For the First Time, Kansas Federal Court Bars Product Liability Claims Based on Plaintiff's Illegal Conduct

Introduction

In Messerli v. Aw Distrib., Inc., a Kansas federal district court applied Kansas’s illegality defense to bar product liability claims where the plaintiff alleged the decedent violated Kansas law by inhaling toxic vapors from computer duster canisters. Kansas courts have applied the illegality defense to bar other tort claims, but Messerli marks the first instance a Kansas federal court applied the illegality defense to bar product liability claims. Although Missouri has yet to apply an “illegality defense” to bar similar product liability claims, it could follow numerous other states that are trending in that direction.

Factual Background

The decedent began intentionally inhaling computer dusters, which are intended to remove lint and debris from computer keyboards using an odorless gas called Difluoroethane (“DFE”). Unsurprisingly, he developed an addiction to DFE, inhaling several cans of computer duster a day. Two years later, he died from DFE intoxication.

Plaintiff, the decedent’s father, filed suit against four defendants who design and manufacture computer dusters—which the decedent purportedly inhaled—alleging seven claims under Kansas law: (1) strict products liability—design defect; (2) strict products liability – failure to warn; (3) negligent design defect; (4) negligent failure to warn; (5) wrongful death; (6) breach of the implied warranty of merchantability; and (7) breach of express warranty.

One defendant, Falcon Safety Products, Inc., moved to dismiss all claims arguing the decedent’s conduct that caused his death was illegal, and that the illegality defense should apply to bar these claims caused by the decedent’s illegal conduct.

Analysis

Although never previously applied to bar product liability claims, Kansas law has long recognized an illegality defense. “Specifically, the Kansas courts have explained: ‘The illegality defense is based on the principle that a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act.  The defense will be applied to bar recovery if the evidence shows that the plaintiff freely and voluntarily consented to participate in the illegal act, without duress or coercion.’” 

The court in Messerli cited cases from Kentucky, Mississippi, Michigan, Alabama, Pennsylvania, and Florida, noting a significant trend in states beginning to apply the illegality defense to bar product liability claims. The policy underlying the illegality defense is that courts “won’t lend aid to a party whose cause of action directly results from an immoral or an illegal act committed by that party.” Along the same lines, the Court observed that “several other public policy goals are achieved by the doctrine including that it: (1) doesn’t condone and encourage illegal conduct, (2) prevents wrongdoers from receiving a profit or compensation as a result of their illegal acts, (3) avoids the public viewing the legal system as a mockery of justice, and (4) prevents wrongdoers from shifting much of the responsibility for their illegal acts to other parties.”

Messerli also relied on a 10th Circuit case, Inge v. McClelland, where the plaintiffs brought claims against a pharmacist who allegedly dispensed opioids to the plaintiffs, knowing the plaintiffs were abusing them. The Circuit Court affirmed the district court ruling that the plaintiff’s claims were barred based on New Mexico’s wrongful conduct doctrine. The Circuit explained that “even if the defendant pharmacist also engaged in illegal conduct, breached his duties to plaintiff, and benefited financially from the scheme, as plaintiffs argue, the pharmacist’s conduct does not negate plaintiff’s own misconduct.”  

In Messerli, the court found that the complaint alleged the decedent had violated Kan. Stat. Ann. § 21-5712’s prohibition against the “unlawful abuse of toxic vapors…[by] possessing, buying, using, smelling or inhaling toxic vapors with the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of the nervous system… Indeed, the complaint alleges repeatedly that [the decedent] possessed, bought, used, and inhaled the toxic vapors contained in defendants’ computer dusters. And it alleges that [the decedent] committed these acts because he was addicted to the intoxicating effects of DFE.” Thus, the court held that the complaint alleged the decedent “freely and voluntarily consented to participate in” illegal acts prohibited by Kan. Stat. Ann. § 21-5712. 

Lastly, the courtfound that the decedent’s illegal acts caused his injuries, and his injuries had a causal connection to all seven counts in the complaint.               

Missouri Implications

Missouri courts have yet to use a similar “illegality defense” to bar products liability claims, but Missouri has adopted the in pari delicto doctrine in non-product liability cases; notably, cases involving corporate fraud. See e.g., Zayed v. Associated Bank, N.A., 779 F.3d 727 (8th Cir. 2015). The in pari delicto doctrine mandates that, “a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.”