How Liable Are the Vaping Companies and Can They Be Sued?

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How Liable Are the Vaping Companies and Can They Be Sued?

are vaping companies liable for their products

Vaping is a hot-button, divisive issue today. All the press, controversy and debate really began in March 2019, when the first patients began manifesting symptoms of lung injuries. It wasn’t until April that people began being admitted to hospitals. Then, from mid-July to mid-August, hundreds of people began being admitted to hospitals with serious, sometimes fatal lung conditions.

The one common denominator for all these patients was the use of e-cigarettes, commonly referred to as vaping. Some states were hit much harder than others, with California, Texas, Michigan and Illinois experiencing the highest rates of illnesses.

The victims of these vaping-related illnesses have been severely injured, and many news outlets are suggesting their lungs may never fully recover. Some families are now mourning the death of loved ones, sometimes in the prime of their life.

These families may have wrongful death cases, and the surviving victims may have personal injury cases, but successfully trying those cases may not be easy, at least not right away.

The Ongoing Investigation

In order to bring a successful personal injury or wrongful death case, your attorney must be able to prove the culpable party was negligent and in some cases that they knowingly distributed a product that was unsafe.

If it eventually comes out that a particular manufacturer of vaping liquids is at the center of all these injuries and deaths, they may very well be held liable. The ultimate settlement may be even greater if it’s proven that the manufacturer falsified lab testing or simply didn’t follow proper safety protocol when making their products.

Despite what some pundits or media talking heads may say, there are FDA regulations for e-liquids. In 2016 the FDA passed a rule that classified all electronic nicotine delivery systems (NDS) as tobacco products, meaning they must abide by the same regulations as cigarettes, cigars and other tobacco products.

The FDA requires tobacco companies to submit health documents and ingredient lists for their products. If some of the manufacturers lied or didn’t adhere to all the necessary regulations, that would help further the case of injury victims and the families of wrongful death victims.

What can make this particular case difficult are a couple key factors:

  • The precise cause has yet to be determined. Until it can be clearly proven who is responsible, they won’t be able to be held accountable for their actions or defective products.
  • The majority of victims were using black market THC-laced products that were illegally purchased or illegally distributed be disreputable marijuana dispensaries. Suing a drug dealer for injuries sustained while using illegal drugs is a murky area of law. The defense could make arguments that focus on contributory negligence and the assumption of risk by the user.

Keep in mind the four elements that must be present to prove another party’s negligence caused an injury:

  1. The culpable party owed a duty to the injured party
  2. They breached that duty
  3. That breach of duty harmed the injured party
  4. There were monetary/emotional/physical damages resulting from the harm

Proving a drug dealer owes a duty to their customer can be difficult, but some states have actually made it possible. These laws, commonly called Model Drug Dealer Liability Act, or in the case of Utah simply the Drug Dealer’s Liability Act, allows drug manufacturers and distributors to be held liable if:

  1. One of their customers injures someone while under the influence of the drugs they sold
  2. The user of their drugs dies as a result of the drugs they sold them, in which case the family can bring a wrongful death suit
  3. The illegal drugs they sold injured the user

States and territories with drug dealer liability acts include:

  • Michigan
  • Oklahoma
  • Illinois
  • Hawaii
  • Arkansas
  • California
  • South Dakota
  • Utah
  • Georgia
  • Indiana
  • Louisiana
  • Colorado
  • South Carolina
  • S. Virgin Islands
  • New Hampshire
  • Tennessee
  • New York

Current Vaping Lawsuits

There are several ongoing lawsuits and class action suits against e-cigarette companies – primarily JUUL. However, none of the existing lawsuits are related to the recent rash of illnesses that are getting so much attention.

According to most reports and even the CDC and FDA’s announcement, authentic JUUL pods manufactured by the company are likely not the cause of these latest injuries, but that’s not getting JUUL off the hook.

Most of the lawsuits currently against JUUL have to do with the company marketing its products to minors. Although the company has always emphatically stated their products are intended only as a smoking cessation tool to be used by adults, many people allege the company’s marketing efforts are tailored to attract young people and that some of the flavors they sold, such as candy, fruit and cookie flavors, were intended to lure in youths. The company ceased selling those flavors in November 2018.

There are also some lawsuits that claim some users suffered seizures or strokes due to JUUL use, and others that allege JUUL didn’t do enough to inform users of its addictive potential.

There are also class action lawsuits in relation to e-cigarette explosions, which have been attributed to the lithium-ion batteries that power the devices.

Do You Have a Case?

If you or a loved one have suffered an injury due to vaping, you may want to speak with an attorney. Although there’s no one party that’s been identified as the culprit of the latest outbreak of vaping-related illnesses, the CDC’s investigation is ongoing. If a negligent party is identified, people injured by vaping may have a case, depending on their state’s laws and how the dangerous product was procured.