October 24, 2019 Articles

Outbreak of Severe Pulmonary Disease Linked to E-Cigarette Use: The Makings of a Mass Tort?

With the public being advised to stop vaping altogether, and the federal government and several states contemplating outright bans of flavored e-cigarettes, the recipe for mass tort litigation is taking shape.

By Brendan H. Fitzpatrick and Jessica P. Butkera

Government regulators and the media continue to direct significant attention to the e-cigarette industry. The focus, however, recently and rather quickly shifted from combatting the epidemic that arose from alleged youth-targeted marketing in the “vaping” industry to addressing a sudden outburst of mysterious illnesses arising over the past few months that appear correlated to e-cigarette and marijuana vaping. There are early indications that the use of e-cigarettes and vape pens may cause lung injury, including acute, severe respiratory distress; respiratory failure; and even death. The Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), state and local health departments, and private research institutions are rapidly investigating a multistate outbreak of a mysterious lung illness associated with e-cigarette use that is receiving national news coverage from The Today Show to the New York Times. Recently published studies support the connection between pulmonary illness and e-cigarette use, but these are far from conclusive and further study is necessary. In fact, investigators have, as of this writing, not yet identified any specific e-cigarette product (devices, liquids, refill pods, or cartridges) or substance linked to all of the cases. However, the massive popularity of such devices, combined with these early indications that vaping is a commonality among the reported cases of pulmonary illness, creates the potential for significant litigation. 

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