New York Personal Injury Law Blog » ad damnum clause, Ilya Novofastovsky, Red Bull


October 29th, 2013

Death by Red Bull, An $85M Lawsuit, And The Money Shot

RedBullLogoThe story comes over the transom like so many others do — with a big fat headline screaming about a lawsuit with a multi-million dollar claim. This one claims that the energy drink Red Bull caused death. And the gist of the claim seems to be — based on this newspaper article as well as the Complaint that I obtained from plaintiff’s counsel — a failure to warn that Red Bull is actually more dangerous than what Red Bull lets on.

The result is that 33-year-old Cory Terry — who was a regular consumer of the product — is dead after downing one of the drinks during a basketball game.

The Complaint itself cites a litany of medical problems allegedly caused by Red Bull that spans many years and many countries, and cites to a number of studies of over-caffinated drinks that have appeared in the medical literature. It then goes on to state causes of action based on strict liability for a failure to design the product properly, a failure to warn of the dangers, breach of warranty and fraud.

For the purposes of my posting, let’s assume that it’s accurate that Red Bull failed to properly warn about the drink’s contents and committed fraud. If true, it could be an interesting lawsuit. Whether it caused this particular death is another issue.

I’ll assume it’s all true because I have an altogether different bone to pick with Ilya Novofastovsky — he being the lawyer that brought this suit.

And that bone is with the claim for $85M for this unmarried construction worker who left behind a 13-year-old son.  Now it’s not $85M in compensatory damages as the NY Daily News story would have you believe. It is $5M each for seven different causes of action plus $50M in punitive damages.

But here’s the problem: In New York, you aren’t allowed to put an ad damnum clause in a lawsuit. That’s the fancy pants Latin phrase for the monetary demand. New York outlawed this practice — a practice I’ve always despised — for medical malpractice cases in the 80s and for all personal injury cases in 2003. Ten. Years. Ago.

At that time Walter Olson, the founder and editor of Overlawyered, celebrated the demise of the ad damnum clause, as did his oft-times foils the lawyers themselves. As Olson noted back then:

New York thus becomes the latest state to adopt a measure that is relatively rare among litigation reforms in eliciting widespread support from among both defense interests (example: American Medical Association model legislation, PDF) and the plaintiffs’ bar…The state bar association urged Pataki to sign the bill, saying it “will reduce pretrial publicity about how much money is sought from particular defendants, and deals with the common misunderstanding by the general public that the amount sued for is the amount actually obtained by plaintiffs.”

And yet, some lawyers still put that clause in. Why? There are only two possible reasons, as I explained last year when a lawyer sued for $30M over a dog bite: Either the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue.

And so Ilya Novofastovsky becomes the latest lawyer to embarrass the rest of us, as we face down potential jurors who appear in the courthouse. It’s headlines like this that poison the well of potential jurors. He may not have caused embarrasement deliberately, but that’s the effect.

Every time I pick a jury I am forced to deal with unusual claims that appear in press headlines, distracting me from the job I was hired to do. The biases are there, planted firmly in their brains by lawyers that make monster claims that bury the reason they actually took on the suit. The fact that these claims are outliers is of no significance, because these are the ones that jurors see in the paper. These are the cases, and the lawyers, that help to poison public opinion.

And lest you think I am overstating the case,  you are free to read the acerbic comments that accompanied that Daily News article. This is a sampling, and think for a moment how the comments would be different if the story headline dealt not with money, but with the product being mislabeled and focusing on the fraud, which is the actual crux of the complaint:

Wow. This has “looking for an easy buck” written all over it.


He chose to drink it. Now shut the hell up about suing the company for 85 million. You just want some easy money.

The family is simply looking for some cash.

Welcome to America. There are no consequences for filing frevious law suit. $85million? That’s what he would have made in his lifetime of robbing and stealing perhaps.

Opportunists looking for a quick payout.

And so the headlines — those things that affect jurors — aren’t about fraud and product problems. They are about the money; the money is always in the headline.

