The First of the Vape-Lung Product Liability Cases Has Been Filed

October 2, 2019

Author: Ian A. Stewart

A product liability lawsuit has been filed in Washington state court against several manufacturers of THC vape cartridges. The case, Charles Wilcoxson v. Canna Brand Solutions LLC et al., was filed on September 23, 2019, in the Superior Court of Pierce County, Washington. The complaint alleges that the plaintiff, a 44-year-old police officer and former member of the U.S. Army Special Forces, had consumed various THC vape products between January 2018 and September 2019. He purchased several cannabis brands, including Conscious Cannabis, Rainbows Aloft, Leafwerx, MFused and Jane’s Garden, all of which are named as defendants. Also included as a defendant is Canna Brand Solutions, the distributor of plaintiff’s vaporizer device (called a “pen” or “battery”), which was manufactured by C-Cell, a Chinese corporation.

According to the complaint, plaintiff vaped on September 11, 2019, and woke up with severe wheezing that night. He continued to have difficulties through the weekend and on Monday morning presented at the emergency room. Plaintiff was diagnosed with lipoid pneumonia caused by vaping. A pathology report noted “numerous lipid laden macrophages” on his lungs, “reactive endobronchial cells” and disease-fighting cells called eosinophils that are seen in reactive airway disease. Plaintiff spent three days in the hospital before being discharged home and allowed to return to work on light duty with the police department. The complaint states that “since the injury, plaintiff has been unable to run, work full-time or participate in physical activities with his young daughter,” and that “the full extent of the injuries caused by defendants’ products is not yet known.”

The complaint asserts causes of action for strict liability and negligence against the various defendants. It is alleged that the vape cartridges were not reasonably safe and were not fit for human consumption “as a result of being flooded with particles.” The plaintiff similarly alleged that the vaporizer pen was defectively designed and that the distributor “knew or should have known that the product was not safe for human consumption.”

It is further alleged that the defendants are jointly and severally liable for the entire damages suffered by the plaintiff due to their alleged status as successive tortfeasors. This strategy of alleging joint-and-several liability is often seen in tobacco, asbestos and other “toxic tort” litigation, where the plaintiff sues all potential defendants and attempts to shift the burden to those defendants to disprove that each is partially responsible for the injuries alleged. Here, plaintiff may be using the joint-and-several liability strategy due to the fact that establishing medical causation against any specific vape manufacturer may prove difficult in the absence of reliable scientific evidence of what is causing these illnesses.

The plaintiff’s injuries appear similar to what was seen in the “popcorn lung” cases of a decade ago. Those cases were caused by diacetyl oil, an imitation “butter” used in popcorn products, which was vaporized and inhaled by people when they ate popcorn. The result was a wave of popcorn lung toxic tort litigation.

Update on Vape-Related Illnesses
According to the Centers for Disease Control, there are now more than 800 confirmed or probable cases of vape-related lipoid pneumonia, with 12 deaths across 10 states. However, health officials still do not know specifically what is making people sick and no common thread has been identified. Potential contaminants are suspected, including vitamin E acetate, an unregulated synthetic thickening agent used in some illicit-market THC and CBD vape products.

The recent increase in confirmed cases has confounded officials, though some believe that more cases are being identified due to heightened public awareness and specific questioning of patients by medical professionals. Until recently, few physicians have questioned patients specifically about vape use, and many vape consumers deny THC consumption due to social stigma or fear of prosecution. Many vape consumers also distinguish vaping from smoking and deny a history of “smoking” when asked. Recent media coverage and alerts by state and county health agencies have prompted physicians to question patients specifically about vape use when confronted with acute respiratory illness without an infectious cause.

Manufacturers of state-licensed and regulated cannabis products, including THC vape products, widely support meaningful regulation that would help to prevent health problems caused by illicit and unapproved products. A sensible public health strategy devised by the federal government likely could have prevented many of these illnesses and deaths by stopping unregulated illicit-market THC vape products from getting into the hands of consumers.

Until the cause of the recent illnesses and deaths is identified, all companies that manufacture and distribute THC and CBD vape products may be exposed to some risk of litigation.

Note: This article was published in the September 30, 2019, issue of Cannabis Business Executive.

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