News Lawsuit Alleges Marijuana Candy Caused Murder

  1. Three children whose mother was allegedly murdered by their father have filed a wrongful death lawsuit against a recreational marijuana edibles company, the store that sold the product and the defendant.

    In 2014, Richard Kirk allegedly purchased recreational marijuana candy from a local Denver store. Hours later his wife, Kristine, called 911 in fear of her husband who was ranting in their home about the end of the world before a gunshot ended her life. Kirk is currently facing first degree murder charges.

    Recreational Marijuana Found and Presence of THC


    marijuana-plant-bud.jpg
    A partially eaten marijuana candy was found. The approximate amount of THC (Tetrahydrocannabinol) in the product ("Karma Kandy Orange Ginger") - the primary psychoactive ingredient in marijuana - is 100 milligrams or ten 10 milligram servings. The product appears to be one piece of candy as opposed to ten individual pieces consisting of 10 mg THC each.

    Blood tests taken from Kirk following the shooting indicated a presence of only 2.3 nanograms of THC per milliliter. There was no presence of alcohol or drugs detected in his system. According to Colorado House Bill 11-1261 which amends Colorado Revised Statutes Section 2. 42-4-1301 (2) (a.3), the Colorado state legal limit for DUI charges (Driving Under the Influence) is 5 nanograms or less of delta 9-tetrahydrocannabinol per milliliter in whole blood. As a matter of reference and recent study, opponents of the legal limit argue that even the 5 nanogram threshold represents insufficiently reliable evidence of impairment.

    The Denver Post reported that attorneys for Kirk appear to be preparing a defense that the defendant lacked the mental capacity to commit murder. Experts are expected to testify that even the small amount of marijuana in Kirk's blood was sufficient to contribute to or trigger a psychotic outbreak. Prosecutors plan to charge Kirk with intentional murder, which resulted from financial and emotional strains of marriage.

    Family Accuses Marijuana Manufacturer of Failure to Warn


    The lawsuit, brought by the victim's parents on behalf of their grandchildren, alleges that manufacturer Gaia’s Garden LLC failed to provide an adequate warning to recreational marijuana consumers about the dangers overdosing. The effects of marijuana ingestion can take a longer period of time than smoking. As a result, novice users would be lulled into a "false sense of security" when eating marijuana edibles produces what seems to be no significant initial impact. Subsequent to this case and another involving a student who leapt to his death after eating a marijuana infused cookie, Colorado State passed new packaging rules.

    The civil lawsuit also appears somewhat inconsistent with the prosecution's murder case. It alleges that Kirk had no intent to harm his wife but had negligently consumed the marijuana candy to the point where he had become voluntarily impaired and unable to control his actions. This case also raises several important legal questions:
    • Liability shifting from the user to the manufacturer and seller of marijuana: To what extent does the manufacturer and seller of marijuana owe a duty to a consumer with regard to usage and warnings?
    • Marijuana can be inherently dangerous: If this defense is successful, should the legal limits for driving under the influence of marijuana be changed to even more stringent limits? While new studies report that current THC tests are inherently unreliable for impairment, if even small levels of THC can cause an adverse reaction, is there any level which can be assumed as safe and lawful? Should there be a required test for tolerance levels prior to use of marijuana?
    This lawsuit also indicates that the marijuana business is merely in its infancy and only beginning to mature. Other lawsuits are likely to follow and shape the nature of the industry.
    Legal Practice:
    Crime - Drugs & Narcotics
    Jurisdiction:
    • Colorado

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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