A quick story on the subject: A bunch of years ago a TV reporter was doing a story on New York’s broken sidewalks and wanted to interview me regarding one of my cases, that being an elderly woman who’d tripped and busted her arm. It was a plain vanilla case, so to speak, but a good example of what happens when you don’t fix busted sidewalks. They are dangerous, and that’s what the story should be about (and what the reporter told me it would be about).

With the camera rolling, the reporter then asked how much we were suing for. This was the money shot, so to speak. Being prepared for that inevitable question I responded in three to four very unquotable sentences about how difficult it was to predict the future, and the potential surgeries, but that I didn’t think the case would exceed x.

That’s great, she said, now can you give me the answer again, but shorter, with just the money? And with the camera rolling again I slowly gave her the same three to four unquotable sentences.

I wasn’t giving her the money shot. While money may be what we are forced to sue for, since I can’t get my client’s health back, this was a story about safety.

Lesson: Don’t give the press the money shot. If you do, the story is no longer about safety, injury prevention and personal responsibility for those that are negligent (or worse). Now it’s all about the money.

Eventually, a lawyer will need to turn to the money when in front of a jury. But then it can be presented on its own terms, unfiltered by the distortions of the press.

Update (11/1/13): Max Kennerly discusses the substance of the case.

38 thoughts on “Death by Red Bull, An $85M Lawsuit, And The Money Shot

  1. Eric,
    Reading your blogs sounds like you are a failing jealous attorney… You should seek some mental health help. Your arguments are weak and just attacking attorneys/judges as opposed to arguing cases and reviewing proof. As you know the whole thing is law is about proof and evidence and nothing else… Your argument therefore is weak and like the attorney you are.

    • Reading your blogs sounds like you are a failing jealous attorney… You should seek some mental health help. Your arguments are weak and just attacking attorneys/judges as opposed to arguing cases and reviewing proof. As you know the whole thing is law is about proof and evidence and nothing else… Your argument therefore is weak and like the attorney you are.

      Thank you for that insightful comment from your anonymous account. I know that readers feel better educated for having taken the time to consider it.

  2. Eric

    This is one of the more insightful pieces I have ever read about the problems that plague our profession. You hit the nail on the head. Congratulations.


  3. Mr. Turkowitz,
    Looking at the number of comments you got on all your blogs, I may be your only reader… Shows how popular you and your blog are… Hope you are a better attorney than blogger…

    • I may be your only reader

      Perhaps. But I wouldn’t want to put too many eggs in that basket.

      BTW Novo, I probably did you a favor with this piece even though you don’t know it, by redirecting (hopefully) the story toward the gravamen of the complaint and away from the numbers that you put in the Complaint. Of course, since most of the stories have already been written and the press has moved on, it’s likely too late.

      Press headlines that read “Red Bull Sued For Fraud” or “Red Bull Sued Over Drink Safety” would have been a whole lot better — for you, your client, and the profession as a whole.

  4. eric-

    assuming you are a failing jealous attorney, in need of mental health help, as the anonymous poster suggests, take heart in knowing that he/she appears to be your legal groupie, hanging on to, and learning from, your every word, as evidenced by the response from this maroon coming within minutes of you posting your blog.

    so you have that going for you, which is nice.

  5. This lawsuit probably has more facts behind the scenes, but in my opinion (yes just an opinion) this lawsuit has as little merit as making a loss of consortium claim as a defense to a collections case by a dentist.
    Putting aside the lack of merit on its face, this is simply someone trying to ride to coat-tails of Four Loko, but it is focusing on the caffeine aspect. The citations to European practices or decisions, along with random citations to purported studies is amateurish.

    IN MY OPINION, this type of lawyering is embarrassing to our profession, and shows an extreme ignorance of Red Bull’s reports to the FDA. The FDA has MedWatch Adverse Event
    Reporting Program.
    “Based on a search of CAERS, this document summarizes the adverse
    events reported to FDA in connection with products under the label Red Bull between
    January 1, 2004 and October 23, 2012”

    Perhaps counsel should read it to see what has occurred on this side of the Atlantic Ocean.

    But again, this is just my opinion. This does not reflect any opinions of the Blog, or my employer or co-workers.

