Class Certification Granted in CA lawsuit against Smoking Everywhere

[Placebo Effect]

There have been various lawsuits involving e-cigarette companies, but they mainly deal with investors being ripped off or scammers advertising "free" trials.

Before Jon Banzhaf retired from ASH, he floated the idea of filing a class action lawsuit against e-cigarette companies. Looks like someone has decided to adopt that approach.

Plaintiff alleges in his First Amended Complaint that
Defendant misrepresented that electronic cigarettes are a safe
alternative to traditional cigarettes, despite independent testing that
revealed the presence of toxins and known carcinogens. (FAC, ¶¶ 14-19,
21-27.) Plaintiff alleges he and other California residents purchased
electronic cigarettes in reliance on Defendant’s false advertising and
suffered damages as a result. (FAC, ¶ 29.) Plaintiff alleges that when
Defendant made these misrepresentations, it violated the California
Consumer Legal Remedies Act (“CLRA”) prescribed in California Civil Code
section 1750 et seq., and the California Unfair Business Practices Act
(“UCL”) prescribed in California Business and Professions Code section
17200 et seq."

This ruling is from October 20, 2011. Apparently Smoking Everywhere had $15 million in sales in 2009 alone. And how much money has Ray Story spent on advocacy? . . . .

http://www.courthousenews.com/2011/10/21/feather river.pdf

 

[Vocalek]

Ray Story didn't even pay the law firm that sued the FDA on behalf of Smoking Everywhere. Story's story would probably be that his partners stole most of the money. But also keep in mind that $15 M in sales is not $15 M in profit. They probably lost a boatload of money from the products that were stolen confiscated by the FDA.

Story isn't with Smoking Everywhere any more, so this is not his fight.

But were I the attorney for SE in this case, the first thing I would do is serve a subpoena duces tecum on B.J. Westenberger, ordering him to bring copies of correspondence with Josh Scharfstein, Margaret Hamberg, and Siobhan DeLancey regarding electronic cigarettes, and to bring any and all records pertaining to the testing of e-cigarettes. During the deposition I would ask some pointed questions:

1. What was the highest quantity of tobacco-specific Nitrosamines (TSNAs), referred to as "carcinogens" in the FDA press release, measured in the vapor from a cartridge?

If response is any number greater than zero, ask the witness to point out where this was reported in the "Evaluation of e-cigarettes" document. http://www.fda.gov/downloads/Drugs/ScienceResearch/UCM173250.pdf​

2. What was the highest quantity of TSNAs you measured in any one electronic cigarette cartridge?

If response is "I don't know", ask,​

• Isn't a valid toxicology report supposed to contain a quantitative analysis of all chemicals reported in the qualitative analysis?
• Why were these quantities not reported?
• Did someone instruct you to omit these quantities from your report? Who?
• Would it surprise you to learn that researchers who did quantify the TSNAs in the liquid of a 16 mg e-cigarette cartridge measured 8 nanograms/gram?

3. Did you find any TSNAs whatsoever in e-cigarette vapor?
4. What quantity of TSNAs are found in a 21 mg. nicoitne patch?

If response is "I don't know" ask, "Would it surprise you to learn that researchers have reported that a patch contains 8 nanograms of TSNAs?"​

5. What quantity of TSNAs are in 10 pieces of 4 mg. nicotine gum?

If response is "I don't know" ask, "Would it surprise you to learn that researchers have reported that each piece of 4 mg nicotine gum contains 2 nanograms of TSNAs?"​

6. Have there every been any cases of cancer that can be traced to use of nicotine patches or gum?

If witness claims he doesn't know ask, "Do you personally know of any cases of cancer that were caused by pharmaceutical nicotine products?"​

7. Given that pharmaceutical nicotine products do not cause cancer, would there be any scientific reason to believe that e-cigarettes are likely to cause cancer?
8. What is the toxic dose of deithylene glycol, aka DEG?

If response is "I don't know" ask, "Would it surprise you to learn that the toxic dose of DEG is 1 gram/kilogram?"​

9. Given the concentration found in one cartridge of 1%, how many cartridges would an adult weioghing 68 kg need to drink to reach the toxic dose?

If response is "I don't know", say, "Let's breeak this down to a simple arithmatic problem."​

• At a concentration of 1% in a cartridge that holds 1 gram, how many cartridges would be required to accumulate an entire gram of DEG? [Answer = 100]
• Then for an adult that weighs 68 kilograms, 6800 cartridges would be required to reach a toxic dose. Is that correct?
• How likely is it than anyone would ever drink 6800 cartridges of e-liquid in a single day? Not very likely, right? Especially in view of the fact that users don't drink the liquid. They inhale the vapor.

10. So, Dr. Westenberger, isn't it true that your analysis did not find any dangerous quantities of carcinogens or toxins in either the liquid or the vapor?

 

[windwalker]

Now, wait a second here... Something smells a little fishy to me.

First, who is Ryan Mathias, and what is the injury that has got him so worked up to file a class action lawsuit?

I mean, in order to have a proper class action worth pursuing, you have to have injury, and you have to stand to gain something.

