In April, 2014, Kristine Kirk, 44, was at home with her three children when her husband, 47-year-old Richard Kirk, arrived “delirious” and “paranoid.”
He was “totally hallucinating,” Kristine said in a 911 call, climbing in and out of a first-story window, and asking for someone to kill him. Kirk allegedly took a gun out of a safe and shot and killed his wife. Moments later, as two of the couple’s children escaped through a window, Kirk walked into his seven-year-old son’s room and asked the child to kill him so that “dad and mom could be together with God.”
The son didn’t go through with it, and police arrived shortly afterward. They discovered that, in the hours leading up to the incident, Kirk had eaten part of a marijuana candy bought legally from a pot dispensary.
Kirk was charged with first-degree murder, and he initially pleaded guilty in the case. He has since changed that plea to not guilty by reason of insanity.
The couple’s children, helped by their court-appointed guardians, have filed a wrongful death suit against the shop, Nutritional Elements Inc., and against the company that made the candy, Gaia’s Garden. Their claim argues that the manufacturer and retailer are responsible for Kirk’s “psychotic” state of mind.
The complexity of a wrongful death suit means it could extend well into 2017. However, the case has wide ramifications. When are manufacturers or retailers of pot liable for wrongdoing by their customers? What warnings should they supply when a customer is buying a psychoactive drug? What complications arise when federal law still deems illegal a drug that a state has chosen to legalize?
Observers wonder whether the industry could be a new frontier for trial attorneys. Experts suggest it’s possible, though they also say plaintiffs in the Kirk case have some work ahead of them.
Liability and causation
Marijuana candy can be bought legally from a pot dispensary. (AP Photo)
“What the plaintiffs have to prove is that there was something wrongful or careless or negligent, or that there was some bad ingredient in the substance that was sold, that the seller of the marijuana had done something wrong,” said Paul Rothstein, a law professor at Georgetown University who specializes in wrongful death cases.
That sort of evidence would allow plaintiffs to prove causation, or the notion that the product itself led to the death.
The “edible” item Kirk purchased but only partially consumed, a “Karma Kandy Orange Ginger,” contained about 100 milligrams of THC, the principal psychoactive chemical in marijuana. That is legal in Colorado in the same way an intoxicant like alcohol is, says Rothstein.
But case law has established the standard that needs to be met to prove wrongdoing by a seller of booze, but it hasn’t with pot. It hinges on the need to demonstrate that the defendants were in some way responsible for Kirk’s arguably “improper” consumption of their product.
A common example with alcohol is of a bar serving drinks to a customer who is clearly already drunk or going to do something risky, such as driving. With pot, the metric for liability isn’t clear.
“It’s not necessarily the case that law will treat marijuana the same as alcohol. Alcohol has been socially acceptable for generations, so case law has made a determination that merely selling it is not enough for civil or criminal liability. There needs to be something additionally negligent or wrong,” Rothstein said.
“One good claim of negligence could well be that they failed to warn and direct how to use, if the seller or maker knew or should have known that this product could cause untoward results if used too much or improperly.”
Simply put, Rothstein said, the Kirk children will need to show that the store should have known not to sell its product to Kirk, or that his wife’s death could have been prevented had the store or manufacturer exercised better judgment.
Reckless, purposeful concealment?
Richard Kirk, who allegedly shot and killed his wife, was charged with first-degree murder. (AP Photo)
Attorneys for the plaintiffs, David Olivas and Greg Gold, refused to comment. But a May 9 filing in the case describes the liability they argue is held by Gaia and Nutritional Elements.
“The packaging and labeling further failed to apprise the consumer of the product’s known side-effects, which according to medical literature and hospital emergency room records include hallucinations, paranoia and psychosis,” the filing states, noting that in a 911 call shortly before her death, Kristine reported seeing those symptoms in her husband.
Additional complaints about the alleged lack of labeling included a failure “to indicate what the consumer should do in the event of an overdose, accidental or purposeful,” and failure “to advise the consumer that the drug, due to the mechanism in which the product is digested — the stomach as opposed to the lungs — will have an effect that is substantially different from the ‘high’ they may have experienced by smoking marijuana.
“The Edible Producers negligently, recklessly and purposefully concealed vital dosage and labeling information from their actual and prospective purchasers, including Kirk, in order to make a profit,” the filing pointedly summarized, adding that the product was equivalent to “an over-the-counter medication and intoxicant.”
While some medical experts agree those claims are valid, the key legal point will be whether the death could have been prevented if the drug in question had better labeling.
“The ingestion of the product has to have ‘proximately caused’ the shooting in order for there to be liability,” Rothstein said, clarifying that if there were extraneous factors including, for instance, pre-existing medication or a dispute between the couple, “the plaintiffs may have trouble establishing that the product was a proximate cause of the shooting.”
“The hardest part of the lawsuit you will probably be proving that the ingestion of the drug caused the murder, that Kirk would not have murdered his spouse if he hadn’t taken the drug,” Rothstein said.
Intoxicants leading to death
The Kirk family files a lawsuit against the store that sold drug-infused candy. (AP Photo)
Experts express some skepticism about whether that causal effect can be proven. George Brauchler, the prosecutor in Colorado’s 18th judicial district, argues that while crime has increased as a result of legalized marijuana, it isn’t necessarily for obvious reasons.
“I think that rising crime is a function of the fact that, one, the black market has not gone away,” Brauchler said. “I think it’s the opposite, because there’s more potent and a greater quantity of marijuana on the street than ever before. I also think that when you have an industry that is by design entirely cash based, you are going to attract a criminal and violent element to it.”
