Products Liability Law Daily E-cigarette maker faces wrongful death suit
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Wednesday, October 16, 2019

E-cigarette maker faces wrongful death suit

By Susan Engstrom

JUUL’s conduct in designing and marketing its highly addictive products substantially contributed to the death of a teenager, the complaint asserts.

The mother of an 18-year-old who died as a result of breathing complications has filed suit against JUUL Labs, Inc. in California federal court, alleging that her son’s death was directly caused by his addiction to JUUL® e-cigarettes. According to the complaint, the company marketed and promoted its highly addictive product through social media and other platforms to capture the lucrative youth market without warning teens about the risks of addiction, stroke, and other life-altering injuries. Demanding a jury trial, the complaint asserts causes of action for strict products liability (design defect and failure to warn), negligence, and negligent failure to recall, among other claims (Vail v. JUUL Labs, Inc., October 15, 2019).

In her complaint, the mother explained that at the age of 15, her son was exposed to the defendant’s advertising and promotional efforts via many sources, including social media, peer pressure, online sources, and direct emails. He tried several JUUL flavors and eventually became intensely addicted to the product. His performance in school began to decline and he suffered severe mood swings if he did not have access to JUUL. He continued using the product even after he was hospitalized for breathing and lung problems. His death at age 18 was attributed to breathing complications.

E-cigarettes are small, USB-shaped devices. Flavored JUUL pods are inserted into the device and contain the "e-liquid" that is vaporized, or vaped. According to the complaint, JUUL products are highly addictive and unsafe for individuals under the age of 26 because their brains are not yet fully developed. One JUUL pod contains at least as much nicotine as a pack of cigarettes, and studies have found a high prevalence of respiratory problems in adolescents who use e-cigarettes. Nevertheless, JUUL designed and marketed its products specifically to teenagers, the complaint alleges, noting that adolescents develop nicotine dependence and addiction at a faster rate than adults, find nicotine more rewarding, underestimate the risks of smoking, and are more influenced by social smoking behaviors of persons in their age group.

The complaint also maintains that the defendant’s teen-focused advertising model is derived from Philip Morris Tobacco Co., which owns a 35-percent share of JUUL. To launch its "Vaporized" campaign, the defendant held youth-oriented sampling events in major cities; offered to pay schools for the right to talk to students in classrooms; opened pop-up "JUUL bars"; and sent at least 200 promotional emails to potential customers (regardless of age) that included coupons for a "starter kit" and a "refer a smoker" program.

In addition, the complaint asserts that JUUL’s nicotine warning fails to disclose its highly addictive nature. Although the company recently added warnings stating that its products contain nicotine and that nicotine is an addictive chemical, the warnings fail to inform users that: (1) JUUL delivers doses of nicotine that are several times higher than those allowed in normal cigarettes; (2) the efficiency with which the product delivers nicotine into the bloodstream increases its addictiveness; (3) it can be more addictive than traditional cigarettes; and (4) it poses serious health risks. Instead, JUUL marketed its products as an "alternative to cigarettes," thereby giving the false impression that they are a healthy alternative. According to the complaint, JUUL’s deceitful advertising campaign has proven successful, as use of JUUL products is widespread, particularly among vulnerable youth.

Strict liability claims. In its strict liability causes of action, the complaint asserts that JUUL products are defective in design and are not safe for their intended or reasonably foreseeable use as ordinary consumers are led to believe. The defendant allegedly knew or should have known that its products are dangerous and defective in design because their delivery of potent, high doses of nicotine can cause addiction, thereby permanently altering the structure of the user’s developing brain, as well as cause harm to the airways, throat, and lungs.

The products’ defective design also poses a great risk of harm that outweighs any purported benefit. The defendant designed the products to be attractive and palatable to teens and non-smokers by making them available in youth-friendly colors and creating pod flavors that minimize the harsh taste and discomfort of traditional smoking. JUUL could have designed the products with significantly lower nicotine concentration, the complaint alleges.

In addition, the products were defective and unreasonably dangerous when they left the defendant’s possession because they failed to contain adequate warnings, including that they are powerfully addictive and unsafe for anyone under the age of 26. They also lacked adequate instructions on usage. JUUL knew or should have known that its products were dangerous and defective without adequate warnings or instructions. According to the complaint, the products’ defects and the company’s failure to warn were substantial factors in the decedent’s death.

Negligence. The complaint also asserts that JUUL was negligent, reckless, and careless, and failed to take the care and duty it owed to the decedent, thereby causing his death. For example, it failed to take reasonable care in the design, production, manufacture, assembly, testing, supply, and advertising of its products, and failed to warn customers about the products’ dangers. JUUL also acted negligently in failing to recall its products prior to the decedent’s death even though it knew or reasonably should have known that they presented dangers to users, particularly adolescents.

Other claims. The complaint also asserts claims for fraudulent concealment, conspiracy to commit fraudulent concealment, intentional misrepresentation, negligent infliction of emotional distress, and violations of California’s unfair competition law.

Wrongful death and survival. The plaintiff asserts that her son’s death was the result of JUUL’s false representations—through advertisements on social media, traditional media outlets, and the defendant’s website and packaging—that its products were safe and not harmful. The son relied on those representations and died as a direct and proximate result of the defendant’s careless, negligent, and/or reckless neglect and conduct. As such, the mother suffered the loss of her son’s love, comfort, care, and society.

Relief sought. The mother seeks compensatory and punitive damages in an amount to be determined at trial, including general damages and special damages, i.e., all expenses, incidental past and future expenses, medical expenses, and loss of earnings and earnings capacity. She also seeks pre-judgment interest; an appropriate injunction against JUUL; other equitable relief; reasonable attorney fees and costs; and other relief deemed appropriate by the court.

The case is No. 3:19-cv-06597.

Attorneys: Angela Jennifer Nehmens (Levin Simes Abrams LLP) for Lisa Marie Vail.

Companies: JUUL Labs, Inc.

MainStory: TopStory ComplaintNewsStory DesignManufacturingNews WarningsNews TobaccoProductsNews ElectronicProductsNews CaliforniaNews

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