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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Artboard 1You get served with a citation in a new products suit. The facts do not look good. The airbag system didn’t deploy. Maybe a tire exploded. Perhaps the steering assembly failed. A call is made to the plaintiff’s attorney – you want an expert to use an onboard diagnostic tool to test for what went wrong. Expecting to reach an amenable date for an inspection, you get a response that you were not quite expecting – the vehicle (or tire or steering assembly) has been salvaged and is no longer available for inspection. What happens next, and the legal theories involved, undoubtedly vary from state to state. Here we take a brief look at Louisiana law on the “case of the missing product.”

Adverse Presumption

In Williams v. General Motors Corp., 639 So. 2d 275, 276 (La. App. 4 Cir. 1994), the plaintiff was driving as 1985 Buick manufactured by GM when his steering failed and his vehicle veered into a guardrail. After the accident, the Williams’ damaged vehicle was taken to Jackie Rowan’s Automotive Repair where “[a]n employee of the repair shop discarded the rack and pinion steering assembly. Mr. Williams, therefore, could not produce those parts at the trial in support of his claim that they were defective.” Id. at 278. General Motors asserted that the failure to produce those parts in court “creates a presumption that the evidence would have been unfavorable to his cause.” Id. The court held that “[w]here a litigant fails to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to him….the record supports Mr. Williams’ contention that the part was inadvertently discarded when it was mistaken for scrap metal by an employee of Jackie Rowan’s Automotive Repair Shop.” Id. The court held that Mr. Williams therefore provided a reasonable explanation for his failure to produce the evidence in court and no such unfavorable presumption applied. Id.

While in the Williams case the plaintiff was able to provide a ‘reasonable explanation’ for his failure to produce the allegedly defect part, such a determination is fact intensive and varies from case to case. Depending on the plaintiff’s response to the inquiry requesting an inspection of the product, there may be an opportunity to seek an adverse presumption prior to trial.

 

The Firestone Case & Summary Judgment

firestoneAlternatively, if the facts so align, a more cost effective approach may be a motion for summary judgment. In a very recent case, Gladney v. Milam, 39, 982 (La. App. 2 Cir. 9/21/15); 911 So. 2d 366, the plaintiff was driving a leased van equipped with Firestone tires when the van’s right front tire failed and the plaintiff lost control of his vehicle. Firestone filed a motion for summary judgment on the grounds that plaintiff could not prove a defective condition without producing the tire at issue, which had gone missing for reasons unknown. Id. at 368. The plaintiff had
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House Bill 4123 makes two changes to Massachusetts Superior Court procedure, both of which favor plaintiffs.  The first, addressed by Section 1 of the bill, allows plaintiffs’ attorneys to request a specific monetary amount of damages at trial.  The second, addressed by Section 2 of the bill, allows attorneys to conduct voir dire.

The Language of the Bill

Section 1 of the bill states that “[i]n civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”

Section 2 of the bill requires the court, upon the request of any party or any party’s attorney, to permit “the party or the party’s attorney to conduct, under the direction of the court, an oral examination of the jury venire.”  This examination is not unlimited, however.  Instead, “[t]he court may impose reasonable limitations upon the questions allowed during such examination.”  The court may provide additional time to the parties at its discretion.

Examination by a party or a party’s counsel does not replace voir dire conducted by the court.  Instead, such examination is “[i]n addition to whatever jury voir dire of the jury venire [that] is conducted by the court.”  Also, the bill does “not limit the number of peremptory challenges a party is entitled to by statute or court rule.”

Massachusetts’s Jury Trial Statistics

 

In a 2005 study, the Department of Justice analyzed plaintiff success rates in the United States’ seventy-five most populous counties.  Four Massachusetts counties were included in this study: Essex, Middlesex, Suffolk, and Worcester.  The study revealed that plaintiffs prevailed approximately 53.2 percent of the time nationwide.  However, in the four Massachusetts counties, plaintiffs prevailed in only 79 of the 321 jury trials, for a success rate of approximately 24.6 percent.

 

Potential Impact of the Bill

 

The Massachusetts Academy of Trial Attorneys, an organization of Massachusetts plaintiffs’ attorneys, believes that the implementation of House Bill 4123 will make Massachusetts a more plaintiff-friendly jurisdiction.  After the governor signed the bill into law, the Academy’s president posted a letter to the group’s website calling the bill “a cultural shift in Massachusetts.”  The letter further stated that “the ability to state a dollar amount at trial is also a huge advance” for plaintiffs’ attorneys.

If the Academy is correct, House Bill 4123 could make Massachusetts a particularly problematic jurisdiction for toxic tort and products liability defendants.  According to the Department of Justice’s 2005 study of nationwide trial statistics, plaintiffs prevailed in jury trials less than half as frequently in Massachusetts as they do throughout the country.  If plaintiffs in Massachusetts jury trial begin winning more often because House Bill 4123 (1) gives their attorneys a better chance to influence the jury through attorney-conducted voir dire and (2) strengthens their attorneys’ presentation to the jury by authorizing them to request a specific amount of monetary damages, then Massachusetts could become an appealing jurisdiction for plaintiffs, and plaintiffs’ attorney might be emboldened to push cases to the
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Despite efforts to increase efficiency and save money, most businesses set aside substantial budgets for litigation costs. With the ever-changing landscape of litigation, discovery is usually one of the most expensive line-items. In fact, Inside Counsel points out a Gartner forecast showing, “revenue in the enterprise e-discovery software market will grow from $1.8 billion in 2014 to $3.1 billion in 2018”.

Although discovery costs are necessary, the way a business operates can have a significant impact on its bottom line.  The following list provides six steps companies should consider implementing to make the discovery process more efficient and save money.

1. Determine Which Parties Are Most Important to the Case

In discovery your attorney needs to determine where essential documents can be located and who has knowledge most relevant to the case.  This can result in attorneys having to interview several people within a company to determine: (a) who is the best candidate to represent the entity as the Person Most Knowledgeable; (b) where crucial information can be found; and (c) who has access to that information.  Doing some of the initial legwork yourself can save your business many hours of attorney fees and will allow your legal counsel to hit the ground running.

2. Be Aware of Deadlines

When attorneys receive discovery requests from opposing counsel, they are on the clock.  In California for example, attorneys have 30 days to respond to most forms of written discovery.  This entails analyzing the discovery requests, determining which objections should be made, drafting responses, and providing the client time to review and approve the responses.    To prevent delays, tell your attorneys at the outset of the case how much time you will need to review discovery responses.  You can also request to be notified when discovery requests are received to plan ahead and set aside time in your schedule to review the responses.

3. Provide Reliable Modes of 24/7 Communication

Poor communication results in increased costs in all industries, and litigation is no exception.  Unanswered emails, missed telephone calls, and other communication misfires can quickly rack up fees.  This is especially true when a discovery deadline is approaching and counsel needs to reach you to acquire information for discovery responses or verification forms.  Inform your counsel of the best ways to reach you.  If you do not typically respond to work emails or phone calls after a certain hour, let your attorney know.  Consider creating an email chain with all parties involved in the case copied to ensure information is communicated simultaneously rather than multiple times.

 

4. Determine Your Theme

Litigation can be an art, but usually benefits from an organized, structured presentation of the legal issues raised in a case.  A company theme, or Good Company Story, is often used to provide a common thread during a jury trial to help counteract opposing counsel’s efforts to vilify a company.  By creating a theme at the outset of a case, companies can often maintain
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