Category: Litigation

Florida Top Court Limits Punitive Damages

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A 1999 law that limits punitive damages applies to plaintiffs in Engle progeny cases who died after that year, even though the class action was filed years before, Florida’s Supreme Court ruled on Nov. 18, according to Legal Newsline.
The verdict followed a case brought by Valton Sheffield, who was diagnosed with lung cancer and passed away in 2007. Sheffield’s widow recovered $5 million in punitive damages. Now, she will go back to the trial court for a new trial on punitive damages.
Sheffield’s widow argued that in 1994, when her husband was diagnosed, he had fully mature causes of action that were pursued by the Engle class and then by her, so the 1999 amendments didn’t apply to her.
“We disagree,” Florida Supreme Court Chief Justice Charles Canady wrote. “Because our caselaw establishes that wrongful death actions are distinct from personal injury actions and that there can be no wrongful death ‘cause of action’ absent a death, we conclude that the causes of action here arose when Mr. Sheffield passed away in 2007 and are thus plainly governed by the 1999 amendments.”
Filed in the 1990s, the Engle class action netted a huge verdict, but it was struck down in 2006. However, the liability findings against the tobacco companies were preserved as individuals were allowed to pursue their own cases afterward, as long as they filed by 2007.

December 6, 2021
Engle Lawyer Dies at 70

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Susan Rosenblatt, who with her husband and law partner, Stanley Rosenblatt, represented plaintiffs in the notorious Engle class-action lawsuit, died Nov. 14, reports The New York Times.
In the Engle case, The Rosenblatts argued that the tobacco industry had knowingly addicted smokers and failed to warn them adequately about the dangers of its products.
In 2000, a jury awarded several representative plaintiffs $12.7 million in compensatory damages and the whole class almost $145 billion in punitive damages—the largest such award in history.
In 2003 a Florida appeals panel threw it out, finding, among other things, that the case should not have been declared a class action because each smoker’s case is unique.
In 2006 the Florida Supreme Court ruled that individuals who wanted to pursue cases could invoke some of the original jury’s findings, including that smoking causes lung cancer, that nicotine in cigarettes is addictive and that the cigarette companies concealed information about smoking’s health effects.
December 6, 2021
Health Groups Demand Regular PMTA Updates

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The health groups that brought forward the submission deadline for U.S. premarket tobacco product applications (PMTAs) through litigation have asked the federal judge in that case to require the Food and Drug Administration to regularly report on its PMTA review process, reports Vaping360.
On Nov. 15, an attorney representing the plaintiffs sent a letter to U.S. District Court Judge Paul Grimm. The groups want Judge Grimm to force the FDA to explain its progress on PMTAs submitted by mass-market vaping brands.
“Plaintiffs will seek a modification that would require FDA to provide regular status reports to the Court giving FDA’s estimate of the date(s) by which it expects to complete its review of the Premarket Tobacco Product Applications (PMTAs) for all products for which PMTAs were filed by Juul, Vuse, NJOY, Blu, SMOK, Suorin, and any other brands that rank among the top 10 brands in market share, according to FDA,” wrote attorney Jeffrey Dubner on behalf of his clients.
Earlier in the review process, the FDA announced it would prioritize its resources to complete assessments of the most popular products first. But when the agency’s self-imposed one-year review deadline rolled around, the FDA had made no decisions on the products with the greatest market share.
To date, the FDA has ruled on only one mass-market vaping product—Vuse Solo, a dated product with limited market share.
In addition to asking Judge Grimm to monitor the FDA’s PMTA review progress on popular vape brands, the plaintiffs complain that the agency has not taken any enforcement actions against companies still waiting for a PMTA decision.
The plaintiffs in the lawsuit against the FDA are the American Academy of Pediatrics and its Maryland chapter, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids, and Truth Initiative.
December 1, 2021
Juul Settles Arizona Youth Marketing Case

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Juul Labs has agreed to pay $14.5 million to settle a lawsuit by Arizona accusing it of fueling a vaping epidemic by marketing its products to minors.
The settlement, announced Nov. 23 by the office of Arizona Attorney General Mark Brnovich, provides for $12.5 million to be set aside for anti-addiction programs. The remaining $2 million will go to a general consumer protection fund and litigation expenses.
As part of the consent judgment, pending court approval, Juul has committed to company-wide changes to its business practices to ensure that its products will not be marketed or sold to Arizona’s youth.
“Today’s settlement holds Juul accountable for its irresponsible marketing efforts that pushed Arizona minors toward nicotine and the addiction that follows,” said Arizona Attorney General Mark Brnovich in a statement. “Combatting the youth vaping epidemic remains a priority for our office with both our undercover Counter Strike program and zero tolerance for vaping companies that mislead or deceive.”
Juul said the settlement is another step in its ongoing effort to “reset” its company and applauded the Attorney General’s plan to deploy resources to address underage use. “We will continue working with federal and state stakeholders to advance a fully regulated, science-based marketplace for vapor products,” the company wrote in a statement. “As part of that process, we will continue to support Tobacco 21 and enforcement against illicit and illegally marketed products, such as certain disposables, that jeopardize the harm reduction potential of alternative vapor products.”
The company said it remains in discussions with other key stakeholders about litigation related to its past as part of its commitment to earn trust.
In June, Juul settled a similar case brought by North Carolina.
The company still faces more than 2,000 lawsuits, including from state and local governments, accusing the company of creating a spike in nicotine addiction among teens by using fruit-flavored liquid pods, social media campaigns and free giveaways.
Altria Group, which in 2018 acquired a 35 percent stake in Juul, is also named as a defendant in many of the lawsuits.
November 24, 2021
NC Juul Settlement to Fund Tobacco Control

