e-cigarette expert witnessCases against the e-cigarette industry are piling up, and this trend is likely to continue, as more consumers are attracted to the products in that market. The cases are largely product liability cases, but other types also exist, and there are a number of implications for this explosion of cases.

Discussion:

As the National Law Journal explains, “ Litigators out there are looking for experts in the e-cigarette industry as more and more electronic cigarette cases are piling up, ranging from product liability to patents, trademark to taxes. We believe this trend will continue, particularly as the growing e-cigarette market continues to attract the attention and support of Big Tobacco. Whether we like it or not, there’s a new nicotine in town and, at IMS, we’re always looking to keep you at the forefront of new litigation.” “E-Cigarette Litigation is Lighting Up,” May 24, 2017.

Expert witnesses of many kinds will be of use in this type of litigation. In product liability cases, individuals from engineers to product liability experts will be called for. Intellectual property cases will call for experts in patents and trademark law. In addition, experts who know about e-cigarettes, in terms of their design, how they are manufactured, the engineering behind them, and other specifics, will likely be called for.

One reason why e-cigarette litigation is on the rise is because Big Tobacco has gotten involved. E-cigarettes have been marketed as a safer alternative to conventional cigarettes and tobacco products, so large tobacco manufacturers have gotten on board, producing their own versions of e-cigarettes. In particular, “ R.J. Reynolds Vapor Company, a subsidiary of Reynolds America, with its popular e-cigarette VUSE, British American Tobacco (BAT, the largest tobacco company in Europe) with Vype and Altria (formerly Philip Morris) with MarkTen, to name just a few, are now dominating  e-cigarette sales. According to Newsweek, e-cigarette sales worldwide were $4-5 billion in 2014. A Forbes article sets expectations of future sales growth of 20% percent year-over-year going forward.” Id.

A hot button issue that has litigants rushing to the courtrooms deals with the batteries e-cigarettes contain. To simulate the experience of smoking, e-cigarettes are equipped with lithium batteries that are used to emulate a inhaling and exhaling action occurring in a conventional cigarette. However, in a number of cases, parties have alleged that those batteries have exploded, causing serious injuries, and the industry will be forced to grapple with these cases. Product liability experts and engineers will be invaluable in assessing the merits of these particular claims.

There may also eventually be product liability cases of a slightly different nature. Scientists do not appear to have a consensus on the health risks (or lack thereof) associated with e-cigarettes. Many consumers view them as a safer and healthier alternative than traditional tobacco products. As more scientific opinions emerge and if users of e-cigarettes experience health-related injuries, there may be product liability suits that are akin to the ones against big tobacco several decades ago. In this instance, many experts, from medical professionals to competing scientists will be needed to establish or refute elements of such lawsuits. Such experts will be critical for either side, and given the differing scientific opinions that currently exist, it may be wise for e-cigarette manufacturers to retain some scientific experts to deal with such potential impending claims. Currently, there is also not a law that requires e-cigarettes to be labeled in the way regular tobacco products are, with Surgeon General’s warnings and the like. If there is a causal link established by credible scientists between e-cigarettes and health hazards, such cases may be filed, with the argument being made that consumers have a right to know about the risks they will encounter if such products are indeed harmful to one’s health. Such cases would require medical experts, scientists, and potentially experts in issues such as labeling and government regulation, as well. It is not unthinkable that the federal government could be named as a prospective defendant, if consumers are able to establish that the government owed the public a duty to warn them of the risks of using such products. Tobacco companies or other entities who manufacture e-cigarettes might also be prospective targets in such litigation, as the duty to warn issue is one that could be raised against sellers, as well. The experts would clearly play a role in such cases.

Another interesting allegation deals with the type of marketing  e-cigarette manufacturers use and whether it is geared towards youth.  Many of the nicotine juice offerings include flavors like cotton candy, watermelon, and marshmallow.  Some nicotine juices even mimic children’s cereals and candies, with flavors like “Fruit Loops” and “gummi bears.” As a result, the industry has been beleaguered by lawsuits claiming that it is targeting adolescents as potential users. As one legal analyst expressed, “According to the Centers for Disease Control and Prevention, use of electronic cigarettes by high school students increased from 1.5% in 2011 to 16% in 2015. If e-cigarette related diseases begin to rise in our nation’s youth, you can be sure class action suits like those filed in the 90’s against Big Tobacco, pointing the finger at adolescent-targeted marketing, will follow.” Id. Cases of this nature will involve marketing and class-action expert witnesses, to name a few. Manufacturers of these flavors would be wise to have expert witnesses available prior to being named as defendants, as they will need their expertise in parsing out these issues before juries.

In addition, patent disputes are arising in the context of e-cigarettes. According to one legal commentator, “Each of the major players in the e-cigarette market—Reynolds, Altria, Fontem, etc.—have spent the last few years buried in patent litigation relating to various component parts of their e-cigarettes. While Fontem and Nu Mark, a subsidiary of Altria, resolved many of their claims in a publicized settlement earlier this year, Reynolds and Fontem remain steeped in litigation, requesting Inter Partes Review over several of their e-cigarette patents under 35 U.S.C. § 341(a).” Id. Patent and design experts will be critical in parsing out these claims. General intellectual property experts may also be of use.

Conclusion:

Regardless of what the issue is, quite a bit of litigation surrounding e-cigarettes is currently ongoing, and it seems this trend is likely to continue. In each instance, attorneys for both sides would be wise to rely upon the skills of consulting and testifying expert witnesses to help prepare for potential lawsuits and persuade courts that their arguments should prevail.