Marijuana

Killer Pot? An Analysis Of The Cannabis Wrongful Death Suit In Colorado

Though the plaintiffs' chances of prevailing are slim, this will certainly not be the last cannabis wrongful death lawsuit.

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Hilary Bricken

Hilary Bricken

It started in 2014 with Levy Thamba, who jumped to his death from a balcony after consuming “an edible marijuana product” in Colorado. Then it was Maureen Dowd, whose experience was a little damaging PR for Colorado’s cannabis industry, but not all that harmful once people realized that she had disregarded her edible’s safety instructions. In 2015, there was the LivWell class-action lawsuit (which was dismissed in February 2016), in which two plaintiffs alleged breach of warranty arising in Colorado from cannabis that contained Eagle 20. And in 2016, there has already been a slew of product recalls in Denver for safety issues and illegal pesticides.

Now we get the first wrongful death suit, filed against two Denver-based marijuana companies for a death caused by a man shooting his wife after consuming cannabis. In 2014, after eating a Karma Kandy Orange Ginger (a tootsie-roll type candy infused with THC), Richard Kirk shot and killed his wife, Kristine Kirk. At the time of the shooting, Richard Kirk was allegedly hallucinating and talking about the end of the world. Now, the Kirks’ three children have filed a wrongful death suit against the candy maker, Gaia’s Garden, LLC, and the dispensary, Nutritional Elements, Inc., from which Richard Kirk purchased the candy on the night of the shooting. The Kirks allege the defendant companies failed “to warn that edibles could lead to paranoia, psychosis, and hallucinations” and “negligently, recklessly, and purposefully concealed vital dosage and labeling information from their actual and prospective purchasers . . . to make a profit.” Kirk was charged with first-degree murder and initially pleaded guilty, though he has now switched his plea to not guilty by reason of insanity, claiming the cannabis rendered him insane at the time of the murder.

The elements of a wrongful death civil claim are typically as follows:

  • The death of a human;
  • Causation (actual and proximate);
  • The survival of family members who are suffering monetary injury as a result of the death, and;
  • The appointment of a personal representative for the decedent’s estate.

Right off the bat, the biggest issue for plaintiffs will likely be causation. Plaintiffs will probably have to show some combination of the following: 1) the labels and packaging on the edible failed to adequately warn of side effects like psychosis; 2) defendants knew or should have known that the allegedly inadequate labels would lead to Kirk killing his wife, or knew or should have known not to sell the edible specifically to Kirk; and 3) adequate warning labels would have prevented Kirk from killing his wife and/or that not selling the edible to Kirk would have prevented Kirk from killing his wife.

I see the chances of plaintiffs prevailing in their lawsuit against the cannabis companies as slim at best. Nonetheless, the mere filing of this lawsuit will likely have ramifications for the cannabis industry and for state and local lawmakers and regulators when it comes to marijuana-infused products. Though we of course do not yet know how this Colorado case will turn out, its having been filed at all demonstrates how with legalization and normalization comes legal accountability, and this will certainly not be the last cannabis wrongful death lawsuit.

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Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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