September 2021

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President's Letter
By: Bryan Chance

Dear NRRDA Members - It’s September, summer is over in most of the country, kids are going back to school and the world continues to struggle with Covid.  A year ago many of us were wondering what our “new normal” would look like; unfortunately we still do not have the answer.  Thankfully most of the country is open, dining in restaurants can happen indoors and many retailers are having banner years.  While the virus hamstrings us, we are finding ways to move on and find our own sense of normalcy.  I hope this newsletter finds all of our members happy, healthy and ready for whatever the future hold for us all.

It has been a busy summer for NRRDA’s committees. We conducted our first members only CLE course back in July and are scheduling future courses. If you have a topic for these one-hour courses contact the NRRDA office at info@nrrda.org. In addition, Industry members got the chance to join on Zoom to discuss counsel and claims relationships. Do you have a topic you’d like to discuss with your peers? Please let us know!

Our Lighthouse Committee has been hard at work planning the conference, which will take place at the Hyatt Regency DFW Airport on October 19. We will hold a social event the evening before to allow members to meet in person for the first time since our annual conference in 2020. This will be an innovative conference addressing the myriad legal issues created by the growth of technology and artificial intelligence in the retail and restaurant industries as well as in claim handling. Registration is open and we recommend registering early, as spots are limited. We are disappointed to not host the conference in Los Angeles as originally planned but the complexities of planning two meetings during Covid were too much to overcome while ensuring the safety and health of members. You can register for the conference and reserve hotel rooms. We look forward to seeing as many of you as possible in just a couple of weeks.

The annual conference Committee has also been busy planning the 2022 Annual Conference at the Westin Riverwalk in San Antonio from March 2-4. We have received many submissions for topics and the committee will be reaching out to everyone. The conference title is Building our Foundation Stronger Together – an appropriate topic for these times, but also the foundation upon which NRRDA was built. By sharing our experience, challenges and knowledge, we help everyone grow and improve outcomes. Along the way, we also have a lot of fun. The hotel is located right on the Riverwalk and is within walking distance of the Alamo and dozens of great venues for connecting with friends. Registration will be open later this year. Registration is deeply discounted for industry members and many scholarships are available to offset registration and travel costs for industry attendees. While the program is still being developed you can be assured that this conference will be full of great information you cannot get anywhere else.

The Annual Conference also provides many opportunities for our industry members to host Panel Counsel Meetings. Space for these meetings is limited so we suggest signing up for a spot as soon as possible. If you are an industry member and are interested in learning more about hosting a Panel Counsel meeting at the Annual conference please contact us or read more here. Industry members who host panel counsel meetings receive free hotel rooms and other benefits that offset the cost of your travel. Between these benefits and scholarships, industry attendees who host panel counsel meetings should be able to attend at very little cost.

I am looking forward to seeing many of you next month and then again in March. Summer flew by and March is only just around the corner. 

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Industry Spotlight
LaToya Lee, Director of Claims at Raising Cane’s Chicken Fingers
Meet LaToya, by Robin Romano

I recently had the pleasure of chatting with NRRDA Industry Member, Latoya Lee. LaToya Lee is currently the Director of Claims at Raising Cane’s Chicken Fingers. Latoya became a member of the Raising Cane’s family about six years ago due to a picky four-year-old daughter who would only eat chicken fingers and toast. Raising Cane’s was around the corner and she frequented it regularly. Latoya noticed immediately that it was a very happy family- oriented place. They had good food that was not fast food, but quality food delivered in a quick manner. It did not feel like a fast-food restaurant. At the time, Latoya was an adjuster handling personal auto, general liability, and premises. She saw a claims manager position advertised on Indeed, applied, was hired, and has been working at Raising Cane’s since September, 2015. I asked LaToya if it felt different moving from an adjuster background to being on the employer’s side of things. She answered that a claim is a claim. Latoya said that the transition was easier than anticipated, but different because she was no longer in the weeds. It was refreshing for her to be dealing with people more. Also different was the fact that she now handled workers’ compensation claims on a national basis. I asked her what the most challenging thing was about becoming a national Director of Claims, and she said, “California.” She finds the state to be challenging and surprising. Raising Cane’s opened their first location in the same month and year that she started, and they have now saturated the market and have 42 restaurants in the state.

