A Puyallup Tribal Police officer who spent three days in the hospital with lipoid pneumonia is suing the distributors and manufacturers of a vape pen and THC oils he used off-duty for pain and stress relief. It is believed to be the first vaping-related lawsuit filed in Washington state at a time when the Centers for Disease Control and Prevention (CDC) is still trying to identify the cause of a national outbreak in lung illnesses connected to vaping that as of last week had killed eight people.

Officer Charles Wilcoxen, 44, filed his lawsuit in Pierce County Superior Court on Monday, less than two weeks after first falling ill on Sept. 11. Married with children, Wilcoxen also returned to work part-time on Monday and is to be on light duty as he continues to recover, said Mark Lindquist, Pierce County’s former prosecutor who is now an attorney with the Hermann Law Group representing Wilcoxen.

“He’s still suffering from shortness of breath and breathing issues. He’s not in the kind of shape he’d need to be to chase a bad guy down the street,” Lindquist said of Wilcoxen. “He’s not out of the woods yet — we’re still waiting on further (medical) tests and reports.”

CannaBrand Solutions, the Everett-based distributor of the Chinese-made CCell pens and batteries used by Wilcoxen, is named in the lawsuit as a respondent along with five other manufacturers or distributors of cartridges containing THC, the active ingredient in marijuana that makes a user feel high. CannaBrand’s CEO Daniel Allen declined to comment on the suit. The Seattle Times on Monday was unsuccessful in contacting the owners or parent companies of Conscious Cannabis in Spokane Valley; Rainbow’s Aloft in Colville, Stevens County; Leafwerx in Wenatchee, Chelan County; MFused in Spokane; and Jane’s Garden in Lake Stevens, Snohomish County.

As of Sept. 17, 530 cases of lung injuries associated with e-cigarettes or vaping products had been reported to the CDC, with patients in 38 states, including Washington. Last week, state health officials declared a statewide outbreak in vaping-related lung injuries with five people falling ill after vaping, two of them in King County.

Based on initial data collected by the CDC, most patients have a history of vaping THC products, with many others reporting they used THC and nicotine products and some patients reporting they only used nicotine products. But according to its website, the CDC still doesn’t know the specific cause of the lung injuries and its investigation has not yet identified any specific e-cigarette or vaping product — devices, liquids, refill pods, or cartridges — or substance that is linked to all cases.

While nicotine vaping products are regulated by the U.S. Food and Drug Administration (FDA), the agency does not regulate THC vaping products because marijuana is still illegal under federal law, said Gregory Conley, president of the American Vaping Association, which advocates for the use of nicotine vaping products as a means to lower rates of cigarette smoking.

He pointed to a Washington Post story and other news reports that identified vitamin E acetate — used as a thickener in THC vaping products — as a possible culprit in the outbreak of lung illnesses.

“The big distinction between nicotine and THC is there’s oil involved in THC — and oil is completely different in how it could go wrong in the lungs,” Conley said.

According to Wilcoxen’s lawsuit, he served in the U.S. Army for 17 years before becoming a police officer. An avid runner, Wilcoxen was “active, fit and healthy” prior to becoming injured. Between January 2018 and earlier this month, Wilcoxen legally purchased THC cartridges or vape pods from stores around the Puget Sound region.

He vaped on Sept. 11 and experienced severe wheezing that continued into the next day, the lawsuit says. He also spiked a fever and was feeling nauseous for several days before his condition worsened and he was ultimately admitted into the hospital on Sept. 16.

Doctors examined his lungs and airway and “the medical evidence indicates a lipoid pneumonia caused by vaping,” according to the suit. Lipoid pneumonia occurs when oil or fat particles enter the lungs.

The Puyallup Tribal Police’s policy regarding marijuana use was unclear, but Lindquist said Monday that Wilcoxen is keeping his police chief and department “fully informed,” reiterating that he only vaped while off-duty.

Lindquist said the FDA needs to step up and begin regulating THC vaping products.

“We regulate beer, we regulate bourbon, we regulate just about everything Americans consume and millions of Americans consume marijuana,” he said. “There’s urgency to the (THC vaping) issue — people are being injured every day.”

The lawsuit alleges negligence and strict liability by all the respondents and is seeking general damages for Wilcoxen’s physical injuries, pain and suffering and emotional trauma as well as special damages related to his medical treatment.

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