Mom of Emerson Cole Sues School District Over Allergy Tragedy

in Food Allergy, Food Allergy News
Published: June 5, 2024
Mom of Emerson Cole Sues School District Over Allergy Tragedy
Emerson Cole

The mother and grandmother of a Texas girl who suffered a fatal allergic reaction while eating lunch at school are suing the school district. The lawsuit says the school staff neglected to administer epinephrine, as directed in her emergency action plan, when the dairy-allergic student experienced anaphylaxis.

Emerson Kate Cole was 10 years old when she died in hospital on January 19, 2023. Two days earlier, her lunchtime took a tragic turn at Lorenzo de Zavala Middle School in Amarillo, Texas. 

“This poor, sweet family has lost their daughter. It could have been easily avoided,” attorney Kevin Isern tells Allergic Living.

Isern, an attorney with Lovell, Isern & Farabough, LLP, filed the lawsuit on May 30, 2024 on behalf of Emerson’s mom Chelsea Kroger Acosta and grandmother Carole Kroger.

The lawsuit says the Amarillo Independent School District was negligent in failing to follow the steps outlined in Emerson’s federal 504 plan on file with the district. A 504 plan protects students with health conditions, including food allergies, against disability-based discrimination at school. The family’s lawsuit says the failure to follow the 504 plan also is a violation of the Americans with Disabilities Act (ADA).

In addition to dairy, Emerson was allergic to peanuts, tree nuts, eggs, soy, wheat, beef, according to medical documents filed with the legal complaint. She also had asthma.

Her 504 plan included procedures for school staff to follow during an allergic reaction. These included, “administer epinephrine, call emergency medical services and notify Emerson’s parents,” according to the lawsuit.

But school staff did not use epinephrine to treat Emerson, the lawsuit states. “We know if she had gotten epinephrine, she would be alive,” Isern says.

Emerson’s Fatal Allergic Reaction

On January 17, 2023, Emerson began to eat her lunch and started to have difficulty breathing after taking a bite. (Fire department records say the girl’s pizza contained dairy.)

The young student did what she was supposed to do when she realized she was experiencing an allergic reaction, Isern says. But the lawsuit says the school failed her by not following her action plan to use epinephrine and call 911. “Once she had a reaction, it was the school’s responsibility,” the attorney says.

Emerson headed directly to the school nurse’s office, but the nurse was not there.

According to the lawsuit, a school staff member called Chelsea Kroger Acosta for permission to give Emerson a Benadryl, which she then vomited. The staffer next tried treating the girl with an albuterol breathing treatment.

In the meantime, grandmother Carole Kroger, a retired firefighter, headed to the school, where staff said they were calling 911. But shortly after Kroger arrived, “Emerson was struggling with a breathing treatment and collapsed,” the lawsuit states. 

Kroger immediately began mouth-to-mouth CPR until the paramedics arrived. According to Isern, the emergency personnel were the first to administer epinephrine to the girl. Emerson was transported to the hospital, where she died. 

Dr. Marc Serota wrote an expert report in March 2024 based on his review of the medical records. He noted that despite the school knowing about Emerson’s allergies and having an epinephrine auto-injector on site, she was not treated with the lifesaving medication while suffering anaphylaxis. 

The Denver allergist writes that a prompt shot of epinephrine likely would have saved Emerson’s life. “If given early, while she was in the care of the middle school’s staff, it is my opinion she would more likely than not be a normal healthy child today.” 

Family’s Push for Change

Emerson’s parents are divorced and remarried. Isern tells Allergic Living that Kroger Acosta and her mother sought this legal action to ensure the district gains a better understanding about food allergies. 

Emerson Cole via Facebook

“The school district should pay for their mistakes,” Isern says. “This should have never happened.” The lawsuit seeks damages to be determined by a jury. 

The defendant Amarillo Independent School District told the Fort Worth Star-Telegram it could not comment on pending litigation.

Training to ensure that school district employees learn to recognize the symptoms of an allergic reaction, and how to treat anaphylaxis is essential, Isern says.

The family also wants there to be a nurse in every school building, every school day. The nurse at Emerson’s school shared duties between the middle and elementary school. The attorney says she was at the elementary school on the day of Emerson’s reaction.

He says the family does not blame the head nurse in their daughter’s death, as she was where she was scheduled to be. However, they do think she should have been called for assistance during their daughter’s reaction.

“They just want to make sure this never happens again,” Isern says. 

While they hope their lawsuit holds the school district in Amarillo accountable, Emerson’s family is still grieving a little girl who is remembered as “an absolute treasure” in her obituary.

They are “just devastated over this loss,” he says. “She was a sweet, funny little girl.”

Related Reading:
Food Allergies at School: Plans & Laws to Keep Kids Included
Allergy Mom Reflects on 3 Tragedies and Vulnerability
All About Epinephrine: Guide to a Lifesaving Drug