Here's what Mathias claims hurt him so bad: "

Plaintiff states the putative class members’
alleged injury is purchasing Defendant’s electronic cigarette based on
Defendant’s statements that it is a safe alternative to traditional
cigarettes, when in fact the electronic cigarette actually contained
toxins and carcinogens.

Okay, fair enough - You arguably got burned on bad advertising, that's arguable - so I'll concede that it's a point worth arguing - you possibly deserve a refund of your damages how much did you spend?

Plaintiff spent $250.00 for
his initial purchase of the device

Okay, fair enough - you spent $250 and you want a refund. That's enough money to get angry, I'll concede that I can be a pain in the .... for >$50...

So, how many other people are in the same boat?

Plaintiff’s calculations support the
inference that the class contains at least 600 individuals.

Okay, so we're talking about $150k? Well, fair enough, that's a good chunk of money, plus some punitive damages, it could be a real case...

How much did it cost you to retain legal counsel?

Plaintiff has presented evidence
showing that his counsel has experience litigating class actions in
state and federal courts. (Medby Dec., ¶¶ 7-8.) In addition, Plaintiff
has already retained an expert to “render scientific opinions regarding
the veracity or lack thereof” of Defendant’s claims.

Wow, you already booked legal counsel, and an expert to help you file a claim where you hope to recoup $250 in damages?

Hungh?

Well, you are after all representing a class - so how do you intend to contact and inform that class of the litigation?

No Comment...

You know that it is not uncommon to spend upwards of $2k-$5k per person to find actionable class members right? You are after all trying to identify 600 people out of 25million within the jurisdiction of the class...

..and Ryan, you do realize that: Mr. Wright, the attorney for Smoking Everywhere can't even get paid! Document 35 :: Mathias v. Smoking Everywhere, Inc. :: 2:2009cv03434 :: California Eastern District Court :: US Federal District Courts Cases :: Justia

...and having been chasing this $250 for 11 months now through at least 3 legal filings, you must realize that Smoking Everywhere is "Out of Business, Out of Assets, Out of Order, Out of Contact, and Most Likely Out of the Country" and the company currently named 'Smoking Everywhere' is not the same company that you think owes you $250.

...and, you do also understand, that on September 14th, 2011 the judge ordered that the Pre-Trial hearing will be on June 11th, 2012 another 7 months away, that is, if you even get approval to go forward on October 20th (which he did get). Mathias v. Smoking Everywhere, Inc. Document 41 - :: Justia Docs

So, to sum up what we've got here - this guy, Ryan Mathias has been chasing down a $250 refund since January of 2011, and won't get his say in court until June 2012 (18 months later)... Trying to get that refund from a company that no longer exists, who even the court appointed officials can't find any trace of, who haven't made a single statement (because no one can find anyone on the INC documents to talk to) - - - and who if they could find, are totally bankrupt or slushed offshore...

So serious is this guy about his $250 dollars, that he is filed a Statewide Class Action Law Suit...

Did anyone ever see the movie "better Off Dead" where the paperboy chases the hero through the whole movie trying to get his "Two Dollars" shouting, "I want my Two Dollars!"

I mean, seriously, this guy has legal council and retained experts to testify and now needs to try and contact 600 people out of 25million with no leads to go on, all to recoup his $250.

He's going to spend all his Rent-a-Center earnings, oh wait, the last Class Action he filed was dismissed with prejudice... This is Ryan's second class action lawsuit in as many years... http://docs.justia.com/cases/federal/district-courts/california/caedce/2:2010cv01476/209020/57/0.pdf

So either he is the most determined, most ...... of person on the planet, or something fishy is going on here.

I mean, one time I filed a dispute at Ebay over $75 and I thought I was extreme! Ryan Mathias is my new hero for absurdly extreme self defeating behavior...

I think the lawsuit is absurd, but I give him an A+ for entertainment value and style. . .

I mean, wouldn't it be cool, if in the end he actually found the 600 other $250 victims, and they all chimed in together in a courtroom with no defendant?

Something doesn't add up here... and it's more than just the maths.

 

[Ande]

If this lawsuit weren't a joke, which it is, then the thing I'm not seeing is damage.

Presumably, Smoke Everywhere's customers were in fact smokers. By substituting some of the cigarettes they smoked with use of Smoke Everywhere's product they...breathed better? Could smell more? Felt their bloodpressure drop?

For what it's worth, SE, in my opinion, is GUILTY of misrepresentation. On a lot of things. (A rep once told me that a carto was the equivalent of a carton of smokes. My ....) And no, the term "safe alternative" should never be used. If in fact it was.)

BUT...to get damages awarded in court, you generally have to prove, um, damage. Unless they're ready to step up and say that the product somehow damaged their health MORE than the cigarettes they would otherwise have consumed...it's a non-starter.

They could and may, of course, argue that rather than using this product, they would have quit entirely. I can think of literally hundreds of studies that refute that- One individual might have, but at a class action level, it's ridiculous.


Happy days,

Ande

 

[mountainurse]

I have said a million times....California is THE most litigious state of them all!! The medical field is rampant with rules, regulations and documentation that exists purely to keep the hospital out of court. A wife cannot stay with her husband unless he is in a private room when he is in the hospital.... fear of litigation over mixed sexes in the same hospital room!!! OMG!!!