Denver, Colorado – September 19, 2025 – National insurance defense firm Tyson & Mendes, LLP announced an appellate court victory in a class action case originating in Kansas (Messerli v. AW Distributing, Inc., __ F.4th__, 2025 WL 2525275 (10th Cir. 2025); US Court of Appeals for the Tenth Circuit, Denver, Colorado, Case No. 23-3241). Thanks to the tireless legal research and persuasive writing, Mitchell Malachowski, Partner in Tyson & Mendes’ San Diego, San Francisco Bay Area, and Los Angeles offices, as well as James Sell, San Francisco Bay Area Branch Office Managing Partner, presented persuasive oral arguments before the Tenth Circuit which unanimously affirmed a lower court’s order granting an early dismissal.

The client was an importer and distributor of computer spray dusters—aerosol cans intended to be used to remove dust from keyboards and other electronic devices. Unfortunately, however, individuals addicted to inhalant abuse, more commonly known as “huffing,” have misused the product. The gas inside the cans is called difluoroethane (DFE). Plaintiff was the surviving parent of decedent Kyle Messerli, an adult who lived in Kansas. Decedent was addicted to huffing and was ultimately found dead. The cause of death was acute DFE intoxication.

After the client was sued in federal court in Kansas, Tyson & Mendes attorneys were admitted pro hac vice in Kansas to defend the case. The team filed a motion to dismiss the case as a matter of law due to the decedent’s acts of huffing DFE being defined as criminal conduct by Kansas law. “In Kansas,” Mitchell Malachowski said, “there is a legal doctrine called the illegality defense. Under the illegality defense, a plaintiff cannot sue when the cause of the alleged injury was criminal conduct. We argued because abuse of DFE is a crime under Kansas law, the lawsuit was legally incapable of going forward.”

The District Court agreed, and the case was dismissed at the pleadings stage. Plaintiff appealed to the Tenth Circuit Court of Appeals. In a unanimous decision, the three-judge panel of the Tenth Circuit affirmed the District Court, finding the illegality defense under Kansas law operated to bar the case. The court also denied the motion to certify a question of state law to the Kansas Supreme Court.

About Tyson & Mendes LLP 

Tyson & Mendes LLP is a nationwide, AV-rated litigation and trial firm specializing in insurance defense and protecting its clients from Nuclear Verdicts®. Founded in 2002 by Robert Tyson and Patrick Mendes, the firm has experienced tremendous growth, with offices across the United States. Tyson & Mendes is known for its expertise in defending corporations, insurance companies, and their clients against Nuclear Verdicts®.

Serving 21 states nationwide, Tyson & Mendes is one of the fastest-growing civil defense firms in the U.S. and is proud to offer one of the fastest and clearest paths to partnership for its attorneys of any mid-sized law firm in the U.S. The firm is honored to be recognized as a 2024 Best Law Firm by Best Lawyers, named a 2024 Best Company to Work For: Law Firms edition by U.S. News & World Report, awarded the 2023 Liberty Mutual Insurance External Law Firm Partner of the Year Award, awarded the No. 1 “Ceiling Smasher” in Law360’s 2022 Glass Ceiling Report for female equity partnership, and shortlisted for Financial Times’ 2022 Innovative Lawyers North America Award.

For more information, visit www.tysonmendes.com.

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