OAKLAND, Calif. (CN) — A federal judge on Tuesday threw out the bulk of a lawsuit against the maker of a canned dust-removal product that two men "huffed" just before causing a 2018 fatal accident, killing three members of a Girl Scout troop.
The victims' families sued the maker and distributors of Ultra Duster, claiming it contributed to inhalant toxicity and caused harm and death to children and others. In a mixed-bag ruling Tuesday, however, U.S. District Judge Jeffrey White let the product's manufacturer, Daiho Sangyo, off the hook for most of the claims.
Plaintiffs Brian and Robin Kelley, among others, filed a 67-page complaint against Daiho Sangyo, AW Distributing and Walmart in October 2020. Their child J.K., 9, a 10-year-old and her mother were killed in Wisconsin in November 2018 when when they were struck by a vehicle driven by Colten Treu.
The plaintiffs say Treu and passenger, John Stender, had purchased a can of Ultra Duster at a Walmart on the day of the crash and inhaled the contents while driving. Treu drove off the highway and struck and killed Kelley’s daughter and the others. They claim Ultra Duster and products like it have caused many deaths through huffing — inhaling the product to get high.
“Inhalant abuse has been known and prevalent in the United States for decades,” the plaintiffs say in their complaint. “These dust removers are cheap and available at retail locations throughout the United States, meaning anyone with a few dollars can purchase the product to get high. There have been numerous public reports of injuries and deaths to innocent bystanders caused by people driving while high on dust removers stretching back for at least 20 years. The manufacturers, distributors, and sellers of these dust removers are fully aware of these predictable and foreseeable injuries and deaths. Every one of these injuries and deaths was preventable, yet the manufacturers, distributors, and sellers of these dust removers — like defendants — have failed to deter or prevent people from inhaling their dust removers.”
The plaintiffs seek a ban on the sale of dusting sprays containing difluoroethane to minors, or of selling more than one can to a customer within 30 days, as well as a ban on companies making products containing difluoroethane without a physical mechanism or chemical composition to deter inhalant abuse.
While AW and the plaintiffs are in settlement talks, Daiho Sangyo moved for summary judgment. The plaintiffs opposed this, and AW filed a cross-claim against Daiho seeking indemnification and contribution.
In his 14-page order on Daiho Sangyo's motion, Judge White found plaintiffs’ liability claims are governed by Wisconsin law, which have “endorsed the principle that strict liability derives from the act of putting the defective product into the stream of commerce.” But he also found Daiho’s involvement in placing 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.
White similarly found for Daiho Sangyo on the plaintiffs' claim of public nuisance under California law, finding they did not show how the defendants created a public nuisance by selling Ultra Duster.
But White denied the company's summary judgment on claims of common law negligence claim and negligent infliction of emotional distress. “Unrefuted evidence before the court is that Ultra Duster’s design remained unchanged between July and September 2018," he said, "and Daiho’s arguments that it cannot be liable because the AW defendants had the opportunity to change the formulation of Ultra Duster are issues of fact relating to causation.”
White denied AW’s cross-claim against Daiho, finding a settlement between the two companies occurred after the accident, and AW hadn't shown the agreement or release is ambiguous in any way.
Attorneys for the defendants did not respond to a request for comment. An attorney for the plaintiffs, Philip Sieff, said via email, "Overall the plaintiffs are pleased with the court’s order and very much look forward to presenting this case to a jury where we are confident we will prevail."
The next remote court hearing is scheduled for March 31.
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