Each year, thousands of individuals are severely injured or die from intentional inhalation of everyday products like computer duster to achieve a euphoric high. When these injuries or deaths lead to lawsuits against manufacturers, plaintiffs often argue that the products were defectively designed or inadequately warned. A recent Tenth Circuit decision reinforces a critical limit on such claims under Kansas law: when the plaintiff’s own criminal conduct is the proximate cause of the harm, recovery is barred.
The Tenth Circuit’s ruling in Messerli v. AW Distributing, Inc., 153 F.4th 1077 (10th Cir. 2025) affirmed dismissal of a wrongful-death action, holding that Kansas recognizes a robust illegality defense in product liability cases. For manufacturers and defense counsel, Messerli is a significant victory that strengthens the toolkit for defeating claims arising from illegal misuse.
The case involved the fatal inhalation of
1,1-difluoroethane (DFE) from a can of computer duster. The decedent’s father brought claims under the Kansas Product Liability Act (KPLA), asserting that the manufacturers knew their product was being abused yet failed to implement effective design changes, warnings, labeling, or deterrent additives. He further alleged that the manufacturer’s added bitterant was ineffective and, paradoxically, made the DFE easier to inhale.
Kansas law squarely prohibits the intentional inhalation of toxic vapors (including halogenated hydrocarbons such as DFE) with the intent to cause euphoria, exhilaration, or dulled senses. Kan. Stat. Ann. § 21-5712. Violators face class B misdemeanor charges. The district court dismissed the case, concluding that Kansas common law precludes recovery when illegal conduct proximately causes the injury and that the defense survived adoption of comparative fault.
The Tenth Circuit affirmed in a thorough, unanimous opinion that strengthens the illegality defense in Kansas product liability cases. The court emphasized that KPLA is not a comprehensive code, and where the statute is silent, Kansas common law fills the gaps. It further held that common law has long recognized the illegality defense as a complete bar to recovery in tort actions. While manufacturers may face liability for reasonably foreseeable misuse of their products, the court made clear that such exposure does not eliminate traditional affirmative defenses. Illegality remains one of them.
Critically, the court found no conflict between the defense and either the text or the purpose of the KPLA. The court also rejected the plaintiff’s argument that Kansas’s adoption of comparative fault swept away all contributory bars. The comparative fault statute expressly abolished only contributory negligence, and the Kansas Supreme Court—while invalidating defenses like assumption of risk and certain forms of misuse on policy grounds—has never extended that reasoning to eliminate the illegality defense. When a plaintiff’s criminal conduct proximately causes the injury, Kansas law still allows defendants to secure outright dismissal.The court also noted that the Eleventh Circuit (applying Florida law), as well as state courts in Mississippi, Iowa, and Michigan, have enforced similar illegality or wrongful-conduct bars in product liability cases. Messerli firmly places Kansas in this camp.
In Kansas and other jurisdictions that have not rejected the defense, early investigation should focus on whether the plaintiff’s conduct violated a criminal statute and whether that violation proximately caused the injury. When both elements are present, Messerli provides clear authority for a complete bar to recovery. Motions to dismiss or for summary judgment grounded in the illegality defense are now stronger than ever. Messerli is essential reading for any defense team handling inhalant-abuse or similar high-risk product cases.
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