Subscribe and receive the latest insights on the health and nutrition industry.
Join 37,000+ members. Yes, it's completely free.
As the U.S. grapples with the popularity and potentially adverse health consequences of kratom, some attorneys are leading the charge against the plant in the courts—and more wrongful death cases are likely on the way.
December 18, 2023
A kratom wrongful death lawsuit has been filed in county court in Washington state, in the same county where a jury earlier this year awarded millions of dollars in a similar case.
The development marks the latest in a series of wrongful death complaints, with even more likely to come, as products made from kratom—a substance from a tropical tree native to southeast Asia—face increasing scrutiny in the U.S.
In early December, a law firm—mctlaw—put 22 parties on alert that it’s seeking accountability for the passing of Jordan McKibban. McKibban was 37 years old and a resident of Cowlitz County, Washington, when he died on April 5, 2022.
That’s the same county where 39-year-old Patrick Coyne died two years earlier, also from “toxic effects of mitragynine (Kratom),” according to the same coroner’s office. Coyne used Kratom Divine sold by Oregon-based Society Botanicals, but he did not consume other substances, according to his family and toxicology reports.
In July 2023, jurors in Cowlitz County, Washington, sided with Coyne’s family, represented by mctlaw, and awarded them $2.5 million.
McKibban, who experienced pain in his hands and back, took kratom capsules, powder and liquid shots. It’s unclear how often he used the drug, or in what doses.
McKibban bought kratom products at a local shop, believing them to be safe, legal alternatives to pain medications, according to the civil complaint filed on Dec. 7, 2023. By the time he died in the bathroom of his home, toxicology reports showed 3,000 ng/mL (nanograms per milliliter) of mitragynine, the main alkaloid in kratom, in his system.
“Jordan McKibban suffered an untimely death as a direct and proximate result of the products that were imported, manufactured, marketed, distributed and/or sold by each of the defendants,” mctlaw attorneys alleged in the complaint.
The law firm is pursuing nearly two dozen defendants (about half of whom are listed as John and Jane Doe) on behalf of McKibban. Attorneys are seeking a jury trial and financial restitution.
“The defendants in this case all failed to warn Jordan McKibban that kratom is: (a) fraudulently imported; (b) wrongfully distributed, marketed and sold for human consumption without the required premarket verification of safety; (c) causing dependence, addiction, and withdrawal in regular users; (d) found to be 63 times more deadly than other natural products; and (e) found to be a contributor or cause of numerous overdoses and deaths,” the complaint alleged.
The firm is targeting the many entities and people behind Whole Herbs capsules, Hush liquid shots and Cloud House bulk powders. These are the products McKibban’s sister and personal representative, Rachel McKibban, believe killed her brother.
The lawyers for Jopen LLC, Whole Herbs’ parent company and the target of several kratom wrongful-death suits, did not immediately respond to an emailed request for comment.
An email delivered to Hush Kratom (also known as Hush Worldwide LLC) for comment was bounced back with the message “the address couldn’t be found or is unable to receive mail.”
Cloud House Vaporz Inc. in Woodland, Washington, did not answer the phone when a reporter called for this story. The retailer does not have a website or public email address.
The 22 defendants—10 of whom mctlaw listed as John and Jane Doe because investigators haven’t yet identified names or addresses—are spread throughout Washington state, Idaho, Texas and Wyoming. As of Dec. 18, none of the defendants had responded to the suit, per a search of the Cowlitz County Superior Court database.
More cases like those filed on behalf of Jordan McKibban and Patrick Coyne could be coming. In December, the Tampa Bay Times published an in-depth series on kratom in the state of Florida.
The newspaper found that more than 580 people have died from kratom-related overdoses just in the Sunshine State over the past decade. Forty-six of those deaths stemmed from kratom only, per the Tampa Bay Times.
In a Dec. 8 press release in response to the articles, the American Kratom Association (AKA) claimed the paper’s investigative team “has fallen victim to the FDA’s decade long gaslighting of the public on the safety of kratom.”
“The FDA has made official pronouncements in government documents claiming kratom is dangerous; has flooded the internet with anti-kratom claims; and has misled medical examiners, law enforcement officials, addiction recovery center officials, elected officials, trial attorneys, the media, and the public with a deliberately false stream of disinformation claiming that kratom is dangerous,” the kratom group said.