However, Brauchler added, “In my 20-plus years in the criminal justice system, I cannot tell you that I’ve had a case of murder where the person’s state of mind was impacted solely by marijuana. It doesn’t mean those cases aren’t out there and it isn’t possible. I’m just telling you that personally, I haven’t had that situation come up … I think it’s more likely that when you see drug-induced crime, it’s likely to be different substances.”
Eric Sterling, who served for 10 years as counsel to the House Judiciary Committee and now as executive director for the Washington, D.C.-based Criminal Justice Policy Foundation, expressed a similar opinion.
“I think what may be missing in this case is causality,” Sterling said. “The real threshold is the question of causality. If marijuana in the blood was not very high … labeling is really irrelevant, because you first really need to show that there is enough THC in the blood of the killer to affect his behavior in a way that is going to predictably, foreseeably produce this kind of behavior.
“If there is liability because the labeling doesn’t carry information about dosage, what should it say? That if you consume a given number of doses, you’re going to become homicidal? That doesn’t make sense,” he said. “What they think the labeling ought to be, would it have deterred the suspect killer from consuming as much as he did? Would it have prevented the tragedy from happening?”
Jurisdictional issues
Democratic Rep. Dan Pabon suggested that state laws will govern the issue in a manner consistent with precedent set in other wrongful death cases. (AP Photo)
Potentially, the most confounding element of the case is the fact that Colorado law permits the purchase of marijuana, even with a lack of labeling. Federal law does not.
“Since there’s federal law against it, and it’s a state where marijuana is permitted, it could be brought in either federal or state court,” Rothstein explained.
“There is an unprecedented part of this lawsuit: State law normally applies in wrongful death lawsuits, meaning that the lawsuit would technically be under the law of the state, even if it were in federal court, but it is uncertain whether federal law might play some role in this peculiar kind of case.”
Democratic Rep. Dan Pabon, speaker pro tempore of the Colorado House, suggested that state laws will govern the issue in a manner consistent with precedent set in other wrongful death cases.
“The plaintiffs will have to prove that the actual ingestion of the marijuana caused the death,” said Pabon, who is also a practicing attorney in Denver. “There’s proximate cause and there’s actual cause. Plaintiffs have to prove both.”
Christopher Decker, a criminal defense attorney and former head of Colorado’s Criminal Defense Bar Association, surmised that plaintiffs could point to federal law as a factor loosely related to the claim of negligence, but that it would not govern the outcome of the case.
“The plaintiff could maybe say this isn’t just weed, this is a Schedule 1 controlled substance … like cocaine or other hard drugs,” Decker said. “So the claim may be in part that even though it’s legal here, the federal government considers it dangerous.
The jury can’t apply federal law, but it would go to the manufacturer’s knowledge of whether it was dangerous,” he added. “They might say the manufacturer unleashed it on the streets of Colorado, even knowing the Food and Drug Administration considered it dangerous. They wouldn’t be applying federal law, but it would go to knowledge that relates to federal law.”
Legislative implications
A law professor who specializes in wrongful death cases suggested the uncertainty surrounding the case could play a role in how marijuana products are sold in the future. (AP Photo)
Rothstein suggested the uncertainty surrounding the case could play a role in how marijuana products are sold in the future. “It has the potential to radically change how marijuana products are marketed by establishing an obligation of sellers and manufacturers to diligently discover and warn of potential side effects, even if rare, and to carefully instruct purchasers on proper use,” he said.
Asked whether clear rules governing the marijuana industry’s liability standards should be codified into law, Pabon voiced skepticism, suggesting that more laws could pose a burden to the judicial process.
“Should the state legislature define when that causation occurs? The answer, I think, is no,” Pabon said. “There can be an infinite number of factors that a plaintiff and a defense lawyer might want to rely upon to demonstrate either causation or non-causation, and I don’t think that we would want to get in the business of limiting the types of evidence that would be allowed to be introduced for that purpose.
“The fact is that these issues have largely been settled by courts over decades of case law,” he added. “Unless there’s a good reason to fundamentally shift from what those cases say about wrongful death actions, we should give credence to those cases and those judges’ decisions.”
Experts say an argument exists to be made for parties on either side of the case. Court records indicate that Kirk had been in conflict with his wife for more than a month leading up to the incident, a fact diminishing the culpability of a third party.
At the same time, whether Kirk would have experienced a psychotic break on his own is unclear, as are the standards by which the marijuana industry should abide when it comes to retailing guidelines.
At least one element of the case unmentioned so far should be less difficult to unravel, Rothstein said. “The children also have to establish not only the financial contributions that the killed spouse would have made to the family, but also the monetary value of the love and care and affection that they have lost,” he said, “which is probably fairly easy.”
New horizon for trial lawyers
“I think it will be,” Rothstein said, responding to whether the marijuana industry represented a fertile new hunting ground for trial attorneys. “Not only will there be situations where lack of labeling or instructions are alleged, but other types of cases as well.
“For example, cases involving auto collisions where it is alleged a driver took the wheel having very recently used marijuana,” he added. “Or cases where someone entrusted an employee with a dangerous task or instrumentality, for example, involving a car or security equipment like a gun, knowing the employee might be or come under the influence of marijuana.
“Other cases come to mind as well: train or airline catastrophes alleged to be caused by marijuana use; selling marijuana to minors who then get themselves or others injured; giving marijuana to people already obviously too high on that or other drugs; not seeking or providing proper help for someone under your care who is in trouble for a dangerous mix of drugs including marijuana; etc.”
Trial lawyers might be about to start their engines.
