Where There’s Smoke, There’s … a Bonfire? Update on E-Cigarette and THC Vaping Related Illnesses

Previously on Life Science Matters, we discussed what appeared to be the sudden outbreak of vaping-related hospitalizations and illnesses sweeping across the country. Since that article, cases involving injuries to lungs associated with vaping products have been reported to the Center for Disease Control (CDC) from 49 states, the District of Columbia, and one United States territory. To date, 28 people have died across 21 states. More than 1,250 cases of vaping-related illnesses have been reported. Every patient involved reported a history of using e-cigarettes or vaping products.

More concerning for the cannabis industry is that most of the patients using e-cigarette, or vaping, products reported using products containing THC. However, these findings have also shown that many of the THC products were obtained from illicit sources – off the street, non-verified retail establishments, family members. Where do we stand then? What steps can be taken to combat this issue?

From a medical standpoint, the CDC recommended that individuals do not vape or use e-cigarettes at all. They also noted that some of the patients who were hospitalized reported exclusively using nicotine-based products and as a result, noted that the possibility of nicotine-containing products playing a role in the outbreak cannot be excluded. They also reported that neither the CDC nor the FDA have identified the cause or causes of the lung injuries, but that the only commonality among all cases is that patients report the use of e-cigarette or vaping products.

What does it mean for the cannabis companies and e-cigarette companies involved in this business?

While many details seem to point to the use of products obtained on the black market, it is highly likely that litigation will arise related to the production, manufacturing, and marketing of these products. We maintain that if litigation arises, it’s likely to be some form of products liability lawsuit. What types of allegations might be raised? Given the nature of injuries, the unfortunate deaths of individuals across the country and the impact on people’s lives, there are various claims we anticipate being raised, including but not limited to:

  • Negligence
  • Defective product
  • Breach of warranty of fitness
  • Strict liability
  • Product implicitly safe by allowing into the stream of commerce
  • Breach of implied warranty as to fitness of product
  • Breach of implied fitness
  • Failure to properly inspect product/failure to take necessary precaution
  • Lack of quality control
  • Defect should have been known prior to leaving factory
  • Violation of express warranty
  • Improper assembly
  • Manufacturing flaws
  • Product contained impurities
  • Spoilage/rot in product
  • Structural integrity flawed
  • Defendant failed to warn plaintiff of potential dangers

Many of these claims are variations of one another and can be tied together, such as defective design and manufacturing defect/flaws. Each of these claims will require addressing should they be raised by attorneys on behalf of patients. For example, in New York an allegation that a product is defectively designed is defined by the courts as “one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use”[i]  If the “utility” of a product “does not outweigh the danger inherent in its introduction into the stream of commerce,” then the product is defectively designed.

To establish a prima facie case on claim of design defect, a plaintiff must show

  1. That the manufacturer marketed a product which was not reasonably safe in its design
  2. That it was feasible to design the product in a safer manner
  3. That the defective design was a substantial factor in causing the plaintiff’s injury.[ii] There are likely to be various other allegations raised against manufacturers of both cartridges and e-cigarettes. Given that cases of lung-related injuries are located across the country, companies are likely to see some form of multi-district litigation, similar to what’s occurred in the Johnson and Johnson talc cases and Monsanto pesticide cases. Regardless of how cases are brought, companies involved in manufacturing either e-cigarettes or the cartridges utilized by the e-cigarettes must be prepared with strong arguments to counter the allegations raised against them.

[i] Fasolas v. Bobcat of New York, Inc., 33 N.Y. 3d 421, 429-430, 128 N.E. 3d 627, 632, 104 N.Y.S. 3d 550 (2019); Yun Tung Chow v. Reckitt Coleman, Inc., 17 N.Y.3d 29, 33; 950 N.E.2d 113, 116; 926 N.Y.S.2d 377, 380 (2011).  Citing, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 NE2d 204, 463 NYS2d 398 (1983)

[ii] Ramirez v. Sears Roebuck and Co., 286 A.D.2d 428; 729 N.Y.S.2d 503 (2nd Dept. 2001)

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