Five Similar Responses to Motions to Dismiss Individual Plaintiffs’ Tort Claims Filed in JUUL Marketing Case

Last week, individual plaintiffs in the multi-district litigation implicating vaping product manufacturers JUUL Labs, Inc. (JLI), Altria Client Services LLC, Altria Enterprises LLC, Altria Group Distribution Company, and Altria Group, Inc. (collectively Altria), responded to the defendants’ motions to dismiss for failure to submit documents required by a case management order. The individual plaintiffs make personal injury and wrongful death claims against the defendants for health ramifications stemming from use of their e-cigarette products.

The defendants’ motions are their most recent attempts to whittle the case down as the motion to dismiss hearing date, September 21, draws nearer. Previously, the defendants filed motions to dismiss the “bellwether” government entities’ claims and complaints against some of their officers and directors.

The defendants’ latest motions to dismiss claimed that 31 individual plaintiffs failed to submit “a substantially complete Plaintiff Fact Sheet (PFS) within 60 days after the complaint has been entered.” The PFSs are meant to contain personal information detailing each plaintiff’s mental and physical health conditions relevant to their tort claims.

The defendants asked the court to dismiss the complaints without prejudice. JLI noted that prior to the instant motion, it notified noncompliant plaintiffs of their tardiness after granting them an additional 30-day extension to file their PFSs. The motion requested that the plaintiffs either respond by “certifying that the plaintiff has submitted a completed PFS or [] oppos[e] the Motion for other reasons.”

Last week, five plaintiffs opposed the dismissal request, responding with either a certificate of compliance or by asking for a filing extension. A representative opposition requesting extension argues, “(d)ismissal is a harsh penalty that should be imposed only in extreme circumstances, which are not present in this case.”

The filing asks for leniency in view of the plaintiff’s circumstances, pointing to how the plaintiff “acquired a severe addiction to nicotine at a very young age through use of JUUL e-cigarette products,” causing him to suffer “mental and physical changes to his brain that impact how he thinks, acts, and functions.” The plaintiff contended that the PFS required by the case management order requires him to “provide intimate details… about matters teenagers generally prefer to keep private.”

The opposition also pointed out that the litigation is unfolding during an unprecedented global pandemic. Ultimately, the plaintiff requested that the court decide his case “on the merits rather than on procedural grounds,” noting the absence of bad faith and that granting a PFS extension will not prejudice the defendants.

The 31 individual plaintiffs are represented by Hare, Wynn, Newell & Newton, LLP, Morgan & Morgan P.A., Douglas & London, P.C., Levin Sedran & Berman LLP, Hendy Johnson, Vaughn Emery, and Burg Simpson Eldredge Hersh & Jardine, P.C.

JLI is represented by Munger, Tolles & Olson LLP and Kirkland & Ellis LLP. Altria is represented by Arnold & Porter Kaye Scholer LLP.