Kristine Kirk’s last moments were a harrowing collision of terror and confusion.Her husband, Richard, had burst through the door ranting about the end of the world. He began climbing in and out of the first-floor window, lying on the bedroom floor and asking for someone to kill him. Then he retrieved a pistol from his safe. “He’s taking the gun out, sir,” Kristine, 44, told the Denver 911 dispatcher. “I don’t know where to go.… Richard, please stop … please stop … please stop.”With her three young children cowering nearby, a single shot rang out, killing her instantly. Richard Kirk, 49, was arrested and charged with first-degree murder. But now another potential culprit has arisen.
Kirk’s children have filed the nation’s first wrongful-death lawsuit against a recreational marijuana company, claiming their father ate a pot-laced Karma Kandy Orange Ginger, a Tootsie-Roll-like chew, that triggered the April 14, 2014, shooting.
The maker of the candy, Gaia’s Garden LLC, and its distributor, Nutritional Elements Inc., both of Denver, stand accused of failing to warn customers that edibles could lead to paranoia, psychosis and hallucinations.
“The packaging and labeling for the potent candy contained no directions, instructions or recommendations respecting the product’s proper consumption or use,” said the lawsuit filed in May in Denver District Court.
“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.”
Even dog-treat makers, it says, include ingredient lists, recommended amounts and warnings.
The lawsuit is indicative of a maturing industry, experts said. Pot companies are now seen as big enough to sue. Earlier this year, the weed business was shaken by another first, a product liability suit aimed at a cannabis grower for using a pesticide that allegedly emitted hazardous chemicals when burned. The company denied the allegations.
“This is all a part of marijuana moving out of the shadows,” said Sam Kamin, a professor at the University of Denver who specializes in marijuana law and policy. “It’s growing pains. When you are a street drug dealer you don’t have to worry about product liability or paying taxes, but when you have a product brand and consumers it’s very different.”
He said the lawsuit is a long shot.
“There is a lot of harm caused by all kinds of products, and we don’t often hold the manufacturers responsible for unanticipated hazards,” he said. “There are so many incidents of people getting drunk and engaging in violent conduct, and we don’t hold the alcohol manufacturers responsible.”
Colorado’s edible pot market makes up about 45% of the state’s marijuana industry and has often outpaced efforts to regulate it. Eating marijuana produces a slow-acting, full-body buzz rather than the more familiar rush that comes from smoking it. And while the effects of smoking pot wear off in an hour or two, the high from edibles can last up to eight hours. Excessive doses can cause hallucinations and serious anxiety.
In 2014, a Wyoming college student ate a marijuana cookie containing six times the recommended dosage of THC, the active ingredient in pot, and jumped to his death from a hotel balcony in Denver. New York Times columnist Maureen Dowd ate a pot-laced candy bar that “looked so innocent like the Sky Bars I used to love as a kid.” Later that night, she was panting and curled up inside a hotel in Denver “convinced that I had died and no one was telling me.”
To help address the problem of overdoses, Colorado last year changed the way edibles are packaged. They must now be sold individually or in increments of 10 milligrams of THC or less to help consumers regulate how much they are using. The warning labels are more explicit, noting that edibles may require an hour or more to take effect.
The new lawsuit says that the candy Richard Kirk ate the night of the shooting contained more than 100 milligrams of THC. But toxicology reports showed that the concentration of THC in his blood was less than half the legal limit that qualifies as stoned driving.
Prosecutors contend that Kirk killed his wife as a result of increasing marital stress, not consuming marijuana. He initially pleaded not guilty but has changed that to not guilty by reason of insanity.
The suit was filed on behalf of the children, now 9, 13 and 15, by Kristine’s parents and sister, who are the legal guardians of the boys.
Sean McAllister, a Denver-based marijuana business attorney who co-wrote Amendment 64, which legalized recreational pot in Colorado, represents Gaia’s Garden and says the lawsuit has no merit.
“This company was complying with all state labeling requirements at the time that say marijuana can have adverse health effects, so the proposition that someone didn’t know marijuana could impair them is preposterous and baseless,” he said. “At the end of the day, we will prevail in this lawsuit because marijuana is not to blame for this woman’s death. Mr. Kirk is to blame for this woman’s death.”
He likened the case to skiing, getting hurt, and then suing the ski industry because the ski run was too hard.
“Our position is that marijuana doesn’t cause violence; the person with the mental illness caused the violence,” McAllister said. “His own mental illness and decisions he made are to blame.”
Tiffany Goldman, chief operating officer for Nutritional Elements, declined to comment.
The lawyers who filed the suit, David Olivas and Greg Gold, released a statement saying they hoped the lawsuit sparked meaningful change in the industry and “gets these kids a little justice for being victimized by the rush to profit at the expense of safety.”