I also asked LaToya how she felt about handling workers’ compensation claims since this was different from her general liability background, and she said that she felt like she brought her strong negotiating skills with her when she started to handle workers’ compensation claims and has been really excited to work with crew members who had been injured to promote Raising Cane’s philosophy of taking care of their employees. LaToya said that the restaurant’s workers’ compensation claim counts are low because she and her team treat the injured workers as family. Raising Cane’s hold the injured worker’s hands throughout the claims process. Latoya has received some positive feedback from injured employees who have returned to work. She has received thanks for treating each person as an individual when they were scared, and for the commitment that Raising Cane’s has in providing excellent medical care, and eventually bringing people back to work.

The last year has been a challenge. During the pandemic, Latoya had to detach from her position as the Director of Claims, as she became one of the leaders for COVID support and crisis management. Raising Cane’s did an excellent job with fostering a safety-first method, whereby they had daily checks of all employees to make sure that COVID was kept at bay. Except for one store at the very beginning of the pandemic, all stores nationwide remained open.
Currently, Raising Cane’s has 558 stores in 32 states. They most recently opened a store in Utah and Wisconsin. The great majority of these stores are corporate-owned. 510 stores are corporate-owned with 48 franchises.

Latoya is a self-described “Caniac,” where she describes embracing Raising Cane’s philosophy of providing quality service, excellent food and a nurturing environment for their employees. LaToya attributes the positive atmosphere in the workplace to the founder, Todd Graves. Raising Cane’s began as a college dream--a restaurant that served high-quality chicken finger meals and nothing else. From this vision, Graves created a business plan which has resulted in an incredibly successful nationwide restaurant group. LaToya is based in Raising Cane’s corporate center in Plano, Texas and says that when Todd Graves comes on-site, which he does often, he is one of the guys. Graves rolls up his sleeves and you feel like he is a peer, rather than your boss.

LaToya is married with five children. LaToya has two girls from a prior marriage, now 11 and seven. Her husband has an 11-year-old boy from a prior marriage. Seven months ago, they had twins--a girl and a boy. LaToya feels that the twins have completed the circle. The older siblings are enthusiastic about their little brother and sister and pitch in to help out.

LaToya and her husband are also dog people. To complete their family, they have a four- year-old, 107-pound Rhodesian Ridgeback/Doberman Pinscher named Leo and a 30-pound Boston Terrier named Sam. LaToya and her husband are involved in animal charities both within Raising Cane’s and also personally.
LaToya and her family set aside Friday nights to shake off the week. During COVID, they would take walks around the block or have movie and popcorn night. Now that restrictions are lifting, they are going back to the movies. They recently took their family to the Gulf Shore for the first time. LaToya says that their first big trip will be to Disney. Her seven-year-old daughter is a Disney fan and identifies with the Disney princesses.
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LaToya has been a member of NRRDA for six years. Her first NRRDA trip was to Fort Lauderdale and it is her favorite so far. She went alone; but by the time that the conference ended, she had made many new friends. Latoya calls NRRDA her safe space where she can meet old friends, make new ones and connect with business partners. Like everyone, Latoya is really looking forward to the San Antonio annual conference in March of 2022. 

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Still time to register for the 2021 Lighthouse Seminar
October 19, 2021 at the Hyatt Regency DFW
Artificial Intelligence…the future is now

Click here for all the details.

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 2022 Annual Conference
"Building Our Foundation Stronger, Together"   
​March 2-4, 2022

NRRDA is excited to welcome back members to an IN PERSON 2022 Annual Conference, we have great things in store! We are finalizing the program which promises to include latest deep dive into many of the issues facing the retail and restaurant industry. In addition, we encourage Industry Members to sign up for Industry scholarships. Through the scholarships, NRRDA commits to supporting our Industry members who have limited budgets by providing complimentary registration and hotel reimbursement of travel and hotel costs up to $750...

Click here for all the details.

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Toxicology of Alcohol: The Role of Toxicologists in Social Host & Liquor Liability 

Commercial establishments where alcoholic beverages are served (e.g., bars, restaurants) and social hosts who serve alcohol in non-commercial settings may find themselves potentially liable for damage, injury, and/or death caused by alcohol-related accidents involving individuals they have served. Critical issues addressed by toxicologists often involve interpretation and/or estimation of blood alcohol concentration (BAC) levels, associated clinical effects, and degrees of intoxication.

This white paper outlines how toxicologists help resolve questions regarding liability in the alleged over-service of patrons or guests that has led to damage, injury, and/or death.

