A Texas mother has withdrawn her federal lawsuit over the death of her 10-year-old daughter, Emerson Kate Cole. The girl suffered a fatal allergic reaction while eating her lunch at school.
Chelsea Kroger Acosta, Emerson’s mom, decided to drop the legal action against the Amarillo Independent School District in light of her mother’s struggles coping with her granddaughter’s death. Carole Kroger, the grandmother, had tried to save the child’s life with CPR during the severe allergic reaction, as firefighters were arriving.
Kroger Acosta “didn’t want to put her through the pain of reliving the details of Emerson’s death over and over again,” the family’s attorney Kevin Isern tells Allergic Living.
Emerson died on January 17, 2023, two days after her lunchtime anaphylactic reaction at Lorenzo de Zavala Middle School in Amarillo. The milk-allergic student experienced trouble breathing as soon as she took a bite of pizza, brought from her dad’s home. It turned out to contain dairy, according to fire department reports.
When Emerson went to the school nurse’s office for help, the nurse was not there and her emergency action plan was not followed, the lawsuit stated. Staff did not administer epinephrine or call 911 as she experienced anaphylaxis.
Isern, a partner with Lovell, Isern & Farabough, LLP, filed a lawsuit on May 30, 2024 on behalf of Kroger Acosta and Kroger, her mother. After initially filing in district court, the lawsuit was re-filed in Amarillo federal court in July 2024.
A judge granted the family’s motion to dismiss on December 5, 2025. There was no settlement in the case.
Isern says the district has not implemented protocols the lawsuit sought to ensure that employees are trained to recognize an allergic reaction, and to treat anaphylaxis.
The Amarillo Independent School District did not respond to Allergic Living’s request for comment.
Lawsuit Followed Fatal Reaction
The lawsuit’s claim that the school district’s failure to follow Emerson’s 504 plan was a violation of the Americans with Disabilities Act (ADA) placed it under federal jurisdiction.
The 504 plan protects students with health conditions, including food allergies, against disability-based discrimination at school. 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.
The middle school student’s federal 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.
The judge’s dismissal “without prejudice” means the family could re-file the case in the future. However Isern says that is unlikely.
A Grandmother’s Valiant Effort
On the day of Emerson’s reaction, the school nurse was at the elementary school, since she shared duties between the middle and elementary schools. According to Isern, the staff on duty at the middle school should have called the nurse for assistance during Emerson’s severe reaction.
But instead of administering epinephrine, a school staff member gave Emerson a Benadryl after calling her mom. The woman then treated the child with a breathing treatment, the lawsuit states.
Emerson’s grandmother, who is a retired firefighter, arrived at the school just as Emerson collapsed, the lawsuit says. She began mouth-to-mouth CPR, until the arrival of firefighters from a nearby station. They administered epinephrine. Emerson was transported to the hospital, but succumbed to the reaction.
The testimony from Kroger about what happened at the school during her granddaughter’s fatal reaction was key to the family’s lawsuit against the school district, Isern says. But Kroger continued to struggle with what happened to her granddaughter. The attorney says it became clear that putting her on the stand was not realistic.
“The family brought this lawsuit because they lost their beautiful young daughter,” Isern says. “But they really wanted to make a change so it didn’t happen to anyone else.”
Oklahoma Law in Emerson’s Memory
In Oklahoma, Emerson’s legacy could help to save other students’ lives through state legislation that addresses how school staff respond to severe allergic reactions. House Bill 2047, known as the Emerson Kate Cole Act, became law after it passed the state Senate and House unanimously in May 2025.
The law, which went into effect in late summer 2025, mandates that public school employees call 911 immediately when epinephrine is administered. It also requires annual training on food allergies, including recognizing anaphylaxis and how to properly use epinephrine.
Oklahoma state Representative Preston Stinson, introduced the bill in the state House; and state Senator Kelly Hines introduced it in the state Senate.
Stinson says training is imperative to ensure that school staff recognize the symptoms of a severe allergic reaction. “We don’t want to be in a situation where people are losing valuable seconds because they’re not entirely sure what they’re seeing,” he tells Allergic Living.
Stinson authored the legislation after learning about Emerson’s heartbreaking death and meeting her dad, Stevan Cole. (He and Kroger Acosta are divorced.) Cole, who lives in Amarillo met with Stinson after one of the lawmaker’s constituents shared Emerson’s story.
Hearing about Emerson’s death was “gut-wrenching,” says Stinson, who has a child with a nut allergy. “My hope is that when we have a situation where a kid gets exposed at school that people jump into action and do what they’re supposed to do,” he says.
Related Reading:
Mom of Emerson Cole Sues School District Over Allergy Tragedy
Allergy Mom Reflects on 3 Tragedies – and Vulnerability