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For the first time since 2012, North Carolina’s state budget plan includes funds to help prevent young people from getting addicted to nicotine, reports NC Health News.
Much of that money comes from a $40 million settlement that State Attorney Josh Stein reached this summer with Juul Labs following a lawsuit over the e-cigarette maker’s alleged targeting of young people.
In 1998, North Carolina and 45 other states settled litigation with to recover healthcare cost incurred for treating sick smokers. The four largest U.S. tobacco companies agreed to pay $206 billion over 25 years, and part of that money was to be spent by the states on smoking-cessation programs.
In reality, however, many states have directed their Master Settlement Agreement funds to other priorities. In 2013, when Republicans held control of both the North Carolina General Assembly chambers and the governor’s office, money stopped flowing to programs targeted at young smokers and nicotine users.
The budget that Governor Roy Cooper signed into law on Nov. 18 transfers $2 million from the first $13 million allotment from the Juul settlement to the attorney general’s office to cover litigation costs.
Another $4.4 million will go to tobacco cessation media campaigns, resources and programs to help children in middle school, high school and young adults quit vaping and using tobacco products after becoming addicted.
The budget allocates $3.3 million for “evidence-based media and education campaigns” geared toward prevention of e-cigarette and tobacco use and $1.1 million for data monitoring to better understand how young people are exposed to such products and evaluate programs designed to help users quit.
Nationally, more than two million children in middle school and high school used e-cigarettes in 2021, according to North Carolina health director Elizabeth Cuervo Tilson. Almost half of those high school students used e-cigarettes frequently, for as many as 20 out of 30 days. In North Carolina, Tilson added, a third of people in that age group used tobacco products, most of which are e-cigarettes.
November 24, 2021
Smoker Awarded $6 Million in Engle Progeny Case

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A jury in Jacksonville, Florida, USA, awarded a former smoker with lung disease $6 million in a case against R.J. Reynolds Tobacco Co., reports The Florida Times-Union.
The case is part of a crop of lawsuits filed after the Florida Supreme Court decertified a large class action, known as Engle, in 2006 and required smokers to sue individually for injuries that appeared between 1990 and 1996. The recent suit is unusual because it is uncommon for plaintiffs in those cases to be still alive.
“Many Engle case victims do not live to see case verdicts such as this one, so it’s gratifying that in this instance Mrs. Wydra is indeed here to experience justice served,” said Rod Smith, Partner, Avera & Smith, which helped secure the award, in a statement.
Born in 1947, Kathleen Wydra became a regular smoker while in high school in the early 1960s and smoked up to two packs of cigarettes per day. She quit smoking in 1998, following a diagnosis of COPD in the mid-1990s.
Jurors decided that Kathleen Wydra had been negligent in smoking and bore 35 percent of the fault for her injuries, but that R.J. Reynolds carried the other 65 percent of the blame.
They set the price of those injuries at $1.5 million for suffering, disability and harm already incurred, plus another $1.5 million for suffering still ahead of her.
They also found that R.J. Reynolds agreed to conceal information about smoking’s harmful effects or its addictive nature, and said the company should pay punitive damages, which accounted for the other $3 million judgment.
November 22, 2021
FDA Rebuked Over Slow Progress Menthol Ban

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On Nov. 17, Magistrate Judge Kandis A. Westmore of the United States District Court in the Northern District of California issued a ruling putting the Food and Drug Administration on notice that further delay in issuing a proposed rule on ending the sale of menthol-flavored cigarettes could be constructed as “undue delay” under the Administrative Procedure Act.
In April 2021, the FDA announced that it would begin the rulemaking process in response to a citizen’s petition filed in 2013. The announcement followed a lawsuit filed by the African American Tobacco Control Leadership Council (AATCLC), Action of Smoking and Health, the American Medical Association, and the National Medical Association. Filed on June 17, 2020, the lawsuit asserted that the FDA had failed to act on menthol cigarettes contrary to the duties and mandate imposed by the 2009 Family Smoking Prevention and Tobacco Control Act.
“We applaud District Court Judge Westmore for keeping the FDA’s feet to the fire,” explained AATCLC Co-Chair Phillip Gardiner. “The Black community has been waiting far too long for the FDA to act and protect the health of our people. Ending the sale of menthol cigarettes will be one of the most impactful steps this country can take to save African American lives and advance health equity.”
“We’re very pleased that Judge Westmore agreed that the FDA’s April 29 announcement is a beginning, not an end, for complying with the lawsuit,” said Laurent Huber, executive director of Action on Smoking and Health. “Unfortunately, when it comes to tobacco the FDA has rarely met a deadline, even a self-imposed one. Every delay costs lives.”
Each year, more than 72,000 African Americans are diagnosed with a tobacco-related illness and more than 45,000 die from a tobacco-induced disease, according to the AATCLT. Eighty-five percent of all African American smokers smoke menthol cigarettes compared to 29 percent of White smokers. Menthol cigarettes increase addiction and make it harder to quit. More than 70 percent of African American smokers want to quit, and more than 60 percent made a quit attempt in the previous year. However, African American smokers are less likely than White smokers to successfully quit smoking.
November 21, 2021
Quebec: Court Upholds Vape Ad Ban

