E-Cigarette/Vape Product Liability Complaint

E-CIGARETTE / VAPE PRODUCT LIABILITY COMPLAINT

IN THE [________________________________] COURT

[________________________________] COUNTY, STATE OF [________________________________]

Case No.: [________________________________]

PLAINTIFF:
[________________________________] [individually and as parent/guardian of [________________________________], a minor]

v.

DEFENDANT(S):
[________________________________] (Manufacturer)
[________________________________] (Distributor)
[________________________________] (Retailer)

COMPLAINT FOR DAMAGES — E-CIGARETTE / VAPING PRODUCT LIABILITY

Plaintiff, [________________________________], by and through undersigned counsel, brings this Complaint against Defendants and alleges as follows:

TABLE OF CONTENTS

1. Introduction
2. Parties
3. Jurisdiction and Venue
4. Factual Background
5. Count I — Strict Liability (Design Defect)
6. Count II — Strict Liability (Failure to Warn)
7. Count III — Negligence
8. Count IV — Breach of Warranty
9. Count V — Unfair and Deceptive Trade Practices
10. Damages
11. Prayer for Relief

I. INTRODUCTION

1. This action arises from injuries caused by the use of defectively designed, manufactured, and/or marketed electronic cigarette/vaping products ("Products") made, distributed, and/or sold by Defendants.

2. The Products at issue are: [________________________________] (brand name, model, flavor, etc.).

3. The injuries at issue include:
   ☐ Nicotine addiction
   ☐ Lung injury (e.g., EVALI — E-cigarette or Vaping Product Use-Associated Lung Injury)
   ☐ Respiratory disease
   ☐ Battery explosion/thermal burns
   ☐ Cardiovascular injury
   ☐ Seizures
   ☐ Other: [________________________________]

II. PARTIES

A. Plaintiff

4. Plaintiff, [________________________________], is an individual residing at [________________________________], County of [________________________________], State of [________________________________].

5. Plaintiff is [____] years old and began using the Products on or about [__/__/____].

☐ Plaintiff was a minor at the time of initial use (age [____]).
☐ This action is brought by [________________________________] as parent/guardian of the minor Plaintiff.

B. Manufacturer Defendant

6. Defendant, [________________________________] ("Manufacturer"), is a [corporation/LLC] organized under the laws of [________________________________], with its principal place of business at [________________________________].

7. Manufacturer designed, manufactured, produced, marketed, distributed, and/or sold the Products at issue.

C. Distributor Defendant

8. Defendant, [________________________________] ("Distributor"), is a [corporation/LLC] organized under the laws of [________________________________], with its principal place of business at [________________________________].

D. Retailer Defendant

9. Defendant, [________________________________] ("Retailer"), is a [corporation/LLC/individual] located at [________________________________], which sold or provided the Products to Plaintiff.

III. JURISDICTION AND VENUE

10. This Court has jurisdiction pursuant to [________________________________].

11. The amount in controversy exceeds $[________________________________].

12. Venue is proper because [________________________________].

IV. FACTUAL BACKGROUND

A. The Product

13. The Product(s) at issue are [________________________________] (e.g., brand name, model number, generation).

14. The Product(s) contained [________________________________] nicotine concentration (e.g., 5% nicotine by weight / 59 mg/mL nicotine salts).

15. The Product(s) were marketed and advertised through the following channels:
    ☐ Social media (Instagram, TikTok, YouTube, etc.)
    ☐ Print media
    ☐ Point-of-sale displays
    ☐ Influencer marketing
    ☐ Online platforms
    ☐ Other: [________________________________]

16. The Product(s)' marketing:
    ☐ Used fruit, candy, mint, or dessert flavors appealing to minors
    ☐ Featured youth-oriented imagery, language, or endorsements
    ☐ Minimized or concealed the presence and quantity of nicotine
    ☐ Represented the Products as safe or safer alternatives to cigarettes without adequate scientific support
    ☐ Failed to include adequate nicotine addiction warnings

B. Plaintiff's Use and Injury

17. Plaintiff began using the Products on or about [__/__/____].

18. Plaintiff used the Products for approximately [________________________________] (duration).

19. As a result of using the Products, Plaintiff developed: [________________________________].

20. Plaintiff sought medical treatment on [__/__/____] at [________________________________], where Plaintiff was diagnosed with [________________________________].

21. Plaintiff's medical treatment has included: [________________________________].

V. COUNT I — STRICT LIABILITY (DESIGN DEFECT)

22. Plaintiff incorporates all preceding paragraphs by reference.

23. Under the Restatement (Third) of Torts: Products Liability § 2(b), a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe.