  6. Eric,

    Great post as always. Your post identifies the precise problem with including such damages in the petition/complaint. It turns the focus from safety to money. It creates a headline for tort reform rather than accountability.

    There are very legitimate concerns about health effects and safety of energy drinks like Red Bull. Our associate Joey Hoflander wrote about this subject for his law review several years ago and argued there for regulation of these drinks similar to FDA regulation of cigarettes.

    However, that safety problem is lost on all of those who see the headline.

  7. Again you lack the intelligence to get your facts straight…. maybe this says something about your law skills as well…. I am not NOVO but I am a fan and very grateful to NOVO for many causes he stands for. @Eric Turkewitz

    • Again you lack the intelligence to get your facts straight…. maybe this says something about your law skills as well….I am not NOVO …

      Huh. Go figure. You see I checked the IP address for your comments against the IP address for the email that was sent to me. I’m sure you must have known those were available, right?

      You know, I did that whole “collect the evidence” thing that lawyers do. And I found a direct match.

      Musta been some kind of gremlins inside the interwebz that caused that to happen.

  8. Try again… still wrong…. again JUST A FAN… clearly think you are trying to steal a true man’s thunder… goggled your name and saw no big news on you except in stealing other legal people in the profession’s thunder.

  9. @Smile

    “goggled your name and saw no big news on you except in stealing other legal people in the profession’s thunder.”

    you googled jillman and that’s all you came up with? odd. what spelling did you use?

  10. In case you did not clue in on the news, maybe its time you realize all the great causes Mr. Novofastovsky supports and how many times he has been recognized as a leader in this city, state, country and around the world. What do you stand for, except for stealing others thunder?…. clearly this is blog is not my only beef with you…. I have many bones to pick with you, your blogs and practice.

  11. Smile, you really ought to check out the people that you are a fan of. The facts speak for themselves; his ad danum clause is improper. Ignorance of the law is no excuse (a 1L law school concept). So, another explanation is sensationalism. Head-line grabbing. Legal war mongering. Attorneys who bully corporations with meritless lawsuits hurt the profession.

    You want to see how great Novo is… the guy made a claim for loss of consortium in a collections case. A dental collections case. Either he is PERHAPS out of his mind or PERHAPS he or his client has a depraved sense of humor.

    It does not matter what causes he champions; poor lawyering is poor lawyering.

  12. @Smile

    “maybe its time you realize all the great causes Mr. Novofastovsky supports and how many times he has been recognized as a leader in this city, state, country and around the world.”

    i’m sure there’s a deserving place for NOVO’s face on mount rushmore with the other giants of our great nation. to make room, no doubt he will replace poor teddy roosevelt, who just could not measure up to NOVO’s lofty standards.

    i can just see it now, parents from across the country taking their children to this great monument and, with a tear of pride in their eyes, tell their kids about the great achievements of the people depicted, “our first president and father of our country, the man who saved the union and freed the slaves, the author of the declaration of independence and force behind the louisiana purchase and the man who got a lot of press for suing red bull for $85 million, seeking publicity by putting a dollar amount in the complaint that the law specifically says not to do.”

  13. Mr. Smile, I am a practicing attorney, and I am always looking for practice tips. Maybe you can ask Mr. Novo the purpose of putting the money amount in the ad damnum clause? I would also like to know which private pathologist did the independent autopsy to confirm the belief that Red Bull caused the decedent’s death, as I have a wrongful death case which I would like to consult a pathologist other than the ones I have previously used. Always looking to learn…

  14. By the way, Eric has written many wonderful pieces on the fraud being perpetrated by No Fault insurance carriers and the doctors who perform so called “IME’s”.

  15. EB,
    Unfortunately, I do not actually know how to reach Mr. Novofastovsky. However, I believe you can Google his name and get his contact info. Hope your case works out and Mr. Turkewitz does not trash you out of jealousy as well. @EB

  16. These comments are hilarious but the funniest part is Novo still trying to act like he isn’t Novo after you called him out on his IP address. Now that is priceless.

    Great blog as always ET 🙂

  17. 1. I find it very odd that someone who professes to be a grateful fan of Novo would not have his contact info. But if you need his contact info, I’m sure you can goggle it. And if that doesn’t work, you can always try Googling it.

