Marijuana Law, Policy, and Authority

Why We Won’t Learn Much from a New Products Liability Lawsuit Against Marijuana Vape Manufacturers

Posted by on Friday, October 4, 2019 in News, Updates.

A plaintiff has just filed a products liability lawsuit against several companies that manufacture (or sell) marijuana vape products. The plaintiff blames the Defendants’ products for a lung illness he has recently experienced. The complaint in Wilcoxen v. Canna Brand Solutions, LLC, et al., was filed in Washington State court on September 23, 2019. Several news outlets claim this is the first lawsuit stemming from the recent health scares over vaping – I blogged about those health concerns earlier here.

In this post, I’ll provide a few details and observations on the lawsuit, which names six Defendants. For curious readers, here is a full copy of the complaint (it’s only 14 pages): Complaint-Charles_Wilcoxen-v-Canna_Brand_Solutions_LLC-searchable

To begin, here are the facts of the case, according to Plaintiff:

“4.1 Plaintiff is a 44-year-old man, married with children. He served in the United States Army for 17 years, including Special Forces. He currently serves as a police officer. Until injured by vaping, Plaintiff was a runner. He was active, fit, and healthy.

4.2 On or around the month of January, 2018, Plaintiff purchased a vaporizer from a store. . . . Plaintiff believes the vaporizer he purchased and used was manufactured by Ccell, a Chinese corporation.

. . .

4.4 Defendant Canna Brand Solutions is CCell’s distributor of “pens”/”batteries” in Washington State.
. . .

4.6 Between January of 2018 and September of 2019, Plaintiff purchased and consumed vape pods containing THC. He purchased these pods from stores and information on the packages indicated the pods were manufactured by Defendants Conscious Cannabis, Rainbow’s Aloft, Leafwerx, MFused, and Janes Garden.

4.8 On Wednesday, September 11, 2019, Plaintiff vaped. He had severe wheezing that night. He woke up Thursday morning still wheezing. He also suffered from a fever and nausea. This condition lasted through Friday. On Saturday, still feeling ill, he went to work, but struggled. On Sunday, he called in sick.

4.9 Monday Morning, he was worse. He had difficulty breathing. His wife drove him to the emergency room at Kaiser Permanente. The doctors ran a CT scan and decided to transfer him by ambulance to Saint Joseph’s Medical Center.

4.10 Doctors at Saint Joseph’s performed a bronchoscopy. This is a procedure for examining lungs and airways. The pathology report noted “numerous lipid-laden macrophages” on his lungs, “reactive endobronchial cells,” and disease-fighting white blood cells, “including eosinophils.” In summary, the medical evidence indicates a lipoid pneumonia caused by vaping.

4.11 Plaintiff spent three days in the hospital. Once home, he was on bed rest. . . .

4.12 Since the injury, Plaintiff has been unable to run, work full time, or participate in physical activities with his young daughter. The full extent of the injuries caused by Defendants’ products is not yet known.”

The remainder of the complaint alleges that the Defendants acted negligently or are strictly liable for defects in the design and / or manufacture of the vaping products Plaintiff consumed and which Plaintiff claims caused his lung illness.

Let me make two observations about the case.

1. We probably won’t learn anything new about the current vaping health scare from this case . . . .

The complaint is short on details (to put it mildly). It does not explain (or even hint) why the Plaintiff believes the Defendants’ products were defective. Instead, it makes only conclusory allegations against the Defendants. For example, here are the paragraphs of the complaint alleging negligence on the part of Defendant Conscious Cannabis:

“7.2 Defendant Conscious Cannabis LLC had a duty to use reasonable care in handling, preparation, producing, or constructing vape pods for Plaintiff, including all of its component parts, such that the vape pod would be free of defects, and fit for human consumption.

7.3 Defendant Conscious Cannabis had a duty to understand the risks inherent in the sale of vape pods, and to protect its customers accordingly.

7.4 Defendant Conscious Cannabis breached its duties listed above.

7.5 The breach of Defendant Conscious Cannabis’ duties were the proximate cause of injuries and damages suffered by Plaintiff as alleged herein below.”

And here are the paragraphs of the complaint claiming that Conscious Cannabis is strictly liable for Plaintiff’s injuries:

“8.5 As a result of being flooded with particles from Defendant Conscious Cannabis product, the relevant product was not reasonably safe in construction when it left the defendant’s control on the grounds that (a) the product deviated in a material way from design specifications or performance standards, and (b) it deviated in some material way from other identical units of the same product line.

8.6 As a result of being flooded with particles from Defendant Conscious Cannabis’ product, the relevant product was unsafe to an extent beyond that contemplated by the ordinary consumer.

8.7 The defendant is strictly liable to the Plaintiff for the harm proximately caused by the fact that the products it manufactured, and that the Plaintiff did consume as intended, were defective and not reasonably safe.”

The complaint makes identical bare-bones allegations against four of the five other Defendants (I’ll get to the sixth in a moment).