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A panel of three Court of Appeals judges unanimously reversed the parts of a 2019 Quebec Superior Court decision that struck down some provisions of the Tobacco Control Act pertaining to vaping products, reports Global News.
The Quebec Superior Court had ruled that some of the province’s restrictions on vaping products, such as banning advertising, went too far because they could possibly prevent smokers from switching to noncombustible products.
The appeals court judges cited research from the World Health Organization and other experts regarding the rise in youth vaping rates, ruling that the Quebec government has the right to limit potential effects of advertising on youth and nonsmokers.
“In this case, it was therefore reasonable for the legislator to intervene to limit the potential effect of electronic cigarette advertising, especially on young people,” Justice Benoit Moore wrote on behalf of the panel. “The risks associated with the fact that the vaping industry is evolving and that it is gradually being taken over by the tobacco companies cannot be excluded from the analysis of the legislator.”
The court also upheld the right to ban vaping product demonstrations inside shops or specialized clinics.
November 18, 2021
North Carolina to Investigate Puff Bar

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North Carolina Attorney General Josh Stein on Nov. 16 announced “major actions” against the e-cigarette industry due to ongoing concerns about kid-friendly flavors, youth marketing and poor age verification.
In addition to suing Juul Labs’ founders James Monsees and Adam Bowen, Stein commenced a statewide investigation into Puff Bar and other e-cigarette manufacturers, distributors and retailers.
“We made major progress in protecting young people from e-cigarette addiction when we secured a court order dramatically changing the way Juul does business and recovering $40 million to help kids conquer their nicotine addiction. But many of the billions Juul made from addicting kids to nicotine are now in the personal accounts of its founders and early investors. The people behind this company must be held accountable and pay to clean up the mess they made,” Stein said in a statement.
“At the same time, the market Juul created still exists, and other companies are filling the vacuum. We are actively investigating Puff Bar and other companies at all stages of the distribution chain, from manufacturers to retailers and everything in between, to ensure they are not profiting off kids. Where I find illegal behavior, I will not hesitate to take legal action.”
As Juul discontinued some its flavored products in the U.S., Puff Bar has emerged as the vape of choice among young people. In 2020, the Food and Drug Administration told Puff Bar to stop selling its flavored vaporizers as part of a broader crackdown on underage vaping. However, the company resumed sales in early 2021 with products using synthetic nicotine, which the company believes are outside the FDA remit. In response, the agency launched an investigation of the redesigned Puff Bar.
Puff Bar sales in retail stores tracked by Nielsen totaled $156 million for the year ended Sept. 25, according to Goldman Sachs, although it is unclear how many of those sales are counterfeit products. In a federal survey released in September, 26 percent of high school vapers said they used Puff Bar. Among middle school e-cigarette users, 30 percent reported that their generic brand was Puff Bar.
November 17, 2021
Reynolds Settles Vuse Patent Suit Before Trial

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R.J. Reynolds (RJR) has settled Fuma International’s claims that Reynold’s Vuse products infringed on the manufacturer’s e-cigarette patents, reports Reuters. RJR settled the suit just four days before the trial was slated to begin, according to a Thursday filing in North Carolina federal court.
U.S. District Judge Catherine Eagles found in May that RJR’s products infringed parts of two Fuma patents. A jury in Greensboro, North Carolina, USA, was set to consider on Nov. 15 whether RJR infringed additional parts of one of the patents, whether the patents were valid, and what damages RJR owed, among other things.
Fuma sued in 2019 for infringing patents related to an e-cigarette design with a cartridge and power source. The complaint said RJR copied Fuma’s design after meeting with Fuma about its e-cigarette technology in 2010.
Fuma asked for up to $135 million in damages, according to court filings.
Vuse is one of the most popular e-cigarette brands in the U.S. RJR introduced the Vuse Solo in 2013 and the Vuse Ciro in 2017. The U.S. Food and Drug Administration gave RJR permission to market Solo in October, its first-ever authorization for a vaping product.
The tobacco giant argued the relevant parts of the patents were invalid based on prior art that disclosed the same design, according to Reuters. Details of the settlement weren’t immediately available.
November 14, 2021