What Cannabis Cultivators and Retailers Need to Know About Product Liability Lawsuits

What Cannabis Cultivators and Retailers Need to Know About Product Liability Lawsuits
Article: What Cannabis Cultivators and Retailers Need to Know About Product Liability Lawsuits
David R. Geiger  |  Partner
Seaport West
155 Seaport Boulevard
Boston, Massachusetts 02210-2600
617 832 1124 phone
617 832 7000 fax

All signs point to 2019 being another huge year for the cannabis industry, with medicinal and recreational use expanding to more states and the diminishing threat of federal prosecution paving the way for the industry to meet or exceed soaring market expectations.

But with booming sales comes the prospect of booming litigation.  As the number of cannabis users increases, so too will the number of actual or suspected side effects from such use.  Just as with other products ingested by consumers—ranging from ordinary food and beverages to more heavily regulated items like pharmaceuticals, alcohol and cigarettes—at least some of these alleged side effects will inevitably result in lawsuits.  While consumers (and lawyers) would never have sued a street-corner dealer after a bad reaction, they will sue a legal cultivator or seller, particularly as such companies become larger, more sophisticated and better funded.

In Massachusetts and other states, perhaps the most common basis for a product liability lawsuit is that the manufacturer or seller did not adequately warn of a reasonably foreseeable risk arising from the product.  The very vague health warnings required by authorities in Massachusetts and elsewhere may not seem adequate to a jury presented with evidence that the specific side effect a plaintiff claims he suffered—such as schizophrenia or other psychoses, addiction, chronic bronchitis, cognitive and memory deficits, depression, anxiety, suicidality, lung cancer, or heart attack—was reported in the medical literature and the cannabis defendant should have known of and warned about it.

Obviously, cannabis cultivators and sellers cannot warn about every conceivable risk, or even every one suggested somewhere in the literature, but they do have a duty to give reasonable warnings.  While such issues may have been largely theoretical in the past, companies in the field would now be well advised to give them due consideration.

Cannabis Law Journal – Editorial Board Members

Editor – Sean Hocking

Author Bios

Canada
Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Nicaragua
Elvin Rodríguez Fabilena

USA

General
Julie Godard
Carl L Rowley -Thompson Coburn LLP

Arizona
Jerry Chesler – Chesler Consulting

California
Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Colorado
Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Florida
Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

Illinois
William Bogot – Fox Rothschild

Massachusetts
Valerio Romano, Attorney – VGR Law Firm, PC

Nevada
Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Oregon
Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Pennsylvania
Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild