Rhode Island Future of e-cigarette litigation question mark for product liability bar Potential health risks of vaping are unclear

By Pat Murphy BridgeTower Media Newswires PROVIDENCE - Product liability attorneys say whether the smattering of claims against e-cigarette manufacturers become a torrent comparable to tobacco litigation rests on the extent to which science can establish a link between vaping and serious health risks. Currently, there's a complete lack of understanding as to the number of illnesses or medical conditions that vaping products can cause, according to Providence lawyer Vincent L. Greene. "We're in the same position that we were in decades ago where we didn't have the developed science [on the risks of smoking]," Greene says. "We may find out too late after a lot of people get sick." Boston defense attorney Johanna L. Matloff agrees to the extent that it would be premature to attempt to gauge the liability exposure of manufacturers. "We just don't know what vaping nicotine into your lungs is going to do to you," says Matloff, who represented R.J. Reynolds in Massachusetts tobacco litigation. Meanwhile, local attorneys are turning to the templates hammered out in tobacco cases to bring some of the first consumer claims against e-cigarette manufacturers. Earlier this month, Andrew A. Rainer and Mark A. Gottlieb of the Public Health Advocacy Institute in Boston filed a federal class action alleging that Juul Labs wrongfully marketed to minors vaping products that pose an unreasonable risk of nicotine addiction. But Rainer says he doesn't expect e-cigarette litigation to follow the same course as tobacco litigation for a variety of reasons. "The tobacco companies basically took the approach of fighting every case tooth and nail," he says. "I would not expect this litigation to follow the same route. Juul has already changed its marketing practices." ----- Unknown health risks? The U.S. Food & Drug Administration classifies electronic cigarettes and similar devices such as vape pens as electronic nicotine delivery systems. In August 2018, the FDA began requiring that e-cigarettes and most other tobacco products include the warning: "This product contains nicotine. Nicotine is an addictive chemical." Apart from addiction, the potential health risks of vaping are unclear. "The jury's out on what the physical damage is from these products," says Boston litigator Christopher Weld Jr. Rainer maintains it is "clear" that the regular use of e-cigarette products compromises one's respiratory system. He points to studies showing that flavorings used in e-cigarettes contain chemicals associated with "popcorn lung" - the condition that damages the lungs' smallest airways, resulting in coughing and shortness of breath. For plaintiffs' attorneys, the question becomes whether vaping causes the types of compensable injuries that justify the expense of litigation. "The harm would have to be significant to justify the cost," Weld says. "You're going to need to bring in experts to reinvent the wheel." Lawyers considering bringing lawsuits for vaping injuries currently lack the "smoking gun" comparable to the U.S. surgeon general's recognition in 1964 of a link between smoking and lung cancer. However, there is mounting evidence fueling concerns about serious injury caused by vaping products. On Aug. 17, the Centers for Disease Control & Prevention issued an alert that the agency was investigating "clusters" of pulmonary illnesses linked to e-cigarette use by adolescents and young adults. The CDC announced it was investigating 94 possible cases of "severe lung illness associated with vaping" that were reported in 14 states between June 28 and Aug. 15 of this year. Just a week later, the CDC issued an update indicating the agency had identified 193 potential cases of severe lung illness tied to vaping in 22 states. It further announced what it claimed was the first death related to the use of a vaping device. The CDC reported that the Illinois Department of Public Health had recorded the death of an individual hospitalized with severe respiratory illness that developed shortly after the patient vaped. Local news reports across the country are also fueling a sense that there's a health crisis in the making. One recent report had a Florida teen claiming that his right lung collapsed due to a hole that developed in the lining of his lung from use of a Juul vaping device. Meanwhile, a Connecticut man sued Juul in California state court last month, claiming he suffered a massive stroke in 2017 due to an addiction to Juul products that started when he was in high school. "I think you're looking at the tip of the iceberg," Greene says. "This is a multi-billion-dollar industry that has just exploded. I don't think anybody has a handle on just how potentially bad this could be." ----- Juul class action On Aug. 15, the Public Health Advocacy Institute's Rainer and Gottlieb filed their class action, Murphy v. Juul Labs, Inc., in U.S. District Court in Boston. The suit asserts claims for breach of implied warranty of merchantability as well as unfair trade practices under Chapter 93A for marketing to minors. Alleging that more than 50,000 minors in Massachusetts have become daily users of the company's vaping products, the plaintiffs seek certification of a class of all persons in the state who became regular users of Juul e-cigarettes before the age of 18. The plaintiffs claim that Juul manufactured and sold e-cigarettes in a "defective condition unreasonably dangerous to minors" and unfairly designed and marketed its e-cigarettes for use by minors. "It was an e-cigarette targeted to young people and it was extremely successful," Rainer says. "It was designed to be extremely effective in addicting people. A product that is designed to addict is dangerous." Matloff sees a similarity between Murphy and tobacco cases in that the plaintiffs need to prove there's a safer alternative design to Juul's e-cigarette in order to succeed on their breach of warranty claims. In tobacco cases, Matloff says, one of the central issues was whether there was a way to make safer cigarettes. She questions whether the plaintiffs in Murphy can show that Juul can manufacture an e-cigarette without a risk of nicotine addiction. In their complaint, the plaintiffs allege that the pods Juul manufactures for its e-cigarettes contain a solution that delivers a nicotine concentration well above that of conventional cigarettes. "Research has shown that a puff from a Juul will contain a third more nicotine than a puff from the leading conventional cigarette, Marlboro," the complaint states. Weld represented the plaintiffs in Donovan v. Philip Morris USA, the 2009 case in which the Supreme Judicial Court recognized a cause of action for medical monitoring based on the subclinical effects of exposure to cigarette smoke and increased risk of lung cancer. Weld sees Murphy as a similar type of action in that instead of damages, the plaintiffs primarily seek injunctive relief in the form of a court order requiring Juul to fund a statewide clinical treatment program for the prevention and treatment of nicotine addiction. ----- Pointing fingers Signaling the courtroom battles to come, the e-cigarette industry insists that its products are not the problem, claiming that any health risks lie in the "street vaping" of chemicals such as THC, the main active ingredient of marijuana. The American Vaping Association issued a statement asserting there was no "concrete evidence" linking the Illinois death to vaping. "Each day of this crisis brings more evidence that street vapes containing THC or other illegal drugs are responsible for these illnesses, not nicotine vaping products," AVA President Gregory Conley said in a statement. Science is just beginning to weigh in on the causation issue. On Aug. 20, researchers at the University of Pennsylvania released a study concluding that a single e-cigarette can be harmful to the body's blood vessels in a manner that can increase the risk of heart attack or stroke - even when the vapor is entirely nicotine-free. "Beyond the harmful effects of nicotine, we've shown that vaping has a sudden, immediate effect on the body's vascular function, and could potentially lead to long-term harmful consequences," said the study's principal investigator, Felix W. Wehrli. Greene points out that the state actions against the tobacco industry seeking recovery of Medicare and Medicaid costs associated with smoking-related illnesses suffered by their citizens were a powerful factor in the success of the tobacco litigation. "Almost all 50 states filed actions, starting with Mississippi, and that was genuinely groundbreaking," Greene says. States like Massachusetts and Rhode Island could one day have a similar motivation to recover health care costs associated with vaping, he says. "How much damage are these products really going to cause, and what's that going to cost the states?" Greene asks. According to the FDA, 3.62 million middle and high school students used e-cigarettes in 2018. The agency reported e-cigarette use increased 78 percent among high school students and 48 percent among middle school students from 2017 to 2018. Meanwhile, Massachusetts reports that, in 2015, nearly 50 percent of the state's high school students used e-cigarettes at least once and that young people use e-cigarettes nine times more than adults. The problem of vaping by the young is on the radar of Massachusetts Attorney General Maura T. Healey. In July 2018, her office launched an investigation into Juul and other online e-cigarette retailers over concerns about the marketing and sale of products to minors. In May, the AG filed a complaint in Suffolk Superior Court alleging that New Jersey-based Eonsmoke LLC violated the Consumer Protection Act by directly targeting young people for sales of its vaping products. The complaint also alleged that Eonsmoke failed to verify the age of online purchasers of its products and failed to ensure that shipments of its products were received by a person 21 or older, the state's minimum legal sales age for smoking products. Published: Thu, Sep 12, 2019