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Denver judge tosses consumer lawsuit filed over pesticides on pot

By: David Migoya and Ricardo Baca, The Denver Post
February 11, 2016 Updated: February 11, 2016 at 10:02 pm
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A Denver judge Thursday dismissed a lawsuit against the state's largest marijuana grower over its alleged use of pesticides saying the consumers behind the case were not actually harmed.

Denver District Judge J. Eric Eliff said the consumers - one of them a medical-card holder with a brain tumor - couldn't sue because they bought the pot and used it without repercussion.

Brandan Flores and Brandie Larrabee alleged LivWell had inappropriately used Eagle 20, a heavy-hitting pesticide with myclobutanil that kills a variety of pests endangering the plants, and had overpaid for the marijuana.

Myclobutanil is not among the pesticides - which broadly includes products ranging from fungicides to herbicides - approved for use on marijuana by the Colorado Department of Agriculture.

Plaintiffs' attorneys likened the case to someone purchasing a home with an undisclosed defect, learning later the value of the property was diminished as a result.

Judge Eliff did not agree.

"Plaintiffs bought the cannabis and consumed it," he wrote in a five-page opinion granting LivWell's request to dismiss the case. "There is nothing to resell, and there are no allegations that plaintiffs intended to resell the marijuana that they purchased."

More importantly, "there are no allegations that the product did not perform as it was supposed to," Eliff wrote, noting both consumers smoked the marijuana they had purchased without harm.

Neither alleged they were sickened from ingesting marijuana they purchased at LivWell, but each said they would not have inhaled the product if they had known it was treated with Eagle 20.

The lawsuit said the fungicide, when heated, breaks down to "poisonous hydrogen cyanide" and alleges that consumers who smoke marijuana treated with Eagle 20 ingest the gas.

Flores lives in Denver and Larrabee is a Grand Junction resident.

LivWell owner John Lord said the lawsuit was "a public relations ploy intended to smear our name."

"The people behind this case do not want the commercial cannabis industry to succeed and will try anything to bring down the industry," Lord said in a statement.

LivWell attorney Dean Heizer said the case was "nothing but an improper and abusive attempt to injure our business."

Attorneys for Flores and Larrabee did not immediately return messages seeking comment.

David Migoya: 303-954-1506, dmigoyadenverpost.com or davidmigoya

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