Clinical Effects of Alcohol
Alcohol consumption affects mental, cognitive, and other physical functions in a dose-related manner (e.g., more consumption is associated with greater effects). Toxicologists combine BACs with observed behavior to determine associated levels of impairment/intoxication.
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It is generally accepted by toxicologists that the degree of physical and mental impairment from alcohol correlates with BAC. In general, higher BACs produce increased impairment and greater degrees of intoxication. For example, the typical effects of a 0.02% (or 0.02 g/dL) BAC include some loss of judgment, decline in visual function, and divided attention.i At a 0.08% BAC, which is the current national limit for legally driving while intoxicated in the United States,ii typical effects include poor reaction time, balance, speech, vision, hearing, perception, and judgement.iii
However, people who are chronic alcohol drinkers can develop a tolerance to the effects of alcohol and learn to compensate for impairment. Tolerance to alcohol means that alcohol produces less of an effect, including on behavior, than it would for non-tolerant individuals. These individuals may not exhibit gross signs or symptoms of impairment even when their BAC is above the legal limit, even though they are actually impaired.iii A person who consumes alcohol does not appear “intoxicated” merely because he or she has consumed alcohol. Rather, intoxicated behavior occurs when the quantity of alcohol the person consumed has exceeded the individual’s tolerance for alcohol and produced mental, cognitive, or physical abnormalities. Whether an individual appears intoxicated depends on multiple factors other than alcohol consumption, including body weight, gender, race/ethnicity, the amount of food consumed before drinking, use of drugs or prescription medicines,iv and social behavioral changes learned during multiple drinking episodes.v

Interpretation of Alcohol Test Results
When interpreting alcohol test results to determine how much alcohol was consumed by an individual at an earlier time, the toxicologist considers the quality of the sample collected and analysis method used.
The “gold standard” tissue sample collection for measuring BAC is a peripheral venous sample of blood or serum. Alternatively, a breathalyzer test is a non-invasive method to obtain an immediate result of the individual’s breath alcohol concentration.v Interpretation of postmortem (i.e., collected after death) samples can be complex as discussed later in this paper. Forensic analyses for BAC analyze whole blood samples using gas chromatographic (GC) methods, which provide accurate and selective alcohol (i.e., ethanol) quantitation. In clinical settings (e.g., hospitals, emergency rooms), BAC is generally evaluated in serum or plasma samples using enzymatic methodologies with lesser accuracy but faster turnaround times (and lesser cost).vi Due to the differences in the methodologies and the types of biological samples analyzed, BACs quantitated in clinical settings using enzymatic methodologies are generally higher than the same samples quantitated using forensic GC analyses.vii Toxicologists guide interpretation of results considering the various factors from the different assays.

The appropriateness of using BAC from postmortem samples to reflect BAC levels prior to death (i.e., antemortem) can be complex due to after-death redistribution and the potential for decomposition-related alcohol production. Each assessment to determine postmortem sample suitability (i.e., correlation to the concentration at time of death) is unique. One approach is to compare the postmortem BAC to alcohol concentrations measured in other biological fluid/tissue samples that are inherently less influenced by redistribution and decomposition- related issues (e.g., vitreous humor fluid of the eye, urine); correlation between the different assessments increases confidence that the postmortem BAC accurately reflects the antemortem level.iv

An assessment for proper sample storage conditions may occur as improper storage may alter samples such that alcohol levels may no longer reflect an individual’s BAC at the time of collection. For example, it is well known that loss of alcohol from biological specimens may result from evaporation and/or oxidation. Alcohol is volatile and will evaporate from blood samples if the specimen containers are not properly sealed, resulting in loss of alcohol by evaporation. Loss of alcohol can also result from oxidation of alcohol (ethanol) to acetaldehyde in stored biological specimens. Alcohol concentrations in biological specimens may increase when sterility is lost, as alcohol (ethanol) production can occur as a byproduct of biological growth. Under sterile conditions, the concentration of alcohol in blood specimens would not be expected to increase.iv

Blood Alcohol Concentration Calculation
Toxicologists estimate BAC for individuals based on the known pharmacokinetics of alcohol (i.e., the time and dose-profile for how it absorbed, distributed, metabolized, and excreted) together with specific attributes of the individual and the drinking event under consideration. BAC assessments are generated to assess different parameters important for the evaluated issue, such as:

• Was the reported consumption profile and timing (e.g., what and when drinks were served and consumed) consistent with the measured BAC?
• How much alcohol would the individual have needed to consume to generate the measured BAC?
• Given the BAC was measured at a later timepoint, what was the individual’s BAC when leaving the serving establishment and/or when the accident occurred?
• When assessing the BAC at the time of the accident (and if appropriate), what was the contribution of alcohol intake from the service event under consideration compared to additional alcohol consumed by the individual (either before arriving and/or after leaving the serving establishment)?
  The tool toxicologists generally use for BAC extrapolations is the Widmark equation, named after the early 20th century seminal work conducted by the Swedish physician, E.M.P. Widmark.viii The equation uses a set of variables to mathematically describe alcohol pharmacokinetics in the human body. Specifically, the equation incorporates a uniform distribution of alcohol (a one-compartment model) and a constant elimination/metabolism rate per unit time (zero-order elimination kinetics), together with human specific factors (e.g., body weight and distribution volume) and time-specific variables (e.g., time elapsed since drinking began, time of accident, and/or time of BAC measurement). The resulting equation describes BAC as a function of an individual’s human factors together with the timing and amount of alcohol consumed.ix Accuracy of estimates associated with the Widmark equation depends on the reliability of input parameters. Uncertainties arise with the number of assumptions made regarding an individual’s body weight, the type and alcohol content of consumed beverages, and the individual’s alcohol elimination/metabolism rate.

Conclusion Social host liability issues generally hinge on the alleged over-service of guests subsequently involved in incidents resulting in damage, injury, and/or death. Key issues in these matters hinge on the amount of alcohol served by the establishment, the resulting BAC of the consuming individual, and the associated clinical effects and degree of intoxication.

As described in this paper, J.S. Held toxicologists can address these issues and more, including assessments of sample validity and methodology; extrapolations of BAC to earlier timepoints; assessments to determine whether the service profile (i.e., what and when) correspond with the measured BAC; and, if appropriate, assessments to determine the contribution of alcohol from the service event under consideration to the BAC at the time of the accident.

Acknowledgments
We thank our colleagues Clara Chan, MSc, DABT, Bruce Kelman, PhD, DABT, ATS, ERT, Nadia Moore, PhD, DABT, CIH, ERT, Annette Santamaria, PhD, MPH, DABT, and Allison Stock, PhD, MPH, MS for providing insights and expertise that greatly assisted in this research.
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References

1. U.S. Department of Transportation, National Highway Traffic Safety Administration. The ABCs of BAC: A guide to understanding blood alcohol concentration and alcohol impairment. NHTSA: Washington, D.C. Vol. DOT HS 809 844. July, 2016.
2. National Highway Traffic Safety Administration. Digest of impaired driving and selected beverage control laws, 30th edition. Report No.: DOT HS 812 394, Washington, D.C.: U.S. Department of Transportation, June, 2017.
3. Brick, J. and Carpenter, J.A. The identification of alcohol intoxication by police. Alcohol Clin Exp Res 25(6):850-855. 2001; Sullivan, J.B., Hauptman, M., et al. Lack of observable intoxication in humans with high plasma alcohol concentrations. J Forensic Sci 32(6):1660-1665. 1987; Urso, T., Gavaler, J.S., et al. Blood ethanol levels in sober alcohol users seen in an emergency room. Life Sci 28(9):1053-1056. 1981; Wells, J.K., Greene, M.A., et al. Drinking drivers missed at sobriety checkpoints. J Stud Alcohol 58(5):513-517. 1997.
4. Caplan, Y.H. and Goldberger, B.A. Garriott's Medicolegal Aspects of Alcohol. 6th ed. Tucson, AZ: Lawyers & Judges Pub. 2014.
5. Pizon, A.F., Becker, C.E., et al. The clinical significance of variations in ethanol toxicokinetics. J Med Toxicol 3(2):63-72. 2007.
6. Barceloux, D.G. (2012). Medical Toxicology of Drug Abuse: Synthesized Chemicals and Psychoactive Plants. John Wiley & Sons, Inc., Hoboken, NJ. p. 400-401.
7. Rainey, P.M. (1993). Relation between serum and whole-blood ethanol concentrations. Clin.Chem. 39(11 Pt 1): 2288-2292.
8. Gullberg, R.G. Estimating the Uncertainty Associated With Widmark's Equation as Commonly Applied in Forensic Toxicology. Forensic Sci Int 172(1):33-39. 2007.
9. Jones, A.W. Evidence-based survey of the elimination rates of ethanol from blood with applications in forensic casework. Forensic Sci Int 200(1-3):1-20. 2010. 

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Thank you to our 2021 Annual Sponsors!
We appreciate the generous support of our Member Sponsors

American Legal Records
Goodman McGuffey LLP
KPM Law
Mazanec, Raskin & Ryder
Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP
Perez Morris Hyde LLC
Rimkus Consulting Group
SEA, Ltd.
Swift Currie
Veritext