Kratom contains two chemical substances—mitragynine and 7-OH-mitragynine—that “bind to the same receptors in the brain (mu opioid receptors) as opioid drugs such as codeine,” according to a webpage on kratom published by FDA. The agency has said kratom is not lawfully marketed in the U.S. as a drug product, dietary supplement or as an additive in conventional food.
Pushing back against FDA’s narrative, the AKA recently quoted a recent Department of Justice court filing as saying FDA has not obeyed an order to justify why kratom is dangerous because the agency had not made such a determination.
That case, in the U.S. District Court for the Southern District of California, involves a criminal indictment against an individual and company who allegedly “purchased kratom in Indonesia and imported it into the United States, falsely declaring it to be, among other things, green tea, fertilizer and a product used in dyeing fabric.”
“The United States is unable to obtain information from the Food and Drug Administration (FDA), either in support of or contrary to the position that kratom poses a danger to U.S. consumers, as ordered by the court,” DOJ lawyers wrote in a Dec. 6 court filing. “The government intends to withdraw its current sentencing papers and file amended sentencing documents, relying solely on independent experts.”
The defendant in the criminal case, Sebastian Guthery, entered a plea agreement and is awaiting sentencing; DOJ lawyers, however, noted no charges were filed in the case under the Federal Food, Drug & Cosmetic Act, which FDA enforces.
“The FDA has repeatedly stated for more than a decade a constant false narrative that kratom is dangerous and when they are required to document that claim under oath in a Federal District Court, they refuse because they admit they never could justify their claims kratom is dangerous,” AKA’s Mac Haddow concluded in the press release.
Often, kratom-overdose victims have other substances—alcohol or illicit drugs—in their systems. But mctlaw wants to focus on the consequences of consuming kratom on its own.
“The cases that we’ve seen and dealt with, and are dealing with, are explicitly only kratom,” Michael J. Cowgill, trial attorney for mctlaw, told Natural Products Insider in a phone interview in August. “The reality here is that kratom is a problem, period.”
To that point, mctlaw has 10 active cases on its books, with “dozens” more candidates under review, according to Talis Abolins, senior counsel for mctlaw’s kratom litigation practice.
“It’s a big undertaking,” he added, who, alongside Cowgill, secured the $2.5 million jury verdict for Coyne’s family.
The firm also has secured a multimillion-dollar default judgment on behalf of a woman who died after consuming kratom.
In late July 2023, U.S. District Judge Donald M. Middlebrooks issued a default judgment of $11.6 million against defendant Sean Michael Harder and his Idaho-based company, Grow LLC, on behalf of Krystal Talavera.
“[N]o award of damages will ever be adequate,” Middlebrooks wrote in the order.
The 39-year-old Florida mother died on June 20, 2021, of what the Palm Beach County Coroner concluded was “acute mitragynine intoxication.” Like Coyne, Talavera did not have lethal or potentially lethal substances in her system other than kratom, per the medical examiner’s report, which characterized the manner of death as “accident.”
Talavera’s eldest child subsequently filed a kratom wrongful death lawsuit, seeking damages for himself and his three siblings. To date, the resulting default judgment of nearly $12 million ranks as the largest monetary ruling in a kratom wrongful death lawsuit, based on published media reports.
At least one mctlaw wrongful death kratom case, that of Dustin Hernandez, showed the presence of another substance in the decedent’s system, namely marijuana. But “that's a non-issue,” according to Tamara Williams, mctlaw trial attorney.
She said her firm spoke with an expert and the medical examiner regarding the marijuana issue.
Both of them agreed that’s not what took his life,” Williams said in a December call with Natural Products Insider. “It was the kratom.”
In an interview over the summer, Cowgill described the kratom industry as a “Wild West marketplace where people are making a cash grab over a dangerous product—and, frankly, I think a lot of the industry knows it, and they’re cashing in while they can.”
“And sadly, you know, people are harmed,” the trial lawyer added, “whether they’re addicted or injured in some capacity, or die.”
Editor’s note: Josh Long contributed reporting to this article.
You May Also Like
9 of 10 Amazon galantamine memory supplements failed to meet label claimFeb 23, 2024
ABC reports herbal sales fell 1.9% in 2022Feb 22, 2024
Here's why creatine sales are surging this past yearFeb 21, 2024
DSHEA's 25th anniversary: Industry vets, critics respondFeb 21, 2024