Vaping devices have become the millennials’ old-time cigarette. Vaping devices are essentially electronic cigarettes that have replaced the paper roll-up cigarette. Yes, even kids in Sacramento’s middle schools and high schools have turned to vaping. One can now vape nicotine or marijuana along with a host of tobacco products. It is the tech age, an age of creativity and the freedom to inhale since Cannabis has been legalized in many States.
Yet, 5 deaths have been recently reported due to severe lung illnesses allegedly resulting from vaping. Also, more than 450 lung injuries have been reported from vaping. The U.S. Food and Drug Administration (“FDA”) is investigating vaping devices and the chemical compounds used in vaping devices to address the causes of these deaths and illnesses. Those that have suffered death or illness are typically teenagers and young adults so this wave of illnesses and death is concerning to the FDA. https://www.fda.gov/consumers/consumer-updates/vaping-illnesses-consumers-can-help-protect-themselves-avoiding-tetrahydrocannabinol-thc-containing
In California, vaping manufacturers, suppliers and retailers are strictly liable to a consumer or user of their product if they place a defective product into the marketplace that creates an unreasonable risk of harm to the consumer or user. In general, strict liability means that a plaintiff seeking damages arising from a defective product doesn’t have to prove that the manufacturer, supplier or retailer acted below a certain of standard of care; just that they placed the defective product into the stream of commerce and that product was unreasonably dangerous.
If the injured victim died, then certain individuals, who survived the death of the decedent, can claim wrongful death damages against the manufacturer, supplier and/or retailer. Wrongful death damages do not mean those damages suffered directly by the dead person thereby causing the person to die nor does it mean compensation for the deceased person’s value as a human being. Rather, wrongful death damages equate to those damages arising from the survivor’s loss of his or her relationship with the decedent. The claim belongs to the survivor and is quantified by the amount of love, care, comfort, and society as well as financial support benefiting the survivor.
Yet, California’s wrongful death statute limits wrongful death claims to certain individuals (See Code of Civil Procedure section 377.60). Typically, if a person dies with a spouse and children, then both the spouse and children maintain the exclusive right to recover wrongful death damages except in certain circumstances. If the person dies without a spouse or children, then his or her parents, if living, the right to compensation. If the person did not have a spouse, children or parents that were living at the time of his death, then any sisters and brothers may recover such damages. Other individuals may also recover if they were financially dependent on the person who passed.
Those that have died from vaping have evidently suffered breathing disorders and other medical complications which required treatment. This treatment, of course, occurred before death. In California, even after the injured victim dies, the injured victim’s family or representative may still recover for the decedent’s medical bills and lost wages. This claim is commonly known as a “survivor’s action”.
Wrongful death, survival, and products liability actions can be complicated matters. For instance, attorneys need to identify all those persons with a right to recover wrongful death damages since California requires that a wrongful death plaintiff join all those with a claim to that plaintiff’s suit. Also, an investigation will have to be performed to firmly link the product defect to the injury or death.
At Curtis Legal Group, we understand that the loss of a loved one can be unbearable. That is why we work hard to protect a victim’s rights under product liability, survival, and wrongful death laws.