February 2017

e-cigarette-1301664__340Recently, the Food and Drug Administration has regulated electronic cigarettes, making it illegal to sell e-cigarettes to anyone under 18. Similarly, California recently enacted legislation requiring a minimum purchase age of 21 for e-cigarettes.

Tobacco critic Stanton Glantz argued in favor of the minimum purchase age, stating that “There’s no question that e-cigarettes aren’t as dangerous as cigarettes are,” he says, “but they’re still dangerous.” Federal regulations have also prohibited e-cigarette retailers from providing free samples to customers and state regulations have required retailers to register and obtain a license.

E-cigarettes contain nicotine, flavoring, and a propylene glycol (a food additive classified as “generally recognized as safe” by the FDA). However, e-cigarettes do not contain tobacco, the main carcinogen in traditional cigarettes.

Is Vaping a Safe Way to Quit?

In contrast to the American approach, in the United Kingdom, “British health officials released what was billed as a ‘landmark review’ of electronic cigarettes. In it, e-cigarettes were described as “‘around 95 percent safer than smoking’” and “the study encouraged e-cigs to be labeled as an effective means of helping smokers curb and kick the deadly habit.”

A cutting-edge study funded by Cancer Research UK has demonstrated that if smokers completely quit smoking tobacco and switch to vaping, they will substantially reduce their intake of toxic chemicals and carcinogens. According to lead research Lion Shahab, a senior lecturer at University College London, the “study shows that bodily level exposure to established and important smoking-related carcinogens and toxicants is reduced by between 56 percent to 97 percent in long-term e-cigarette users who have stopped smoking completely, compared with tobacco cigarette smokers.”

According to Dr. Ed Stephens, senior research fellow at the University of St. Andrews, “This paper confirms the potential benefits of e-cigarettes and contributes to the growing body of evidence that the risk from chemicals in vapour is far lower than in cigarette smoke when an e-cigarette is used as the manufacturer intended.”

Make Vaping Great Again?

Although there is now scientific evidence that vaping represents a significantly safer alternative to smoking, regulators and anti-smoking advocates are continuing their efforts to regulate electronic cigarettes.

Given the lack of scientific consensus on the issue of the risks involved with e-cigarettes and the potential to save the lives of cigarette smokers, regulators should be encouraged not to enact any additional regulations that could decrease access to e-cigarettes and should consider reevaluating or repealing existing regulations. American regulators should adopt the “light touch” approach advocated by Cancer Research UK.

Meanwhile, some trade groups have expressed cautious optimism that the FDA will delay implementation of e-cigarette regulation in the Trump administration.

The issue continues to be hotly debated, leaving e-cigarette manufacturers, retailers, and their insurers to educate themselves regarding the applicable laws and regulations and put effective policies in place to guard against regulatory violations and lawsuits.
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Court RulingThe Georgia Supreme Court has weighed-in on the issue of manufacturers’ liability for take-home exposure cases. In the opinion recently issued in CertainTeed Corporation v. Fletcher, the Court drew an unexpected distinction between a manufacturer’s duty to issue warnings and its responsibility to keep harmful products out of the stream of commerce. Justice Carol Hunstein, writing for the Court, concludes that while manufacturers do not generally have a duty to warn third parties of the possible hazards of asbestos dust from its products, a manufacturer does bear the burden of proving that its product, as designed, is not defective. The opinion comes as a bit of surprise, as it seems to contradict a prior opinion issued by the Court, wherein it held that an employer owes no duty to third-party, non-employees, who come into contact with its employees’ asbestos-tainted work clothing at locations away from the work place.

Plaintiff Marcelle Fletcher filed suit in Georgia after being diagnosed with malignant pleural mesothelioma. In her complaint, Fletcher alleges that years of laundering her father’s asbestos-tainted clothing caused her to come into contact with asbestos from cement water pipe manufactured by CertainTeed, which eventually caused her mesothelioma. When the trial court granted CertainTeed’s motion for summary judgment on Fletcher’s failure-to-warn and product defect claims, Fletcher appealed. The appellate court reversed and the Georgia Supreme Court thereafter granted review of CertainTeed’s appeal.

On appeal, the Supreme Court held that CertainTeed, as a manufacturer, owed no duty to warn Fletcher of the possible hazards of asbestos dust from its products. In reaching its conclusion the Court cited public policy concerns that could result from an expansion of the class of individuals protected by a manufacturer’s duty to warn, stating that any such duty placed on the manufacturer would ultimately shift to the product user. Looking at the facts in the case before it, the Court determined that while “Fletcher would not have seen any warning label placed on CertainTeed’s products … a warning could have permitted her father to take steps to mitigate any danger posed by the asbestos dust on his clothing.” The Court nevertheless determined that such a conclusion would be “problematic” in that it effectively makes the product-user responsible for protecting those with whom he or she comes into contact, whether those individuals were members of the same household or members of the same community. The Court reasoned that imposing such an indefinite and imprecise duty on CertainTeed to warn all individuals in Fletcher’s position would be unreasonable, classifying the scope and mechanism of such warnings as “endless.”

Regarding Fletcher’s design defect claim, however, the Supreme Court upheld the appellate court’s reversal of summary judgment, finding that CertainTeed had failed to prove that its product was not defectively designed. The Court’s holding seems, at first, to contradict its 2005 decision in CSK Trans. v. Williams, 278 Ga. 888, 608 SE 2d 208 (2005), wherein the Court barred take-home exposure claims against employers, holding that employers did not owe a
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battleshipIt is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to parties.  Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses.  These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more frequently and award lower verdicts, means that plaintiffs would often rather file their cases in state court and conversely, defendants often prefer to litigate these cases in federal court. Consequently, when possible, defendants often will remove a case filed in state court to the applicable U.S. District Court where the state action was pending. One such method of removal is found in 28 U.S.C. § 1442(a)(1), the federal-officer removal statute. Specifically, § 1442(a)(1) allows a defendant that acted under any United States agency or officer to remove a plaintiff’s suit to federal court if any of the alleged claims or defenses relate to “any act under color of such office.” This is a frequently used tool of military contractors to get their government contractor defense heard by a federal court.

Government contractor immunity is a recognized federal defense based on public policy (See Boyle v. United Technologies Corp., 487 U.S. 500 (1988)). It is an offshoot of the governmental immunity doctrine codified in 28 U.S.C. § 2680, which insulates the federal government from suit in relation to the performance of its discretionary actions. Military contractors may be extended the benefits of §2680 in a product liability action if they can demonstrate that: (1) the government “approved reasonably precise specifications” for their product; (2) the product conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the product that were known to it but not to the government.”  Boyle, 487 U.S. at 512.

Military contractors of all stripes expressed a collective sigh of relief on January 20, 2017, when the Fifth Circuit Court of Appeals fortified the federal officer removal statute in Zeringue v. Crane Co., 2017 WL 279496 (5th Cir. 2017), a decision which overturned the Eastern District of Louisiana’s remand of an asbestos plaintiff’s suit to Orleans Parish District Court. In Zeringue, the Plaintiff filed suit in Louisiana state court alleging that he first was exposed to asbestos while serving aboard U.S. Navy ships during the 1950s. Crane, one of more than twenty defendants in the case, was a major supplier of asbestos-containing valves, among other equipment, to the Navy. Accordingly, Crane invoked the federal officer removal statute so that it could litigate the case in federal district court. It argued that removal was proper because “any product [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings
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