16 Feb Vaping Litigation: Another Case of Litigation Before Science?
Written by: Danielle Blauvelt, Esq.
American jurisprudence has an alarming history of litigating highly complex personal injury and products liability claims before fully understanding the science and medicine underlying the claims. Juries are presented with experts with impressive credentials who can creatively parse questionable medical studies to cobble together causation theories based upon conspiracy theories and fear mongering, as opposed to facts and science. Unfortunately, this is not a new issue in litigation, but the emergence of nuclear verdicts within the past few years makes it especially dangerous in the context of vaping litigation.
One of the earliest examples of litigation before science is the silicone breast implant litigation that started in the 1980s and exploded in the 1990s. In 1984, a female plaintiff alleging that her silicone breast implants ruptured causing autoimmune disease was awarded $211,000 in compensatory damages and $1.5 million in punitive damages . Subsequently, between 1991 and 1992, female plaintiffs alleging their silicone breast implants caused breast cancer, autoimmune, disease, or connective tissue disease as a result of the implants rupturing were awarded verdicts ranging from $5.4-$25 million in compensatory damages and up to $20 million in punitive damages . By 1993, there were 12,359 individual lawsuits filed against Dow Corning along with a class action matter with a high volume of plaintiffs . Prior to and while these lawsuits were ongoing, there were multiple published studies finding that there was no link between silicone breast implants and breast cancer, connective tissue disorders, rheumatic disease, neurological disorders, or autoimmune diseases . Eventually, the science won out and this litigation was quelled, but not after multiple manufacturers either went bankrupt or left the marketplace and billions were spent on verdicts and settlements .
More recently, are the lawsuits against Johnson & Johnson alleging that its talcum powder caused ovarian cancer in female users. In 2018, Johnson & Johnson was found liable for causing 22 women to suffer from ovarian cancer as a result of using talcum powder and it was ordered to pay $4.69 billion in damages . However, a recent JAMA study found no significant link between the use of talcum powder in the genital area and the risk of ovarian cancer among women .
Finally, as one last example, there has been the Monsanto (now owned by Bayer) litigation debacle over the question of whether glyphosate (the main ingredient used in the popular weed killer RoundUp) causes cancer, namely non-Hodgkin lymphoma. In 2019, Monsanto/Bayer lost three trials in California with verdicts of $80 million ($5 million in compensatory damages and $75 million in punitive damages), $289.2 million ($39.2 million in compensatory damages and $250 million in punitive damages that was later reduced to $39.25 million for a total verdict of $78.5 million), and $2.055 billion ($55 million in compensatory damages and $1 billion each in punitive damages for the husband and wife plaintiffs) . Another trial against Monsanto/Bayer that was supposed to begin in early February 2020 in St. Louis did not start as scheduled, fueling rumors that the defendant is not only attempting to settle with the four plaintiffs in that matter, but is also attempting to reach a global settlement of the over 13,000 lawsuits currently pending against it . Despite damages awards already in the billions, the science behind whether glyphosate causes cancer is questionable, at best. The Journal of the National Cancer Institute was not able to find any association between glyphosate and any solid tumors or lymphoid malignancies overall, including non-Hodgkin lymphoma . A meta-analysis indicating that people with high exposures may have an increased risk have exposure has been called into question for possibly having a botched analyses of the data that formed the basis of its findings . In other words, there is a lack of conclusive scientific studies demonstrating that glyphosate causes cancer to support these million and billion dollar verdicts.
What can be gleaned from these cases is that juries are willing to handout mega verdicts and are especially willing to punish large corporations with astronomical punitive damages awards even in the absence of sound scientific studies and research that provide the vital causative link to plaintiffs’ claimed injuries. So this leads us to two pressing questions: 1) how is the plaintiffs’ bar getting these huge verdicts in the face of questionable science to support causation and 2) how will this impact vaping litigation?
