Family of dead man loses suit against Pepsi

CONCORD – A federal judge has thrown out the bulk of a lawsuit brought by the parents of a young man who died after swallowing a pushpin while copying a Pepsi commercial that showed a college student “shotgunning” the soda.

U.S. District Court Judge Joseph DiClerico ruled that the man’s family couldn’t bring a second lawsuit against Pepsi after their first case was thrown out of state court for missing the three-year statute of limitations by three days.

DiClerico cited the principle of “res judicata,” a sort of double jeopardy protection for civil cases, which holds that people can’t sue repeatedly over the same thing once their case has been decided.

The judge’s ruling leaves standing the family’s claim against DeMoulas Supermarkets, where the man bought the soda.

The family’s lawyer, Glenn Milner of Concord, could not be reached Friday.

Thomas Sullivan of Concord died July 26, 1999, two days after his tragic soda stunt, DiClerico’s ruling states.

Sullivan was copying a Pepsi One television commercial starring comedian Tom Green, according to the ruling and one of the lawyers in the case.

The 1999 ad – one of a series of spots Green filmed for Pepsi One – showed a University of Maryland student “shotgunning” a can of the diet cola, a method of guzzling beverages that involves punching an extra hole in the can to allow it to drain quicker. Pepsi later pulled the ad after school officials complained that it mocked the problems of alcohol abuse and binge drinking, according to articles by the university’s Capital News Service.

Sullivan used a pushpin to puncture a can of Pepsi, the ruling states.

“Tragically, in Thomas’s case, the pin he used to puncture the can was instantly propelled by its pressurized contents into his throat, lodging in his vocal cords,” DiClerico wrote.

The pin somehow trigged a seizure, the ruling states, and Sullivan fell into a coma and suffered swelling in the brain, which ultimately killed him.

Sullivan’s parents and Milner drafted a lawsuit against Pepsi Co., and associated bottling companies, dated July 25, 2002, and later filed in Merrimack County Superior Court, DiClerico’s ruling states.

However, none of the companies got notice of the suit until July 29, 2002 – three days after the state’s three-year statute of limitations for civil suits had expired. Three months later, a judge dismissed the case at Pepsi’s request, finding it was blocked by the statute of limitations.

The statute of limitations had changed that year, said Pepsi’s lawyer, Andrew Dunn of Manchester. Before Jan. 1, 2002, suits were accepted as long as the documents were prepared and signed within the three-year deadline. Since that time, cases must actually be either filed in court or served on the defense within the three-year deadline, Dunn said.

“There’s no grace period,” Dunn said. “It’s a strict rule.”

The Sullivans then filed a second case, naming Pepsi, the bottling companies and DeMoulas Supermarkets. That suit made the same allegations, but claimed a breach of warranty, rather than negligence. The statute of limitations for warranty claims is four years.

The second suit was transferred to federal court at Pepsi’s request, and on Thursday, DiClerico ruled that the Sullivans’ claims against Pepsi and the bottling company were essentially the same as in their first suit, and thus blocked by “res judicata.”

“The plaintiffs are correct that this results in the denial of their claims against the original defendants without any determination of whether they are responsible for Thomas’s death,” DiClerico wrote, continuing, “The court is sensitive to the fact that this outcome may seem unfair to the plaintiffs, particularly given the tragic circumstances alleged in this case.

“This decision, however, is dictated by the application of long-established rules designed to make the judicial process fair to all participants. The plaintiffs lost their opportunity to have their negligence, products liability, and consumer protection claims heard when those claims were not brought within the statute of limitations.

“Similarly, they lost their opportunity to have their warranty claims against the original defendants heard when the claims were omitted from the plaintiffs’ original lawsuit. As a result of these missteps, the plaintiffs have lost their chance at a day in court against these defendants,” the judge ruled.

Though lawyers never delved far into the evidence, Dunn said he believes the family’s suit would have failed on other legal grounds.

“I don’t think it would have gone very far if he hadn’t missed the statute of limitations,” Dunn said.

The Sullivans’ claims against DeMoulas remain pending, said the supermarket’s lawyer, John Curran of Bedford.

“It’s a very sad case,” Curran said.

Andrew Wolfe can be reached at 594-6410 or wolfea@telegraph-nh.com.