A battle over Gov. Charlie Baker’s four-month ban on the sale of vaping products is essentially moving to state court instead of federal court, after a contentious federal hearing Tuesday.
Several Massachusetts vape shops and a vaping trade association had filed emergency motions asking the U.S. District Court to block Baker’s four-month ban on sales of vaping products in the commonwealth, which the governor announced about three weeks ago. The companies argued that the ban would be an economic disaster for shops that sell these products.
The federal judge had agreed to an expedited schedule to hear the case, with arguments slated to begin Tuesday. But Friday afternoon, the companies withdrew their motions, saying they preferred to let a parallel case move forward in state court. It would be “inefficient and expensive” to have witnesses providing the same testimony in two simultaneous court cases, they argued.
In a reply late Friday, U.S. District Judge Indira Talwani granted the plaintiffs’ request to withdraw their motion, but said their “concern regarding efficiency and expense falls flat where plaintiffs are the ones who initiated multiple proceedings.”
The judge also noted that in prior hearings, the plaintiffs “made no mention … of any other litigation they were pursuing in Massachusetts.”
At the Tuesday hearing, Talwani ripped into Craig Rourke, an attorney representing several of the vaping businesses suing the state, for his last-minute move to suspend a case she had previously put on a fast-track at his clients’ request. “Are we playing games here?” she said.
Rourke said he had honestly intended to go forward with the case until he discovered that other plaintiffs were moving to scrap Tuesday's hearing.
Rourke told WGBH News after the hearing that “there was no gamesmanship on my part.” He said it was not his intent to suspend the case; he was simply following the lead of other companies who have filed a parallel federal case, and who have also requested a delay so the state case can proceed.
He said that the state case is going well for the vaping companies because expert witnesses have testified that the outbreak of respiratory illnesses appears to be linked to some type of oil that Rourke says would not have been produced by his clients’ products.
With the motion in federal court now on hold until November, the vaping companies’ case shifts to Suffolk Superior Court, which has scheduled a hearing Friday to gather more evidence regarding their request to block the governor's ban on vaping products.
Lawyers for the Massachusetts Attorney General did not resist the companies’ efforts to withdraw their motions, but argued in a response filed Friday evening that they “wish to make plain to the court the purely tactical, opportunistic nature” of the maneuver.
