A plaintiff may not seek punitive damages against a store owner for selling synthetic compounds commonly referred to as bath salts, even if the seller knows the buyer may use the substance in a harmful way, a Monroe County Court of Common Pleas judge has ruled.

Judge David J. Williamson ruled August 14 that the plaintiff in Kish v. Bangia will not be able to seek punitive damages in her wrongful-death suit against the store that allegedly sold her son synthetic substances that can create effects similar to amphetamine and cocaine and are believed to cause hallucinations.

The substances, which had been sold legally over the counter until recently, are packaged in a way to resemble bathing products, and often contain a disclaimer indicating the product is not for human consumption.

“We do not see how the sale of a legal item, even with knowledge of a harmful use by the purchaser, can rise to a level of outrageous behavior as contemplated in assessing punitive damages when the seller has no way of knowing the certainty of the use or actions thereafter of the purchaser,” Williamson said.

According to the opinion, the defendant, who allegedly owned and operated a minimart and gas station, allegedly sold bath salts to Robert Joseph Kish. On July 28, 2011, while allegedly high on bath salts purchased at the defendant’s store, Kish took members of his family hostage in his home, set the home on fire and was later shot and killed during a stand-off with Pennsylvania State Police troopers, the opinion said.

The alleged incident occurred more than one month after Governor Tom Corbett signed a bill on June 23, 2011, making bath salts and other synthetic compounds illegal.

The plaintiff argued that the minimart owner knew the decedent was using the substance in a harmful manner, and further that selling the bath salts with that knowledge constituted reckless disregard for the decedent’s health, the opinion said. The plaintiff also alleged that the decedent’s family had asked the defendant to stop selling Kish the bath salts prior to the incident, the opinion said.

According to Williamson, the defendants cited Phillips v. Cricket Lighters, which involved a young child using a lighter to start a fire that caused the child’s death and the death of several family members. In that decision, the court found that there was no indication of sufficiently reckless disregard or evil motive that could justify a claim for punitive damages.

“The facts in Phillips are analogous to the facts in the instant case,” Williamson said. “While a jury may find that defendants’ actions were negligent, their actions do not, under Phillips, rise to the level of outrageousness that allows the assessment of punitive damages.”

Williamson further weighed the policy issues that might arise in allowing a consumer who buys a legal product advertising an intended use to bring a claim for punitive damages against the seller.

“Many products can be harmful when intentionally used in a different manner than intended,” Williamson said. “Punishing the seller of those products outside the normal course of negligence damages is not in accord with the legal and policy principles of the commonwealth of Pennsylvania.”

The alleged dangers of bath salts gained national attention in 2012, when a man who had allegedly ingested bath salts beat a homeless man unconscious and then bit off portions of his face in Miami, Fla.

Plaintiffs attorney Gary S. Figore, of Easton, Pa., and defense attorney Thomas Geroulo, of Weber Gallagher Simpson Stapleton Fires & Newby in Scranton, did not return calls for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the six-page opinion in Kish v. Bangia, PICS No. 13-2708, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •