Van De Kamps follow up to incident one year ago that I started a thread on

Posted on: Fri, 04/14/2006 - 5:56am
Carefulmom's picture
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Those of you who have been here more than a year know the story. For those who don`t, here it is. Dd is allergic to milk and peanuts. She had a reaction to Van De Kamps cinnamon rolls in March 2005 after eating them for nine months. I had multiple phone calls with Van De Kamps, they blew me off, I sent the cinnamon rolls for testing, and it tested positive for a large amount of milk. I called Van De Kamps again, they said it was impossible, they did not want to look into it, I reported it to the FDA, the FDA investigated and found that milk was an actual ingredient, and the product had an incorrect label for nine months. Before the incident, dd`s cap rast to milk was almost low enough for a challenge 1.02 in 2004. Allergist planned to do challenge if less than 1.0. Cap rast right before the reaction in 2005 had more than doubled to 2.56. Now it is one year later, and cap rast is down to 1.22, but still up from where it was before being exposed to milk on an ongoing basis for nine months. In addition, according to Robert Wood, if a child has not outgrown milk allergy by age 10, the chance of outgrowing it is less than 1%. Dd was 9 when she started eating the cinnamon rolls, 9 3/4 when she had the reaction. This mislabeled product may be the difference between her outgrowing the milk allergy and not outgrowing it. And for those who live with milk allergy, it is really hard to avoid milk. When I had this thread before, I considered legal action. I have now talked to an attorney, and he made this distinction between liability and damages. The liability is clear, but what are the damages? Apparently the law doesn`t assign any monetary value to keeping a food allergy that you were about to outgrow. So the attorney asked me to write a letter about how the milk allergy has impacted her life, and the law firm will decide whether to take my case. I don`t think the attorneys see it as "catastrophic" enough. I feel that if I don`t do something, then companies can get away with mislabeling a product for nine months, and blowing off customers when they call about a reaction. However, the reality is that dd doesn`t have any monetary damages that I can think of. Does anyone have any ideas of how I can impress upon the attorneys how this has impacted her life or where there are damages?

Posted on: Fri, 04/14/2006 - 6:18am
Darkmage's picture
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Joined: 10/01/2004 - 09:00

Well I can only think of monetary things. Because of a dairy allergy, other foods must be purchased at an increased cost. Almond milk, rice milk and/or soy milk cost more than cow's milk. Fake cheeses, sour creams, etc. all cost more than the cow versions. Also having to buy certain brands of bread because they don't have whey while the cheaper brands do. Not a large amount of money, but it can certainly nickle and dime you to death!
Best of luck.
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[i][b]Allergy Eliminator [/b][/i]

Posted on: Fri, 04/14/2006 - 6:36am
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Joined: 05/28/2003 - 09:00

I cant think of it right now...
But Ill try.
Jason
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Posted on: Fri, 04/14/2006 - 6:42am
Adele's picture
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Joined: 01/31/2005 - 09:00

How about the way MA impacts your DD daily life not only now but in the years to come? Perhaps your DD won't have the option of eating in the school cafetaria, having pizza with friends, attending birthday parties....etc. How about the anxiety that YOU experience now and when she becomes a teenager, as teens are the ones most likely to have a serious FA reaction?
When my son was 9, we were in a serious head-on car accident. The guy that hit us received three citations. He was clearly at fault. Thanks to seat-belts our injuries were not life-threatening. I chose not to sue but in addition to covering our medical expenses, his insurance company offered us compensation for 'pain and suffering'.
How about the pain and suffering you and DD went through when she reacted to the cinammon rolls AND may continue to experience because she hasn't outgrown the MA?
Obviously the law firm doesn't have a clue what it is like to live with FA. I'd set 'em straight!

Posted on: Fri, 04/14/2006 - 7:20am
Naturemom's picture
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Joined: 09/30/2004 - 09:00

How about looking at the data that suggests that an accidental injestion reaction happens every average X # of years. Then have them calculate the costs of emergency medical treatment, pain and suffering, etc.
I really hope that it is inaccurate that only 1% of children outgrow milk after age 10, as my son is 9 and his numbers are not nearly low enough to challenge.
Oh, and thank you for following up with this company. You are right, if they are not held accountable, where is the deterrent to incorrect labeling practices.
[This message has been edited by Naturemom (edited April 14, 2006).]

Posted on: Fri, 04/14/2006 - 7:24am
Kim M's picture
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Joined: 06/09/2001 - 09:00

Carefulmom: I'm glad to hear that your daughter's test results have come back down, but I'm sorry they haven't gone down as far as they were.
In addition to liability and damages, there is also the problem of causation and proof. If you do decide to go ahead with the suit, and your lawyer decides to take the case, I would imagine that VanDeKamps will focus on you not being able to prove that the rolls were what caused her test results to go up. Hopefully you can get enough expert testimony from your doctor or another allergist to at least get past that problem.
I think as far as trying to prove damages, you should focus on the emotional effect the allergy has on her life. The example of Sabrina dying from dairy cross-contamination on a serving utensil is very relevant. I agree that the cost of buying dairy-free products is also something to talk about. But the emotional trauma of having to worry about another food item that might cause her death is very real. She was well on her way to outgrowing it, and now her chances are greatly lessened. I think when we talked about this case before, I had forwarded infomation about a case where plaintiffs had recovered damages for the future threat of possible cancer from some chemical exposure. If I remember correctly, the intial award was overturned, but you might have your lawyer check into the ultimate resolution of that case. If they did end up getting damages, that strengthens your case immensely. The threat of dying from cancer and the threat of dying from anaphylaxis can certainly be compared.
Good luck. Let us know what you decide.