The answer to the first question is complex and requires a fair more detailed analysis than can be devoted within this article. However, put very broadly, there has been a shift away from appealing to jurors’ sympathy for the plaintiff(s) to utilizing the “reptile” theory. The “reptile” trial strategy was introduced in the book “Reptile: The 2009 Manual of the Plaintiff’s Revolution.”  The description of the book states, “[l]earn how to make tort reform’s impact on juries insignificant by using the jurors’ most primitive instincts of safety and self-preservation” . In a nutshell, the “reptile” approach is intended to make jurors feel threatened so that they will react in anger and punish the defendant(s). Other cited factors include a growing distrust and skepticism surrounding corporate America and plaintiffs’ attorneys simply being willing to ask the jury for huge verdicts . During one of the Monsanto trials, plaintiffs’ counsel purportedly told defense counsel that he would be asking the jury “for a stupid amount of money” .
Now, to consider how the plaintiff’s bar has managed to ignore and/or completely misconstrue scientific evidence and still get super-sized verdicts and how this will affect the burgeoning field of vaping litigation. Vaping litigation is currently exploding with over 250 cases filed in 2019 in federal court that are subject to a consolidation order that will consolidate the lawsuits in the Northern District of California . There are numerous other cases that have been filed in state courts across the county. Most of these cases are targeting JUUL Labs, which controls about 75-percent of the e-cigarette market share, and Altria Group, Inc. (Altria is the parent company of Philip Morris USA and owns 35-percent of JUUL) . However, retailers of vaping products (online and brick & mortar) and independent manufacturers and distributors of the products are also finding themselves in the crosshairs of the litigation. Most of the lawsuits allege vaping related injuries, such as becoming addicted, stroke, seizures, bronchiolitis obliterans (a.k.a. “popcorn lung”), loss of limbs, and death.
The popularity of vaping is a relatively new phenomena in the mainstream. Consequently, little is known about the long-term health effects of vaping. There have been no long-term studies conducted, in people or animals, to learn the effects of vaping on the lungs and cardiovascular system. A 2018 systematic review revealed that there “is a need to conduct large long-term global clinical trial in real life setting to ascertain the potential uses, adverse effects of ECIG” . James Stein, a preventive cardiologist at the University of Wisconsin in Madison, has stated, in regards to the long-term risks of e-cigarettes, “We have no idea what the harm is” .
In regards to the short-term effects of vaping, there are more studies available, but many of those are lacking in conclusive findings. Much attention has recently been given to electronic-cigarette, or vaping, product use-associated lung injury (EVALI) and the causative agent(s) behind EVALI. A recent study concluded that Vitamin E acetate may play a role in EVALI, but due to limitations in the study this could not be confirmed.  Vitamin E acetate is used as a thickening agent in illicit THC-containing products and it can be used to enhance the product’s quality and appearance and lower product cost .
The medical research evidencing the short and long-term effects of e-cigarette use is still lacking. Further complicating the research, is the fact that many vapers are former or current smokers making it difficult to parse out what deleterious health effects are caused by cigarettes versus vaping. Moreover, the vaping market is subject to illicit, poor quality black market products that use questionable ingredients that may cause harm to users that legitimate, properly produced products may not otherwise cause. It is not uncommon for vapers to purchase products from multiple sources and vapers may not even be aware they are purchasing illicit or contaminated products.
As we know from the examples of Dow, Johnson & Johnson, and Monsanto, a lack of science to support the claimed injuries will not stop aggressive plaintiffs’ attorneys from vigorously seeking mega verdicts even in the absence of valid medical and scientific facts to support their claims. Manufacturers, distributors, and retailers of vaping products are especially at risk. Americans already have a deep distrust of big business and a profound disgust for Big Tobacco or anything that has the taint of tobacco. You may have noticed that I did not mention the Big Tobacco litigation above. Frankly, it seemed unnecessary, but in case you somehow missed it, Big Tobacco companies entered the largest settlement in U.S. history when they agreed to pay $246 billion to settle lawsuits in 46 states . Since most of the major e-cigarette manufacturers are owned in part by or have some affiliation with one of the Big Tobacco companies, the reptilian plaintiffs’ bar will easily pray on the juries’ anger and fears that exist toward Big Tobacco.
With approximately 300 vaping litigation cases filed just last year and hundreds, if not thousands, more anticipated to be filed this year, there simply is not time for science to catch up with the deluge of litigation that is occurring now . A lack of scientific evidence is not necessarily a hinderance and, in some instances, can be used to the advantage of the defense. Moreover, with a carefully crafted defense, plaintiffs’ reptile strategy can be overcome at trial. We will further explore how to build a successful defense to defeat the reptile approach in the second part of this article.
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