Over the past two years, we’ve seen how the Opioid litigation has grown, and we questioned if this would be the next mass tort, similar to tobacco and asbestos. We now have another potential mass tort – Electronic Cigarettes.  We recently read an article by Jessica Butkera at Goldberg Segalla in CLM magazine, and also attended a webinar hosted by the author.

Articles and blog posts such as these indicate that there are several factors that foreshadow a mass tort which include:

1. Widespread exposure across a population
2. A multibillion-dollar industry
3. A link between a product and injury

Vaping, or e-cigarette use, checks each of these boxes. For starters, there is a large population who had exposure– anyone who has used e-cigarettes.  One of the scariest things about the exposed population is not just its size, but that minors and young adults make up a large portion of this population.  According to Butkera’s article, “the number of middle and high school students actively using e-cigarettes went from 2.1 million students in 2017 to 3.62 million students in 2018”.  As of February 2019, the number of middle and high school students actively using e-cigarettes in the United States had risen to 4.9 million students.

In fact, a recent survey conducted by the National Institute of Health showed that 27% of high school seniors vape and 11% of all eighth graders participate in vaping activities.  In addition to the e-cigarette use by minors, a study in the Journal of the American Medical Association also shows an increase in e-cigarette use in young adults (ages 18-24) from 5.2% in 2017 to 7.62% in 2018.  According to this report, that percentage increase equates to 700,000 new young adult users in one year.  The study also found no significant change in e-cigarette usage in adults aged 25-44 and a decrease in usage for adults aged 45 and older.

Next, we looked at the size of the industry.  The vaping industry has also become a multibillion-dollar industry over the past few years. Butkera states that in 2018 the “e-cigarette market was worth $11.3 billion and may reach $18.2 billion by 2024.”  E-cigarette sales in the United States alone reached $4.5 billion by end the of 3^rd quarter 2019.  Overall, retail sales of e-cigarettes saw almost a 50% increase in a single year time period from 2016 to 2017. 

Lastly, we looked for the link between a product and injury.  Over the past year, we have seen more and more cases of lung disease associated with e-cigarettes in the news.  The Center for Disease Control and Prevention (CDC) has given the name EVALI (E-cigarette or Vaping Product Use Associated Lung Injury) to the lung disease linked to vaping and an additive found in vaping products, vitamin E acetate, has been strongly linked to this disease.  As of January 21, 2020, the CDC reported over 2,700 cases of EVALI across all states, the District of Columbia, Puerto Rico, and the US Virgin Islands. This figure includes 60 deaths linked to the disease.

To date, there have been several product liability cases related to e-cigarettes and we are just beginning to see personal injury lawsuits, class actions and wrongful death suits.  Butkera predicts that many different types of defendants are at risk, not just the manufacturers of the e-cigarettes, but the distributors and retailers as well.  Also, as with the talc and ovarian cancer lawsuits we have seen recently, e-cigarette lawsuits filings are happening before the science around the causation of the disease is fully known or vetted. There is not an expectation that the plaintiff counsel will wait to file more lawsuits before the science comes out regarding vaping.

How can possible defendants associated with e-cigarettes prepare for the possibility of an onslaught of personal injury lawsuits? As with all mass torts, having data gathered and maintained in a useable way is paramount to successfully navigating these lawsuits.  Not only is it important to track data about each lawsuit, plaintiff, and alleged exposure, but also to maintain a detailed record of defense costs incurred. 

Having information like this easily accessible will help defendants and their counsel effectively and efficiently make strategic decisions and defend the cases in the best possible way.  It will also help when it comes time for these defendants to collect from their insurance companies.  As we always say in these cases, it is best to keep data and documents clean and organized from the beginning to save time and money trying to recreate proper records once it becomes a problem.