Fatal Food Allergy: Thompson-Cole v. AISD and Emerson’s Law

The lawsuit brought over the death of Emerson Kate Cole ended on December 5, 2025, when a federal judge granted her mother’s request to voluntarily dismiss the case against the Amarillo Independent School District without a settlement. The suit had alleged that school staff ignored the ten-year-old’s 504 allergy plan on January 17, 2023, giving her Benadryl instead of epinephrine after she ate dairy at lunch. Emerson died two days later. Although the case ended without a verdict, it did contribute to a new Oklahoma law bearing her name.¹²

What Happened to Emerson at School

Emerson was a student at Lorenzo de Zavala Middle School with documented severe allergies to dairy, wheat, soy, and eggs. On January 17, 2023, she ate a bite of pizza that came from a lunch bag she had grabbed by mistake from her father’s home. It contained dairy.³

She began having trouble breathing almost immediately and went to the nurse’s office. The nurse was not there. A nurse’s aide called her mother, who authorized Benadryl. Emerson vomited the medication and then collapsed.⁴

Her 504 plan on file with the district required staff to administer epinephrine, call 911, and notify her parents. According to the lawsuit, none of those steps happened in time. Staff gave Benadryl and a breathing treatment. Roughly 25 minutes passed before anyone called 911.¹³

Emerson’s grandmother, Carole Kroger, a retired fire captain, arrived and performed CPR until firefighters administered epinephrine. Emerson was taken to Northwest Texas Hospital, diagnosed with brain death on January 19, 2023, and pronounced dead that day. A medical expert cited in the complaint, Dr. Marc Serota, stated that Emerson more likely than not would have survived had epinephrine been given promptly.³⁴

The Claims and How the Case Moved

Emerson’s mother, Chelsea Kroger Acosta, and her grandmother filed suit against Amarillo ISD on May 30, 2024, in the 108th District Court of Potter County. The case was removed to the U.S. District Court for the Northern District of Texas, Amarillo Division, on June 28, 2024.³⁵

The federal complaint did not turn on ordinary negligence. It alleged intentional disability discrimination in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, arguing that the district refused to comply with Emerson’s 504 plan and failed to put policies in place to keep her safe.⁶

Amarillo ISD moved to dismiss in January 2025, arguing the claims sounded in negligence rather than intentional discrimination, and submitted expert reports from a school nursing specialist. On April 29, 2025, U.S. Magistrate Judge Lee Ann Reno denied the motion. She declined to consider the district’s expert reports, saying she would not convert the motion to dismiss into a motion for summary judgment, and found that the pleadings established “a plausible case that AISD engaged in intentional, discriminatory behavior in violation of the ADA and the Rehabilitation Act.”⁷⁸

Why the Family Dropped the Case

The case had cleared the biggest legal hurdle and had a trial date set. Even so, Kroger Acosta filed a motion to dismiss on December 2, 2025, stating she “no longer wish[es] to pursue the matter at this time.” The judge granted the dismissal three days later. No settlement was paid.²

The family’s attorney, Kevin Isern, said the decision was made to protect Carole Kroger. She had performed CPR on her granddaughter at the school and would have needed to testify about that day. Isern said Kroger Acosta “didn’t want to put her through the pain of reliving the details of Emerson’s death over and over again,” and that putting Kroger on the stand was “not realistic.” The dismissal was without prejudice, so the family could refile in theory, but Isern said that outcome is unlikely.¹

What Amarillo ISD Changed

At an April 2023 board meeting, the district approved a revised policy on medication storage and administration. Trained school personnel were authorized to administer unassigned epinephrine auto-injectors to anyone they reasonably believe is experiencing anaphylaxis, even without a prescription for that individual. The district also required unassigned EpiPens, inhalers, and Narcan to be stocked at all campuses, with the Narcan portion projected to cost $60,000.³

Isern said the district did not adopt the broader allergy and anaphylaxis training protocols the lawsuit had sought, and that the suit was intended to drive systemic change the district fell short of delivering.¹

Texas law already required school districts to have anaphylaxis policies and epinephrine administration procedures in place before Emerson died. The family’s allegation was not that the law was too thin, but that the existing protections were ignored.⁹

The Oklahoma Law Named for Emerson

The clearest legacy of the case came from another state. Oklahoma House Bill 2047, the Emerson Kate Cole Act, was introduced by state Representative Preston Stinson and state Senator Kelly Hines after Stinson met Emerson’s father, Stevan Cole. Stinson, who has a child with a nut allergy, said the bill was written in response to Emerson’s death.¹

It passed the Oklahoma House 92-0 on March 26, 2025, and the Senate 45-0 on May 6, 2025. It became law on May 20, 2025, without the governor’s signature, and took effect in the summer of 2025.¹⁰¹¹ The statute requires public school employees to call 911 as soon as epinephrine is administered, permits trained staff to give epinephrine to any student suspected of a severe allergic reaction even without a prior diagnosis, and requires annual staff training on anaphylaxis recognition, food allergies, and proper epinephrine use.

Stevan Cole was in the Oklahoma Senate on May 6, 2025, with his daughter Trinity for the final passage.¹² Of his daughter he said: “She’s going to keep going and going and she’s going to outlive everybody in this conversation and help more people than we can probably count.”¹³

1
Allergic Living. TX Mom Drops Lawsuit Over Emerson Cole Food Allergy Tragedy
2
MyHighPlains. Family Files Motion to Dismiss Lawsuit Against Amarillo ISD
3
Amarillo Tribune. Her Sparkle Will Never Be Forgotten: Family of Emerson Kate Cole Sues AISD Following Death
4
ABC 7 Amarillo. Family Sues Amarillo ISD After Girl Dies From Allergic Reaction
5
CourtListener. Acosta v. Amarillo Independent School District
6
Amarillo Tribune. Emerson Kate Cole’s Mother Refiles Federal Lawsuit Against AISD
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Amarillo Tribune. Student Death Cases Against AISD Can Move Forward, Trial Date Is Set
8
NewsChannel 10. Judge Denies AISD Request to Dismiss Lawsuits Over Student Deaths
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UT Southwestern Medical Center. Food Allergies and School Kids
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Oklahoma House of Representatives. Emerson Kate Cole Act Becomes Law
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Oklahoma Legislature. HB 2047 Bill Information
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Oklahoma Senate. Senate Passes Emerson Kate Cole Act to Improve School Allergy Protocols
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MyHighPlains. Emerson Kate Cole Act Passes in Oklahoma