01/03/2013 10:27 am ET Updated Dec 06, 2017

'Whip-It' Lawsuit: Users Take Legal Action Against Northern California Smoke Shops

On Halloween night 2010, Jason Starn had just returned home from a local head shop in Modesto after buying more nitrous oxide "laughing gas" canisters when "my brain kind of froze."

Starn later told his lawyer he had lost all feeling from the rib cage down. His wife took him to a hospital, where doctors kept him two weeks and determined he had suffered a degeneration of his spinal cord related to his abuse of nitrous oxide, his lawyer said. The numbness lasted months, according to the lawyer, and Starn still needs a walker to get around.

In an unusual lawsuit on file in Sacramento Superior Court, Starn is going after the three stores where he bought the drug, in the form of little gas chargers that go by the trade name Whip-It.

One of the three shops, Smoke Island in Folsom, is the same place where a young Sacramento-area man bought dozens of Whip-It canisters last year, just before he gassed himself into a state of blurred consciousness and killed two people in a traffic collision.

"Basically, we filed it because Jason wanted to come forward," said Starn's Sacramento attorney, Deborah Barron. "At first, he felt a little embarrassed about it all. And then he said, 'You know what? I've got to tell my story. I've got to get this out to everybody. There's people being injured by this. There's kids, high school kids, who are taking this stuff. College kids are taking it.'

"He said, 'I want to go ahead and sue them and I want to tell the story, and I want to sue, not just for my own injuries, but on behalf of all those who have been injured or could be injured.'"

The lawsuit filed on June 25 may be the only one of its kind in California, according to Barron, who said she couldn't find any others like it. She is suing under Business and Profession Code provisions against mislabeled products.

"This is a cutting-edge case," Barron said.

Along with Smoke Island, Starn's lawsuit names Still Smokin', a head shop in Foothill Farms, and No Limit Smoke Shop, in Modesto, as defendants. Barron said the suit has named those three stores because they are places where Starn bought his nitrous oxide.

It came in the same kind of Whip-It containers that 22-year-old Michael Dean Sharp, of Folsom, used the night of Jan. 7, 2012, before crashing his car into traffic on Folsom Boulevard. Christopher Stephen Ohlander Martell, 37, and his brother Robert Todd Ohlander, 32, were killed when Sharp slammed into their Saturn.

Lawyers retained to defend No Limit and Still Smokin' could not be reached for interviews, but their court papers filed in answer to the lawsuit were almost identical in the language they used to oppose it.

Both said that if Starn suffered injuries, it was the result of his own negligence. They said Starn misused the product and assumed his own risk.

"I think it's kind of a stupid lawsuit, personally," said a man who answered the phone and identified himself as the manager at the No Limit shop in Modesto.

"It's like going to McDonald's and suing them because you got fat because you ate it every day, or buying a nail gun and nailing your face, or your foot," said the manager. He declined to provide his full name, saying he wasn't authorized to discuss the case.

Shops like Smoke Island on Folsom-Auburn Road and Still Smokin' on Elkhorn Boulevard are filled with pot pipes and paraphernalia, but employees at the two stores say the Whip-It canisters are not necessarily used to get high, and if that is the case, they know nothing about it.

"Whip-Its are used for cafes. That is for the whipped creams, every day," said a man working the counter in the Folsom shop who also declined to give his name.

If anybody is getting high on the "laughing gas," he added, "I have nothing to do with it."

At Modesto's No Limit, the manager said, "I understand there are people who want to get high off whatever," but as for Whip-It canisters, he said, "I'm not selling them for that purpose. I'm not telling them, 'You can get high off this.'"

Barron said the case is in the discovery phase, and she is trying to retrieve the stores' invoices as well as manufacturing and distribution information on Whip It.

The New York state attorney general's office appears to be making the most aggressive effort in the country targeting retailers who sell nitrous oxide, filing a lawsuit last summer that obtained preliminary injunctions halting sales in more than a dozen stores.

In California, no laws prohibit possession of nitrous oxide, but statutes ban its sale to minors.

Whip-It is marketed as a device to whip cream in cappuccino machines. But the nitrous oxide in the canisters is an anesthetic commonly used in dentists' offices that has long been favored by recreational drug users for its euphoria-inducing effect.

Starn, 35, was a schoolteacher in Modesto who had been attending the Humphreys College Laurence Drivon School of Law when he paid a visit to a local head shop, Barron said.

"He was just looking at all the stuff, the pipes and this and that, and the salesperson demonstrated to him, 'You might want to try these, these are fun,'" said Barron.

"They didn't demonstrate inhaling it. They just demonstrated how to open the charger, with a cracker (a tool that releases the gas), and let the gas out into the balloon, to encourage him to buy the setup."

Barron said Starn bought the Whip-Its, took them home and "liked the effects." She said he used them fairly steadily over the next two months, leading up to his Oct. 31, 2010, episode.

"It's a well-known fact," Barron said, that nitrous oxide depletes vitamin B-12 from the blood, which can lead to spinal cord problems. She said an MRI determined Starn suffered a seizure that put him in need of the walker.

Barron would not allow her client to be interviewed.

Starn's lawsuit suggests employees at the three stores are disingenuous in saying they don't know people buy Whip-It to get high. It claims Whip-It is America's "most popular recreational inhalant of choice," with more than 12 million people having used the product to obtain a nitrous oxide high. Their popularity, the suit says, is a byproduct of their accessibility in head shops.

"Consumers cannot make informed decisions about the safety of the products they are purchasing without knowing the contents of the products and how they are intended to be used," the lawsuit states.

Starn is asking for an unspecified amount in general and punitive damages. Attorneys are scheduled to return to court July 11. The judge has yet to set a trial date.

Call The Bee's Andy Furillo, (916) 321-1141. Follow him on Twitter @andyfurillo. ___