To be sure, it’s not unusual for a complaint to be terse – it’s just the first salvo in lawsuit. The complaint also might be legally sufficient, at least in the Washington state courts. (Federal courts impose heightened pleading requirements that require plaintiffs to go beyond just reciting magic words like “Defendant was negligent and caused my injury.”)

Unfortunately, however, the terseness of the complaint means that we cannot learn much (if anything) from it that would help us solve the puzzles I highlighted in my earlier post on the health scares surrounding vaping.

Nor are we likely to learn anything anytime soon from this case. This case may never go to trial – it could be dismissed before trial for any number of reasons, or it could be settled confidentially. Even if the case does go to trial, it will be a long time – as in a loooooonnnnnnngggggg time – before we hear any witnesses or expert reports that opine on the precise cause of Plaintiff’s illness. For example, the court has tentatively scheduled trial for September 2020 – nearly one year from now – and trial dates commonly get pushed back (often substantially).

While litigation can boost our knowledge of public health risks, it can take years if not decades to enlighten us (as litigation against tobacco companies demonstrated). Hopefully public health officials will be able to pinpoint the causes of these vaping related illnesses well before this (or any other) litigation concludes.

2. The case against the last Defendant (Canna Brand) will be the most difficult

The case against the five Defendants who actually made marijuana oils for use in vaporizers is relatively straightforward. Against those Defendants, the Plaintiff relies on a section of Washington’s Revised Code that specifies the liability of manufacturers for defects in the design and / or manufacture of their products. In relevant part, it provides that:

“(1) A product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.

(a) A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product . . .

(b) A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.

(c) A product is not reasonably safe because adequate warnings or instructions were not provided after the product was manufactured where a manufacturer learned or where a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured. In such a case, the manufacturer is under a duty to act with regard to issuing warnings or instructions concerning the danger in the manner that a reasonably prudent manufacturer would act in the same or similar circumstances. This duty is satisfied if the manufacturer exercises reasonable care to inform product users.

(2) A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s express warranty or to the implied warranties under [Washington law].

(a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.

(b) A product does not conform to the express warranty of the manufacturer if it is made part of the basis of the bargain and relates to a material fact or facts concerning the product and the express warranty proved to be untrue.

(3) In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.

Wash. Rev. Code § 7.72.030. Although the complaint does not allege a failure to warn, Sections 7.72.030(1) and (2) make that an additional basis for imposing liability on a manufacturer (and I suppose the Plaintiff could amend his complaint to add that theory of liability, alongside the defective design / manufacture theories).

But the case against the sixth Defendant — Canna Brand — is a lot more complicated, for two reasons. For one thing, Canna Brand did not actually make anything Plaintiff used. Instead, Canna Brand distributed the vaping devices (like heating elements) made by CCell and used by Plaintiff . However, Washington state law limits the liability of distributors of defective products. In particular, Section 7.72.040(1) states that a distributor (seller)

“is liable to the claimant only if the claimant’s harm was proximately caused by:

(a) The negligence of such product seller; or

(b) Breach of an express warranty made by such product seller; or

(c) The intentional misrepresentation of facts about the product by such product seller or the intentional concealment of information about the product by such product seller.”

Plaintiff has not claimed that Canna Brands is liable under any of the grounds recognized by Section 7.72.040(1) – i.e., Plaintiff has not claimed that Canna Brand intentionally concealed anything about the CCell product it sold to Plaintiff.

Rather, Plaintiff is suing Canna Brand under Section 7.72.040(2), which makes a distributor liable for the misdeeds of the manufacturer (here, CCell) of defective goods it sells if (among other reasons) “(b) The court determines that it is highly probable that the claimant would be unable to enforce a judgment against any manufacturer. . .”

Interestingly, the complaint claims that CCell itself was negligent in designing / manufacturing its vaping devices. However, it does not name CCell as a Defendant because it claims that it would be impossible to enforce any judgment against the company. From the complaint:

“4.3 The Chinese government has a consistent history of refusing to enforce judgments from courts in the United States. This allows Chinese companies doing business in the United States to evade liability for harming Americans.”

and later,

“5.5 As a Chinese corporation, it is highly probable that the claimant, Plaintiff, will be unable to enforce any judgment against [CCell].”

I am not sure whether such a bald accusation that all Chinese companies are beyond the reach of American courts will satisfy Plaintiff’s burden under Section 7.72.040(2)(b). Among other things, CCell might have an American bank account or even an American subsidiary that could ease the path to enforcing any judgment against it.

But the suit against Canna Brand standing in the shoes of CCell runs into a second problem as well. CCell might not be the proximate cause of Plaintiff’s injury. After all, CCell only made the devices Plaintiff used to vape. It did not necessarily know what, exactly, Plaintiff would vape with those devices. Thus, if Plaintiff’s injuries were caused by the particular product(s) he choose to put into CCell’s devices – i.e., marijuana oils made by the first five Defendants – rather than by the devices themselves, CCell might be off the hook. And if CCell could escape liability, so too could Canna Brand.

That’s it for now. I’ll blog more about this case if there are any noteworthy developments. I very briefly note products liability in my book (see page 500 n.5), but regardless of what happens in this suit, I expect it will become a bigger issue going forward.

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