From NPR: "Disney wants a wrongful death lawsuit thrown out because the plaintiff had Disney+" in Those Public Entries

August 14, 2024, 12:19 PM ET

By Rachel Treisman

After a doctor suffered a fatal allergic reaction at a Disney World restaurant, Disney is trying to get her widower’s wrongful death lawsuit tossed by pointing to the fine print of a Disney+ trial he signed up for years earlier.

Jeffrey Piccolo is representing the estate of his late wife, Kanokporn Tangsuan, a doctor at New York’s N.Y.U. Langone Hospital who died of an allergic reaction while visiting the Florida resort in October.

The couple, along with Piccolo’s mom, went to dinner on the night of October 5th at Raglan Road Irish Pub, a restaurant located within a shopping and dining complex called Disney Springs.

Tangsuan was “highly allergic” to dairy and nuts, and they chose that particular restaurant in part because of its promises about accommodating patrons with food allergies, according to the lawsuit filed in a Florida circuit court.

The complaint details the family’s repeated conversations with their waiter about Tangsuan’s allergies. They allegedly raised the issue upfront, inquired about the safety of specific menu items, had the server confirm with the chef that they could be made allergen-free and asked for confirmation “several more times” after that.

“When the waiter returned with [Tangsuan’s] food, some of the items did not have allergen free flags in them and [Tangsuan] and [Piccolo] once again questioned the waiter who, once again, guaranteed the food being delivered to [Tangsuan] was allergen free,” the lawsuit reads.

The three of them ate, then went their separate ways: Piccolo brought the leftovers to their room, while his wife and mom headed for the stores. After about 45 minutes, Tangsuan “began having severe difficulty breathing and collapsed to the floor.”
Bimbo bread is displayed on a shelf at a market in Anaheim, Calif., in 2003. On Tuesday, U.S. federal food safety regulators warned Bimbo Bakeries USA - which includes brands such as Sara Lee, Oroweat, Thomas’, Entenmann’s and Ball Park buns and rolls - to stop using labels that say its products contain potentially dangerous allergens when they don’t.

She self-administered an epi-pen, and an observer called 911. The Piccolos, who had tried calling her multiple times, were eventually told she had been rushed to the hospital. They went to meet her, and, after a period of waiting, were told that she had died.

“The medical examiner’s investigation determined that [Tangsuan’s] cause of death was as a result of anaphylaxis due to elevated levels of dairy and nut in her system,” according to the lawsuit.

Piccolo filed suit in February against Raglan Road Irish Pub and Walt Disney Parks and Resorts U.S., Inc. (WDPR), accusing both companies of negligence for preparing Tangsuan’s food improperly and for failing to train their employees to guarantee food was made allergen free as requested.

He is seeking more than $50,000 in damages and trial by jury “on all issues so triable.”
Disney says the case should be handled out of court because Piccolo created a streaming account

Neither Disney Parks nor its lawyer has responded to NPR’s request for comment. They have, however, fought back in legal filings.

In late May, Disney’s lawyers filed a motion asking the circuit court to order Piccolo to arbitrate the case — with them and a neutral third party in private, as opposed to publicly in court — and to pause the legal proceedings in the meantime.

Arbitration is generally considered a more efficient and cost-effective method of resolving disputes than litigation, and Disney said explicitly in court documents that the “main benefit of arbitration is avoiding heavy litigation costs.”

The reason it says Piccolo must be compelled to arbitrate? A clause in the terms and conditions he signed off on when he created a Disney+ account for a month-long trial in 2019.

Those terms of use — which users must acknowledge in order to create an account — state that “any dispute between You and Us, Except for Small Claims, is subject to a class action waiver and must be resolved by individual binding arbitration.”

Disney says Piccolo agreed to similar language again when purchasing park tickets online in September 2023. Whether he actually read the fine print at any point, it adds, is “immaterial.”

“Piccolo ignores that he previously created a Disney account and agreed to arbitrate ‘all disputes’ against ‘The Walt Disney Company or its affiliates’ arising ‘in contract, tort, warranty, statute, regulation, or other legal or equitable basis,’” the motion reads, arguing the language is broad enough to cover Piccolo’s claims.
Piccolo’s lawyers say Disney’s claims are ‘outrageously unreasonable’

In early August, Piccolo’s lawyers filed a response slamming Disney’s rationale as “preposterous,” bordering “on the surreal” and “fatally flawed for numerous independent reasons.”

“There is simply no reading of the Disney+ Subscriber Agreement which would support the notion that Mr. Piccolo agreed to arbitrate claims arising from injuries sustained by his wife at a restaurant located on premises owned by a Disney theme park or resort which ultimately led to her death,” they wrote in the 123-page filing.

They confirmed he did create a Disney+ account on his PlayStation in 2019, but he believes he canceled the subscription during the trial because he hasn’t found any charges associated with it after that point.

Piccolo’s lawyers accused the company of trying to deprive Tangsuan’s estate of its right to a jury trial.
The bundle is offered at two price points, both of which include access to Disney +, Hulu and Max.
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“The notion that terms agreed to by a consumer when creating a Disney+ free trial account would forever bar that consumer’s right to a jury trial in any dispute with any Disney affiliate or subsidiary, is so outrageously unreasonable and unfair as to shock the judicial conscience, and this Court should not enforce such an agreement,” they wrote.

Piccolo’s lawyers also took issue with the process itself, saying Disney didn’t raise its alleged right to arbitration early enough in the proceedings.

They further note that Piccolo didn’t bring the lawsuit as an individual, but on behalf of Tangsuan’s estate, which did not sign off on any such terms. There was no such estate at the time, since Tangsuan was still alive.

“[Disney] does not explain how it is possible for Mr. Piccolo individually to bind an Estate that did not exist, which is not surprising as there is not a single authority in Florida that would support such an inane argument,” they said.

The arbitration provision, they added, could present a problem for more than just their own client.

“In effect, WDPR is explicitly seeking to bar its 150 million Disney+ subscribers from ever prosecuting a wrongful death case against it in front of a jury even if the case facts have nothing to with Disney+,” they wrote.

Both sides will get to make their case in front of a judge before long. The court has scheduled a hearing on Disney’s motion for October 2.

Editor’s Note: Disney+ is among NPR’s financial sponsors.

What else can I say? Except that no reasonable judge would ever give this argument the time of day.