24. The Products were defectively designed in that:

☐ The nicotine delivery system was designed to deliver highly addictive levels of nicotine using nicotine salt formulations
☐ The Products were designed in a sleek, concealable form appealing to minors (e.g., USB-drive appearance)
☐ The Products lacked effective youth-access prevention technology
☐ The lithium-ion battery system was designed without adequate thermal protection, resulting in risk of explosion or fire
☐ A reasonable alternative design existed that would have [________________________________]

25. The defective design made the Products unreasonably dangerous for their intended and foreseeable use.

26. Plaintiff used the Products in a foreseeable manner and suffered injuries as a direct result.

VI. COUNT II — STRICT LIABILITY (FAILURE TO WARN)

27. Plaintiff incorporates all preceding paragraphs by reference.

28. Under the Restatement (Third) of Torts: Products Liability § 2(c), a product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product not reasonably safe.

29. Defendants knew or should have known of the following risks:

☐ High addictive potential of nicotine salt formulations
☐ Risk of EVALI and other lung injuries
☐ Neurodevelopmental harm to adolescent users
☐ Cardiovascular risks
☐ Battery explosion and thermal injury risks
☐ Other: [________________________________]

30. Defendants failed to provide adequate warnings regarding these risks.

VII. COUNT III — NEGLIGENCE

31. Plaintiff incorporates all preceding paragraphs by reference.

32. Defendants owed Plaintiff a duty of reasonable care in the design, manufacture, marketing, distribution, and sale of the Products.

33. Defendants breached this duty by:

☐ Designing Products with unreasonably high nicotine concentrations
☐ Marketing Products in a manner targeting or appealing to minors
☐ Failing to implement adequate age-verification measures
☐ Misrepresenting the safety profile of the Products
☐ Failing to conduct or disclose adequate safety testing
☐ Failing to comply with FDA regulations regarding PMTA requirements
☐ Selling Products to minors (Retailer)
☐ Other: [________________________________]

34. Defendants' negligence was a proximate cause of Plaintiff's injuries.

VIII. COUNT IV — BREACH OF WARRANTY

35. Plaintiff incorporates all preceding paragraphs by reference.

36. Breach of Express Warranty: Defendants made express representations that the Products were [________________________________], which representations were false and upon which Plaintiff reasonably relied.

37. Breach of Implied Warranty of Merchantability: The Products were not fit for their ordinary purpose and were not of merchantable quality because they caused injury during normal, foreseeable use.

IX. COUNT V — UNFAIR AND DECEPTIVE TRADE PRACTICES

38. Plaintiff incorporates all preceding paragraphs by reference.

39. Defendants engaged in unfair and deceptive trade practices in violation of [________________________________] (state consumer protection statute) by:

☐ Misrepresenting the safety of the Products
☐ Concealing known health risks from consumers
☐ Marketing addictive products to minors
☐ Making false or misleading claims about nicotine content
☐ Other: [________________________________]

X. DAMAGES

40. As a direct and proximate result of Defendants' wrongful conduct, Plaintiff has suffered:

a. Past and future medical expenses: $[________________________________]
b. Nicotine addiction treatment costs: $[________________________________]
c. Past and future lost wages/earning capacity: $[________________________________]
d. Physical pain and suffering: $[________________________________]
e. Mental anguish and emotional distress: $[________________________________]
f. Loss of enjoyment of life: $[________________________________]
g. Punitive damages: $[________________________________]

XI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests judgment against Defendants, jointly and severally, for:

a. Compensatory damages in an amount to be proven at trial;
b. Punitive damages for Defendants' willful, wanton, and reckless conduct;
c. Disgorgement of Defendants' profits derived from wrongful conduct;
d. Pre-judgment and post-judgment interest;
e. Costs of suit and reasonable attorneys' fees;
f. Such other relief as this Court deems just and proper.

JURY TRIAL DEMANDED

Plaintiff demands a trial by jury on all issues so triable.

Respectfully submitted,

[________________________________]
Attorney for Plaintiff
State Bar No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Phone: [________________________________]
Email: [________________________________]

Date: [__/__/____]

SOURCES AND REFERENCES

• Restatement (Third) of Torts: Products Liability (1998)
• FDA - E-Cigarettes, Vapes, and Other ENDS
• In re: JUUL Labs, Inc., MDL No. 2913 (N.D. Cal.)
• 21 U.S.C. § 387 - Federal Food, Drug, and Cosmetic Act (Tobacco)