Posted on: Fri, 04/14/2006 - 8:34am
mommyofmatt's picture
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Joined: 03/12/2004 - 09:00

You know how McDonald's is being sued for not disclosing dairy and wheat in their fries?
Consumers filing suits are claiming fraud I believe. What if you also looked at that angle?
I agree that the Sabrina Shannon story may get the attorneys' attention. Meg

Posted on: Fri, 04/14/2006 - 8:53am
Anonymous's picture
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Carefulmom, I can't think of one thing right now that hasn't been covered by the other members who have posted thus far. I think they have all made excellent points.
Years ago here, I remember, probably in the How Did PA Affect Your Day To-Day thread posting about just one day in the grocery store - PA only involved (not MA). I posted about how I had a certain # of $ and what I was able to buy and how I would have been able to buy more if I could have bought say store brand cereal (usually still all "may contain" even nowadays) and how I just felt blicky that one day because I was trying to stretch my limited $ as much as I could, and again, with PA only involved, even then, it was more difficult to do than it would be for someone that didn't have to worry about any FA.
The one thing that I can think of, but I wouldn't be able to get a $ amount for you is that in my Province if you are on Ontario Works or the Ontario Disability Support Program (welfare and disability), if you have a MILK ALLERGY, you fill out a "special diet allowance" form and you receive a certain amount of $ above and beyond the set amount of the cheque so that you can accommodate the MA. So, in our Social Services, in Ontario (and please note that does include people who are physically or mentally disabled, not simply people on welfare), they recognize MILK ALLERGY (and a couple of other food allergies - NOT PA though) as being an added expense where you would need extra money to buy food.
We certainly all know that when it comes to PA alone, never mind when you add any other FA's into the mix. I know at one time, I actually did figure it out (oh, I was doing a test case with Jesse for a Provincial benefit based on a hidden physical disability - he did not qualify, but I wanted to test it as I have with a lot of things through the years) - how much extra $ it cost to buy PA safe foods compared to being able to buy say store brand cereal. To me, even at that time (and again, it was at least five years ago), there was a BIG difference, one that obviously ALL of us here deal with as best as we can, but still a difference.
Again, add another allergy into the mix, especially something as common as milk, and I would think there would be a huge $ difference when grocery shopping.
Okay, with the lawsuit, would you be mentioning that your daughter has other food allergies? Because I was thinking about the cost of the things that come with having one FA - Epi-Belt, Epi-pens, Benadryl and probably some other things that have blipped out of my brain. But no, your daughter would need those regardless because of her PA.
As Adele pointed out - the "pain and suffering" part - extremely stressful and tragic.
Do you know if you could get a lawyer that is more aware of FA's? For example, does FAAN have any lawyers that help people out or can they recommend anyone? I do know that at one point when I spoke with Anaphylaxis Canada about something, they did say they would have to ask their lawyer to get the answer for me.
Stretching it - but even next generation - how this is going to impact your daughter for the rest of her life - when she has children and may not be able to have milk products in her home. Now, if my PA son can't have peanut products in his home when he's a grown up and his children can't, I don't really consider that a big deal. But my soul, milk is just EVERYWHERE.
Kim M., good to see you. [img]http://uumor.pair.com/nutalle2/peanutallergy/smile.gif[/img]
Please let us know what happens or continues to happen.
Best wishes! [img]http://uumor.pair.com/nutalle2/peanutallergy/smile.gif[/img]
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If tears could build a stairway and memories a lane, I would walk up to heaven and bring you back home with me.

Posted on: Fri, 04/14/2006 - 10:08am
LisaM's picture
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Joined: 11/04/2005 - 09:00

No advice--but I just wanted to say that I think it's great that you are pursuing this. If you do start a lawsuit, I hope it hits the headlines everywhere!

Posted on: Fri, 04/14/2006 - 11:01am
magic tree house's picture
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Joined: 04/14/2006 - 09:00

a potential future cost might be the cost of housing when she goes to college. She may not be able to live in the dorms and use college dining plan because of the milk allergy. It may be safer for her to live off campus in her own apartment with her own kitchen where she controls the food.
I thought the statistic is that there is only an 8% chance of outgrowing milk allergy if it hasn't been outgrown by age 10.

Posted on: Sat, 04/15/2006 - 1:57am
Carefulmom's picture
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Joined: 01/03/2002 - 09:00

Thank you everyone for your responses. These are all really helpful. I had not thought about the increased cost of a milk free diet, and she definitely won`t be living in a dorm in college if still milk allergic. About the statistic of less than 1% outgrowing if still allergic at age 10, I found it in a recent article by Dr. Robert Wood. Dd`s allergist does not agree, and says he had patients still outgrow even in their 20s, but it is very helpful for a lawsuit.
I really feel that I need to do this, and it is really not just about milk allergy. They could have just as easily left the word "peanuts" off the label if something had peanuts in it.
There are lots of good ideas here. I am going to write this up when dd goes back to school on Monday (it was Spring Break last week).

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