    2. Given that Eric has established that “Smile” is writing from the same IP address as Novo, perhaps someone should alert Novo to the fact that someone either hacked his computer or that he has an intruder in his office.

    3. Smile, may I ask how long you’ve been a dedicated reader of Eric’s blog? And did you vote for this blog and help him secure a place in the ABA’s 100 top law blogs? Please let him know as I’m sure he’d like to thank you.

    4. Does anyone know if Novo adds a dollar figure to all of his Complaints or just a select few? If the latter, I wonder what could possibly account for the difference. Hmmmm……

    • It’ll be interesting to see how the failure to comply with CPLR 3017 impacts the litigation.

      Mike: The CPLR doesn’t have a specific sanction for it. A judge could, of course take action under our Court rules — 22 NYCRR 130-1.1 for “frivolous conduct” that is “completely without merit in law.” But New York judges seem to have a great aversion to sanctioning lawyers, so I wouldn’t want to wager that this will happen.

      (For the non-laywers who’ve tuned in, CPLR 3017 is the section that says putting an amount in the complaint is a big, fat no-no. Please excuse my use of fancy technical phrases.)

    • Overnight, several over-the-top comments came in spewing ad hominem attacks. These don’t get published on my blog, as I don’t wish to see it degenerate in such fashion. Challenging arguments is one thing, personal attacks is something else. All the comments were all written in the same style as “Smile.”

      But buried in all the crap was this:

      Turkewitz: please re-read CPLR 3017 again. It applies only to certain actions. Dumb ass!

      It is true that it only applies to certain actions, but those actions are personal injury and wrongful death actions, and that is what this is. Folks can read it for themselves here. This is the relevant excerpt:

      In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

      Each cause of action in the Complaint specifically mentions or references injury or death. The fact that it is also, in some respects, a products liability, fraud or breach of warranty case, doesn’t change that.

      But far more important — because there is unlikely to be a penalty from the court other than to strike it from the pleading if requested — is the effect on the public perception of lawyers and lawsuits and further contribution to the tainting of jury pools for all cases. That is, after all, what this posting was all about. Regardless of whether someone can get away with it in a court of law, they can’t get away with in the court of public opinion. One only needs to read the comments to the Daily News story to understand that.

  18. If only your blog had a like button ET.
    Like Avi G. Like all of your remarks.

    The voluminous nature of the complaint shows a gross ignorance of CPLR Sec. 3013 and R. 3014. The former states that is needed is sufficient particularity of the statements. The latter requires plain and concise statement, with single allegations. Most of the paragraphs are written with much more than needed detail. Most paragraphs contain numerous allegations and numerous sentences. It is written like a 1L Appellate Brief.

    Funny thing though, to ride EB’s coattails a bit here. I wonder if Novo is going to exhume the body for an independent exam.

    Mr. Novo’s Complaint is terrible. He should start the action DeNovo.

  19. California has had a like prohibition on putting claimed damages in the complaint for years. Solution to an obvious breach like this one? One would be a motion to strike, which would get it out of the pleading, but you can’t undo the press eporting. Another would be reporting it as an ethics violation.

  20. Mr. Turkewitz, while I thought your post was insightful, well-written, informative, and an entertaining read, the comments have been even more entertaining. Please reconsider your decision not to publish “over-the-top comments … spewing ad hominem attacks.” I bet they, along with the responses they would generate, would be entertaining as well. Smile, posting from the NOVO firm’s IP address but without knowing how to reach the head of the firm, has been particularly entertaining, so again, please reconsider your decision not to post comments written in his “style” — especially those “over-the-top comments … spewing ad hominem attacks.”

    • Please reconsider your decision not to publish “over-the-top comments … spewing ad hominem attacks.”

      The problem with publishing them is that invites similar responses, thus hijacking the thread. You can see that happen in countless message board postings around the web, oft times devolving into a violation of Godwin’s Law.

      But this post is about the public perception of lawyers as a result of ad damnum clause claims. So while it might be entertaining to let senseless insults fly, it would not be productive of intelligent discussion of the ramifications of the conduct I wrote about.

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