Pubdate: Wed, 11 May 2016
Source: Denver Post (CO)
Copyright: 2016 The Denver Post Corp
Author: Jordan Steffen


The three sons of a woman shot to death in 2014 have filed what 
appears to be the country's first wrongful-death lawsuit against the 
recreational marijuana industry.

The lawsuit claims that the company that made the marijuana edible 
and the store that sold the candy to Richard Kirk recklessly and 
purposefully failed to warn him about the bite-sized candy's potency 
and possible side effects - including hallucinations and other 
psychotic behaviors.

Hours after Kirk purchased the marijuana candy April 14, 2014, 
Kristine Kirk, 44, called 911 terrified of her husband, who was 
ranting about the end of the world and jumping in and out of windows. 
All three of the couple's young sons heard the gunshot that killed 
their mother. Their youngest son, who was 7 at the time, watched his 
mother die, according to an amended complaint filed Monday night.

Kirk now faces one count of first-degree murder in his wife's death.

The lawsuit was filed on behalf of the children - now ages 9, 13, and 
15 - by Kristine's parents, Wayne and Marti Kohnke, and her sister, 
Tamara Heman. The trio became the boys' legal guardians after 
Kristine Kirk's death.

"While nothing can bring their parents back, this lawsuit will seek 
justice and change in an edible industry that is growing so fast it 
failed these young kids," the family's attorneys, Greg Gold and David 
Olivas, said in a statement. "Edibles themselves are not the evil, it 
is the failure to warn, the failure to properly dose, the failure to 
tell the consumer how to safely use edibles, that is the evil."

A partially eaten "Karma Kandy Orange Ginger" candy was found at 
Kirk's Observatory Park home after the shooting. The candy - which 
was roughly the size of a Tootsie Roll - contained 10 servings of 
THC, with each serving containing about 10 milligrams.

THC is the major psychoactive ingredient in marijuana.

Gaia's Garden LLC, the company that manufactured the chew, and 
Nutritional Elements Inc., the store where Kirk bought the candy, are 
named as defendants in the complaint. According to the lawsuit, the 
companies failed to include warnings about "known side effects" on 
the candy's packages.

Those possible side effects include hallucinations, paranoia and psychosis.

The state has since changed the requirements for labels on edibles.

The two companies "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 lawsuit says.

Sean McAllister, who represents Gaia's Garden, said the wholesale 
company has always been in compliance with state requirements for 
labeling and packaging its products.

"We will vigorously defend ourselves against this attempt to shift 
responsibility away from the murderer to a substance that is less 
harmful than alcohol and does not lead to violence," McAllister said.

Tiffany Goldman, chief operating officer for Nutritional Elements, 
declined to comment Tuesday.

During the first year of legal recreational marijuana sales, 
marijuana-infused edibles accounted for roughly 45 percent of the 
legal pot marketplace. Edibles also were involved in some of the most 
high-profile marijuana incidents in 2014.

About three months after legal recreational sales began - on Jan. 1, 
2014 - a Wyoming college student became agitated after eating a 
marijuana-infused cookie and leapt to his death from a Denver hotel balcony.

Kristine Kirk was killed about one month later.

Novice users were given a "false sense of security" when purchasing 
edibles without a warning about overdosing, according to the lawsuit. 
The businesses failed to inform Kirk and other customers that, 
compared with smoking pot, the effects of edibles often take longer 
to take hold, according to the lawsuit.

Without that information, customers "can readily be misled into 
believing they need to eat more of the product to feel its effects 
without realizing the zone of danger they are entering that could 
result in catastrophic effects."

Failing to include dosage and consumption instructions was 
"dangerous, reckless and outrageous" and below the standards required 
for household products such as chewing gum, toothpaste and body 
lotion, the lawsuit claims.

"The manufacturers of dog treats have shown more concern for the 
health and well-being of dogs that consume their product than the 
Edible Producers have shown for the people in our community that 
consume theirs," the lawsuit said.

In January 2015, new regulations went into effect requiring edibles 
sold recreationally to be wrapped individually or demarked in 
increments of 10 or fewer milligrams of activated THC.

While the new regulations will have little to do with claims in the 
lawsuit, the likelihood of winning is still low, said Sam Kamin, 
Vicente Sederberg professor of marijuana law and policy at the 
University of Denver.

"We don't hold liquor stores responsible, and we don't hold vodka 
producers responsible for drunk drivers," Kamin said.

Still, the mere filing of such a lawsuit marks a shift within the 
marijuana industry itself and may open the door for future claims.

"Filing this lawsuit, to a certain extent, is a sign that marijuana 
is becoming a bigger business," Kamin said. "You can't file a lawsuit 
against a drug dealer. But what these suits are showing is that 
marijuana is becoming an industry that they want to hold accountable 
if they think it's caused a harm."

The lawsuit also names Kirk as a defendant. Attorneys allege he acted 
negligently when he voluntarily became intoxicated to a point where 
he could no longer control his actions. But Kirk had no intention of 
hurting his wife and no way of knowing that consuming the pot could 
cause the reaction it did, the lawsuit said.

The now 49-year-old changed his plea from not guilty to not guilty by 
reason of insanity in September.

He has since been ordered to have an evaluation at the Colorado 
Mental Health Institute at Pueblo. It is unclear if that evaluation 
has been completed.

The lawsuit's claims contradict Denver prosecutors, who have argued 
Kirk acted intentionally. They claim the financial and emotional 
strain of his marriage contributed to a conscious decision to kill his wife.

Blood tests taken after the shooting revealed Kirk had a low level of 
THC in his system. No alcohol or other drugs - illegal or 
prescription - were detected.

A toxicology report showed Kirk had 2.3 nanograms of THC per 
milliliter of blood the night of the shooting. The state's legal 
limit for stoned driving is 5 nanograms of THC per milliliter.

Reports from defense witnesses, including a psychiatrist, 
psychologist, toxicologist and an expert on the effects of marijuana 
show that defense attorneys are poised to argue that Kirk did not 
have the mental capacity to plan or kill his wife. When considered 
together, the reports could suggest the THC in Kirk's system may have 
contributed to or triggered a psychotic break.

Even if Kirk consumed only part of the edible, "the adverse effects 
could have been severe. It was negligent and reckless not to warn our 
community of these dangers," according to the lawsuit.

As a result of their mother's death, Kristine Kirk's sons have 
suffered non-economic damages, such as emotional suffering. The 
lawsuit also claims they have suffered economic damages.
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