Tenth Circuit Affirms Precedent-Setting Dismissal in Computer Duster Product Liability Case

The United States Court of Appeals for the Tenth Circuit today affirmed a landmark dismissal in Messerli v. AW Distributing, Inc., establishing important precedent regarding the application of the illegality defense in product-liability cases in Kansas. 

The case arose from the tragic death of Kyle Messerli, who died from acute Difluoroethane (DFE) intoxication after allegedly inhaling computer duster products manufactured by various defendant manufacturers. Plaintiff claimed that Messerli had become addicted to “huffing” computer dusters, inhaling four or more cans daily before his fatal overdose in August 2020. The plaintiff argued that defendants knew their products were being abused but failed to implement adequate safeguards.

The U.S. District Court for the District of Kansas dismissed all claims with prejudice, ruling that because inhaling computer duster violates Kansas criminal law (K.S.A. § 21-5712), the illegality defense barred recovery. The district court rejected plaintiff’s argument that Kansas’s comparative-fault statute had abrogated the illegality defense.

Writing for a three-judge panel, Circuit Judge Tymkovich affirmed the dismissal, holding that Kansas’s illegality defense remains viable in product-liability cases despite the state’s adoption of comparative-negligence principles.

The appeal was led by Partners Scott D. Kaiser, Holly Pauling Smith and Associates Cailynn Hayter and Stephen E. Nichols.

The case was heard by Circuit Judges Tymkovich, Phillips and Carson. Messerli v. AW Distributing, Inc., No. 23-3241 (10th Cir. Sept. 3, 2025).