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March 5, 2020 12:45 PM, EST

Fired Driver's Civil Suit Against CBD Companies Set for Trial in October

Drop of CBD oilDrop of CBD oil by Waldo Swiegers/Bloomberg

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When U.S. Department of Transportation officials issued a warning last month about the risks for truck drivers who use CBD products, they could have used 30-year veteran driver Doug Horn as their poster boy.

Horn, who hurt his hip and shoulder in a February 2012 vehicle crash, six months later looked to the reputed medicinal qualities of CBD oil to mitigate his pain. But as it turned out, in a way, the pain got worse when weeks later Horn learned he had tested positive for marijuana in a random drug test and was fired from his job of 10 years as a hazmat truck driver at Enterprise Transportation Co.

Horn’s unfortunate story serves as a lesson to other truck drivers who decide to use CBD, or cannabidiol, that might be mislabeled as being free of delta-9 tetrahydrocannabinol, or THC, the substance that causes the high in marijuana.

Host Seth Clevenger went to CES 2020 to look at the road ahead for electric-powered commercial vehicles. He spoke with Scott Newhouse of Peterbilt and Chris Nordh of Ryder System. Hear a snippet, above, and get the full program by going to RoadSigns.TTNews.com
 

The CBD product that Horn used, Dixie X CBD Dew Drops, was billed as being THC free.

It wasn’t, according to court documents, including an affidavit by a forensic toxicologist.

Horn first noticed a magazine ad in September 2012, promoting the new product as a “revolution in medicinal hemp-powered wellness.”

The ad claimed: “Using a proprietary extraction process and strain of high-CBD hemp grown in a secret, foreign location, Colorado’s Dixie X and Edibles now offer a new product called Dixie X CBD Dew Drops, which contains 0% THC and up to 500 mg of CBD.”

So in 2015, Horn filed a lawsuit against the companies that produced, distributed and sold the CBD. Ever since, he has been fighting a legal battle in a New York federal court to recover damages from lost wages and emotional trauma from the CBD producers and sellers who sent him their product in the mail, marketed by Dixie X and Edibles, which is named as one of four defendants in Horn’s lawsuit.

Horn’s attorney, Jeffrey Benjamin, of Great Neck, N.Y., said Horn does not want to comment on the case. Likewise, two attorneys representing two of the CBD companies did not return phone messages seeking comment for this story.

Horn’s misfortunes lend credence to a warning issued late last month by the U.S. Department of Transportation that mislabeling of CBD products can pose a career-ending risk for truck drivers. If a CBD product contains THC and a driver fails a drug test, the result will be immediate termination.

The DOT compliance notice reminded truck drivers and other safety-sensitive transportation workers that they are banned outright from using marijuana, and that if a CBD product contains even small traces of marijuana, they will be terminated from their jobs if they fail a drug test. A positive drug test after using CBD is not an excuse, the notice said.

Odapc Cbd Notice by Transport Topics on Scribd

A federal judge is permitting Horn to move forward with a Racketeer Influenced and Corrupt Organizations Act civil lawsuit against Medical Marijuana Inc. and the three other companies associated with the CBD products sold nationwide. The lawsuit, which is asserting claims of deceptive business practices, fraudulent inducement, racketeering, products liability, negligence and intentional infliction of emotional distress, is set for trial in October.

If Horn’s attorney can convince a jury of the RICO lawsuit’s serious allegations, it could result in an award of triple damages plus attorney’s fees.

The RICO law was enacted as part of the Organized Crime Control Act of 1970 to primarily give the federal government a tool to go after long-running criminal organizations. However, it is sometimes used in civil lawsuits that meet the conditions contained in the law.

Benjamin said that Horn is working again as a truck driver, but he lost several years of income to recover from the firing and find another job.

“We’ve survived summary judgment on a major issue, but I’m confident the judge understands the real issues,” Benjamin told Transport Topics.

Benjamin was referring to a November decision and order by Frank Geraci Jr., U.S. District Court Chief Judge in Rochester, N.Y., who ruled against Horn’s summary judgment motion saying that the “mere presence of naturally occurring THC in a product does not render it a controlled substance so long as it is derived from an excepted part of the cannabis sativa plant.”

But Geraci did rule that Horn could proceed with his RICO claims only to the extent they are premised on “predicate acts of wire and mail fraud,” according to court documents.

“Getting a RICO case through is unique. It’s not easy,” Benjamin said. “But the case is going to go forward on RICO civil fraud. I think we’re going to get a lot of attention on that issue throughout the entire country.”

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