A variety of peer-reviewed studies argue the connection between the use and behavior of vaping products and devices and how such activities can exacerbate COVID-19.
Filter magazine published a tremendous analysis of the debate related to vaping and COVID-19. Authors Annie Kleykamp and Helen Redmond point to several instances in the venue of peer-reviewed research. Nicotine & Tobacco Research published an editorial by journal editor-in-chief Marcus Munafò and deputy editor Richard Edwards arguing that there’s very little evidence to make effective claims about vaping and COVID-19.
If we translate such observations to the realm of litigation, claiming exposure liability in a lawsuit will not stand in a U.S. court. An Oct. 26 analysis by lawyers for the DLA Piper law firm argues that vaping and COVID-19 cannot be a viable purpose for product liability litigation from select plaintiff classes.
“[T]he very newness of the disease (COVID-19), and our accordingly limited understanding of the mechanisms and epidemiology of the disease, raise a question as to whether plaintiffs bringing cases alleging a nexus between vaping and COVID-19 will be able to prove causality, as required under tort law principles, or if instead, they will able to prove only what is, in essence, plausibility,” the analysis says.
Legal standing and veracity
Since the COVID-19 pandemic began, there are vaping and COVID-19 related liability claims currently pending in federal courts across the United States.
People who contracted COVID-19 who claim vaping put them at greater risk of more serious health complications were added to asserted claims in multi-district litigation (MDL) case against Juul Labs.
The analysis notes that the Juul MDL case could have no standing in federal court, based on the lawsuit’s information as veracity for their arguments.
As mentioned early in this column, the epidemiological evidence is merely observational and is not necessarily proof of product liability amidst the pandemic.
“There is considerably more data regarding cigarette smoking and COVID-19 than there is regarding vaping and the disease – there are far more cigarette smokers in the world than there are vapers, and patient data is far more likely to include information regarding smoking status than vaping status,” reads the analysis. “Therefore, to date, most claims in the scientific and medical community that vaping increases the susceptibility to, or the severity of, COVID-19 are based on studies of nicotine and/or cigarette smoking, not studies of vaping itself.”
The analysis goes on:
So how is a court to evaluate a claim like the one in the JUUL MDL? The specific allegation in the master complaint is that “JUUL users are… at greater risk of suffering more serious complications if they contract the coronavirus.” The master complaint does not refer to any scientific studies purporting to describe a causal relationship between vaping and the severity of COVID-19. Rather, the complaint points to (i) a statement by Michael Felberbaum, a Food and Drug Administration spokesman, who commented in March 2020 that “[e]-cigarettes can damage lung cells,” and expose people who “smoke and/or vape tobacco or nicotine-containing products” to more “serious complications from COVID-19” (though it should be noted that the FDA subsequently modified this position, stating that it was unknown “whether [vape product] exposure increase[s] the risk of COVID-19”, and (ii) a statement from the National Institute on Drug Abuse that COVID-19 posed an “especially serious threat” to persons who vape “[b]ecause [COVID-19] attacks the lungs.”
In a courtroom, these assertions must be analyzed not in the context of public health, but of tort law. To establish general causation, a plaintiff must prove that it is more probable than not that an exposure is capable of causing or contributing to the disease in question; a mere showing that the relationship is plausible is legally insufficient. Further, “[t]o prove general causation, scientists frequently rely on epidemiological data to first establish an association between a chemical and a disease or set of symptoms which they then probe to determine if the association warrants being described as cause-effect relationship.”
By this standard, assertions like those in the JUUL MDL appear to be insufficient to support a viable claim. There is no epidemiological or toxicological data that might help assess the question of whether it is “more likely than not” that vaping causes, or increases the severity of, COVID-19. Standing alone, the assertions do not meet the tort law requirement of an in-depth assessment of causality. The assertions are classic statements of plausibility, not of causation. However, while cases always unfold in real time, in this case, the science is doing so as well. Whether courts will allow cases to proceed, on the theory that as the cases progress the science will as well, remains to be seen.
No proof “beyond speculation”
Jianlin Song, a medical doctor and an attorney with the law firm Wilson Elser, wrote a similar analysis early this year for The National Law Review.
“[Studies] surveying the vaping-related conversation on Twitter identified that topics such as whether vapers are more susceptible to COVID-19 infections and should be prioritized in COVID-19 testing were the most-discussed concerns among vapers during this pandemic,” Song wrote. “A close examination of these online claims and concerns, however, reveals very little scientific basis beyond speculation.”
Song adds: “The COVID-19 pandemic presents an opportunity for plaintiffs’ attorneys to manufacture another wave of Roundup type litigation. Articles purporting to analyze data to show a connection likely are on their way.”
While there is a high probability that vaping could place people at higher risks, there is still no official tabulation of that information.
This means litigators could push a wave of litigation against e-cigarette manufacturers without the appropriate medical evidence to rely on. This has yet to come to fruition.
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