Two Kansas school districts have vowed to sue Juul Labs Inc. and other companies in the e-cigarette industry, alleging that vaping is harming their students and disrupting their schools to the point that the districts may recover damages.
The Goddard and Olathe districts have not filed their lawsuits yet, but resolutions adopted in recent weeks by their school boards authorizing such legal action may be the tip of the iceberg. A Kansas City, Mo., law firm working with both districts is actively recruiting other districts to join the effort.
“We have experienced an exponential rise in incidents of students vaping and causing a disruption in the learning environment,” said Dane Baxa, the director of community relations for the 6,000-student Goddard district, which is near Wichita.
He said the district was approached by the law firm, Wagstaff & Cartmell, which is seeking school district plaintiffs on a contingency basis, meaning the firm would take a percentage of any money damages won in the suit and thus no taxpayer money would be spent.
The contemplated legal actions bear a resemblance to lawsuits filed against pharmaceutical companies and others responsible for opioid medications.
Thousands of state and local governments nationwide have sued opioid providers over the alleged costs they face in responding to the effects of the addictive drugs.
Last week, the Miami-Dade County school system sued multiple pharmaceutical companies and other defendants, asserting that the district has incurred costs such as providing more in-school nursing, more resource officers, more training, and decreased tax revenues related to the opioid crisis.
Legal Thinking
Heidi Li Feldman, a professor at Georgetown University Law Center in Washington who is an expert on torts and product-liability litigation, said it was “a little unusual” for school districts to be the plaintiffs in matters such as suing e-cigarette manufacturers.
“In some senses, it’s novel. But it’s not crazy,” she said.
The contemplated lawsuits by the Kansas districts “are not ungrounded in the way the law conceptualizes the role of school boards in the educational process. School boards have affirmative obligations to keep students safe.”
Lynn Rossi Scott, a Fort Worth, Texas, lawyer who has represented school districts for more than 30 years, took a different view of the Kansas districts’ efforts.
“These are the most unusual [proposed] lawsuits brought by school districts that I’ve seen in a long time,” Rossi said. She questioned whether the districts would have legal standing to sue since the students who use vaping products are the real parties alleging harm.
In the case of the Goddard district in Kansas, school board members were shown a common vaping device about a year ago, Baxa said, and they were astounded by how small and easily concealable it was. The board members began to learn about allegations that Juul, the industry leader, was marketing its products to young people. Over the summer came a torrent of news about federal agency warnings over vaping as well as high-profile cases of death and serious injury.
Last month, the U.S. Food and Drug Administration issued a warning letter to Juul for illegally marketing its product as a safer alternative to smoking, “and has made some of these statements in school to our nation’s youth,” according to a statement from FDA acting commissioner Ned Sharpless.
‘Disruption’ and ‘Disturbance’
Over the last couple of years, rates of vaping among teenagers rose dramatically, with nearly 1 of every 5 high school students—or 20.8 percent—reporting in 2018 that they had used electronic cigarettes in the past 30 days, an increase from 1.5 percent in 2011, according to the U.S. Centers for Disease Control and Prevention. The easy-to-conceal practice began showing up in schools. Principals have reported removing doors from bathroom stalls and installing devices that detect vaping and alert school administrators. Some have used a punitive approach—suspending students caught vaping—while others have embraced prevention and programs to help students quit.
On Sept. 9, the Goddard school board adopted its resolution to pursue a lawsuit. The resolution says that the district “has, and continues to experience significant problems with student use of JUUL e-cigarettes,” which has “created a substantial and ongoing disruption of and disturbance to its educational mission” and “has resulted in the diversion of substantial resources in an attempt to abate and prevent such use,” and which “poses a significant risk to the health and well-being of its students.”
On Sept. 27, the board of the 30,000-student Olathe district, a suburb of Kansas City, Mo., adopted a similar resolution, with some passages identical to that of the Goddard document.
“To protect our students is paramount,” Olathe Superintendent John Allison said at a press conference last month. “Middle and high school students, we believe, have been targeted by e-cigarette and vaping manufacturers with false and misleading advertising. Vaping has caused a significant disruption in our buildings.”
The Olathe resolution authorizes Wagstaff & Cartmell and three other law firms “to investigate and initiate litigation and file suit against any necessary parties to recover damages suffered by the district as a result of the manufacture, markings, and sale of e-cigarette and vaping devices, and to seek all appropriate relief.”
Mark Tallman, the associate executive director of the Kansas Association of School Boards, in Topeka, said the rise in student vaping has become an issue among district and school leaders rather suddenly.
“Just how pervasive vaping has gotten how quickly has really taken a lot of people by surprise,” he said. “There are a lot of concerns, and these two school districts have apparently decided to go this route.”
Juul, based in San Francisco, told Education Week in a statement, “We have not yet seen the proposed complaints. ... Our product has always only been intended to be a viable alternative for the one billion current adult smokers in the world. We have never marketed to youth, and do not want any non-nicotine users to try our products.”
The company, which has an estimated 75 percent of the market for vaping products, advocates for raising the age for vaping products to 21 nationwide and has suspended the distribution of flavored Juul “pods.”
Tyler W. Hudson, a partner with Wagstaff & Cartmell, said via email that no school district lawsuits have been filed yet.
“Unfortunately, we are not at liberty to discuss the issues at this point,” he said.
The law firm has a “Juul Litigation” tab on its website, which invites visitors to “schedule a webinar presentation to learn how school districts are fighting back to stop the vaping epidemic.”
Risk of Distraction
Rossi, who works for the firm of Brackett & Ellis and is a past president of the Education Law Association, a professional group, said the districts’ resolutions suggest these suits are being driven by law firms. It reminds her of a period beginning in the 1980s when law firms enlisted school districts to sue the asbestos industry.
“In those cases, however, there were tangible damages that the districts could prove,” Rossi said. “Districts were required by federal law and regulations to abate or contain asbestos, which was very expensive. I think it is going to be a lot harder to prove damages here [with e-cigarettes], as there are no federal or state mandates that cause monetary damages.”
She also questioned the resources that such a lawsuit might cost a district. Even if no taxpayer money is being spent because of the contingency basis for such a suit, the effort might distract from the district’s educational mission, she said.
“Is this really a fight that a school district should take on?” Rossi said.
