Hopes of parents of children killed by the driver who inhaled dust remover to hold producers and distributors of Ultra Duster products accountable, grew dimmer after judge’s ruling.
By Lonce Lamonte - February 22, 2023
On Tuesday, February 21st 2023, a federal judge in Oakland, California, dismissed most of a claim, that manifested in a lawsuit against the maker of a canned dust removal product. Two men “huffed” the product just prior to causing an accident that killed three members of a Girl Scout troop. The accident occurred in 2018.
The victims’ families, the plaintiffs, sued the maker and the distributors of Ultra Duster. They claim the maker and distributors contributed to inhalant toxicity and have caused harm and death.
This is an odd claim for it seems akin to suing Jack Daniels or Jim Beam, or any other booze manufacturer, for getting a driver drunk and, thus, causing death through drunk driving. The driver is responsible for drinking the intoxicating booze, not the manufacturer of the booze.
Well, U.S. District Court Judge Jeffrey S. White ruled the dust removal product’s manufacturer, Daiho Sangyo, is off the hook for most of the claims.
Brian and Robin Kelley, among other plaintiffs, filed a 67-page complaint against Daiho Sangyo, AW Distributing, and Walmart in October 2020. Their nine-year-old child, J.K., a ten-year-old, and her mother were killed in Wisconsin in November 2018 when they were struck by a vehicle. That vehicle was driven by Colten Treu.
The plaintiffs state Tren and passenger John Stander inhaled the contents of a can of Ultra Duster while driving, and Treu drove off the highway, striking and killing the Kelleys’ daughter and the others. They claim Ultra Duster and products like it have caused many deaths through “huffing”, which means inhaling the product to get high.
This is just like imbibing alcoholic beverages. But, the plaintiffs went on in their complaint to state that inhalant abuse has been known and prevalent for decades in the United States and that the dust removers are cheap and available at retail locations. This means anyone can purchase the product for just a few dollars to get high.
The complaint went on with that the manufacturers, distributors, and sellers of these dust removers are fully aware of these predictable and foreseeable injuries and deaths. That these injuries and deaths were preventable but yet the manufacturers, distributors, and sellers of these dust removers have failed to deter or prevent people from inhaling their dust removers.
It could be said in the same way that booze manufacturers are fully aware of the predictable injuries and deaths that can result and do result from alcohol intoxication in excess either before or while driving a motor vehicle.
The plaintiffs seek to ban the sale of dusting sprays containing difluoroethane to minors or of selling more than one can to a customer within thirty days as well as a ban on companies making products containing difluoroethane without a physical mechanism to deter abuse.
While AW Distributing and the plaintiffs are in settlement talks, Daiho Sangyo filed a motion for summary judgment.
In the judge’s order on Daiho Sangyo’s motion, Judge White found plaintiffs’ liability claims are governed by Wisconsin law, which endorsed the principle that strict liability derived from the act of putting the defective product into the stream of commerce. He also found Daiho’s placing of a can into the stream of commerce amounts to “speculation” and without further evidence the plaintiffs cannot overcome Daiho’s request for judgment on that claim.
Judge White found in favor of Daiho Sangyo on the plaintiffs’ claim of public nuisance under California law. He found they did not show how the defendants created a public nuisance by selling Ultra Duster.
However, the judge denied Daiho Sangyo’s summary judgment request on claims of common law negligence and negligent infliction of emotional distress.
The next remote hearing is scheduled for March 31st 2023.
Lonce Lamonte, journalist, on adjustercom, lonce@adjustercom.com.
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