Jonathan Bilyk Oct. 4, 2013, 11:16am

The makers of a caffeinated alcoholic beverage will get another chance to move proceedings from Chicago to Virginia as courts consider a lawsuit brought against the businesses by the parents of a 15-year-old Virginia boy who died after drinking the beverage.

In an unpublished order filed Sept. 27, a panel of the First District Appellate Court reversed the decision of Cook County Circuit Judge John Kirby, who had ruled that the defendants, including beverage maker Chicago-based Phusion Projects, did not provide enough evidence to support dismissing the case from Cook County and forcing the plaintiffs to file suit in Virginia.

The appeals panel determined that the trial court should take the case back and reconsider the defendants’ request in light of additional considerations the lower court had not sufficiently weighed.

Justice Stuart Palmer delivered the appellate court order, in which Justices Margaret Stanton McBride and William Henry Taylor II concurred.

The case arose following the 2010 death of Virginia teenager John D. Rupp III. According to his parents, John D. Rupp Jr. and Karla Rupp, the boy and some of his friends purchased a caffeinated alcoholic beverage known as Four Loko at a gas station in Manassas, Va.

The beverage’s combination of alcohol and large amounts of caffeine – as much as the equivalent of several cans of beer mixed with two cups of coffee – make it a potent blend.

The boy reportedly drank two cans of Four Loko before attending a concert with his friends on Sept. 25, 2010.

The boy began acting strangely, and his mother had to pick him up. The boy’s erratic behavior only worsened, however, and he eventually ran from his home onto a busy highway where he was struck by a vehicle. He died the next day.

His parents later filed suit, alleging negligence and wrongful death against the beverage makers and distributors.

They claim that “Four Loko was unreasonably dangerous;”  the beverage “masked intoxication,” thus increasing the risk of alcohol-related harm; the drink was “specifically marketed to … underage consumers;” and the drink was “sold in convenience stores where clerks were less likely to verify a customer’s age.”

In July 2011, Phusion asked the court to dismiss the case based on forum non conveniens, as the defendants argued that Virginia was a more convenient location for them to try the case, noting, among other arguments, that Rupp died in Virginia and about two dozen “relevant witnesses” could be compelled to testify in Virginia, but not in Illinois.

In April 2012, Phusion was joined in its motion to dismiss based on forum non conveniens by Synergy Flavors Inc., a company also named in the suit.

The trial court disagreed, however, finding that Cook County was the most convenient location to try the case, as the businesses being sued were based in Illinois, or closer to Illinois than to Virginia; local attorneys were representing all involved; the defendants were “premature” in seeking to move the case; and that it was not an undue burden to empanel a jury in Cook County to hear the case.

The defendants appealed the decision.

On appeal, the justices sided with the trial court on many aspects, also noting the strong connection to Illinois, based on the businesses’ addresses and the addresses of their executives.

But, the justices said the trial judge erred in not properly considering that Synergy had joined the motion to dismiss, thus leading the court to rule incorrectly that Synergy would not be subject to jurisdiction in Virginia if the motion to dismiss were granted.

The justices found that the trial judge did not properly consider this question as a “public interest factor,” instead improperly considering it as a “private interest factor.”

The justices also said the trial judge must now take into account additional legal actions filed by the Rupps in Virginia against additional defendants, that more suits have been filed against Phusion, and that Phusion is also fighting additional legal battles in Cook County surrounding product liability and insurance coverage for Four Loko.

All those actions were initiated while the appeal was pending in the forum non conveniens matter.

The justices said the trial judge should again consider the motion to dismiss, next time explicitly considering the three additional considerations.


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