons--but not the only reason--America is over-caffeinated is that we as a nation are overworked, overscheduled, and under-rested.

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