Vaping Lung Damage

File - In this Aug. 28, 2019, file photo, a man exhales while smoking an e-cigarette in Portland, Maine. The U.S. government has refined how it is measuring an outbreak of breathing illnesses in people who vape, now counting only cases that are most closely linked to electronic cigarette use. Health officials on Thursday, Sept. 12, 2019 said 380 confirmed cases and probable cases have been reported in 36 states and one U.S. territory. (AP Photo/Robert F. Bukaty, File) ORG XMIT: NY109

A Denham Springs woman’s proposed class action lawsuit against e-cigarette manufacturer JUUL Labs Inc. marks the first vaping case in a federal court in Louisiana, mirroring similar cases playing out across the country.

The woman, who is identified only by initials in the filing, claims her 14-year-old son grew addicted to e-cigarettes due to the misleading and youth-focused advertising the company distributed over a period of years.

The proliferation of these lawsuits over the last several months across the United States has brought the issue of vaping to the forefront and is playing out like a resurgence of the Big Tobacco cases of decades ago.

At least one LSU expert believes vaping cases stand a good chance of success if they follow the path of those tobacco cases, and though they’re usually slow to play out in court, having other attorneys who’ve spent decades laying the groundwork may expedite the process.

“The tobacco cases established addiction as an injury and it was a novel idea at the time but it worked in those cases so I don’t think it feels like a particularly 'out there' idea now,” said Margaret Thomas, an LSU Law Center professor who specializes in federal civil procedure and the federal courts.

“They’re likely going to be reusing the exact same playbooks, the same experts probably … and I think if you look at the history of the tobacco litigation it’s easy to predict the path this is going to take.”

The Denham Springs woman, C.B., filed the suit Sept. 11 in the U.S. District Court’s Middle District of Louisiana in Baton Rouge, followed on Sept. 16 by the second class action-seeking plaintiff, Frank Douglas D’Amico, in the Eastern District.

Records show JUUL Labs Inc. has been listed as a defendant in 56 civil cases in federal court, 47 of those having been filed since Jan. 1, 2019.

The first step will be to have those classes certified, which gives the plaintiffs judicial approval to move ahead as a "class" of people. Thomas said she doesn’t believe that would be difficult to prove given it’s likely each of the plaintiffs would’ve been exposed to the same advertising for the same period of time.

The Denham Springs case defines its class as all persons under 18 in Louisiana who purchased or consumed JUUL e-cigarettes or JUUL pods, legally or illegally, and became addicted. That includes adults who started using them before they turned 18.

Thomas says it’s likely users who suffered significant health issues will push forward with cases on their own due to the complicated details of their claims, but the addiction and advertising claims such as the Louisiana cases are likely to seek class action status.

As of Friday, the Denham Springs woman’s case had been recognized as a possible multidistrict litigation case. Her attorney, Timothy Moore of Moore and Ogletree, PLLC, did not respond to a request for comment on the case.

Thomas said it’s possible that states, through their attorneys general, may get involved on behalf of their residents as the vaping issue progresses.

In a brief statement sent Friday to The Advocate, Louisiana Attorney General Jeff Landry did not specifically say whether Louisiana would consider establishing its own legal action in response to vaping.

“As a father of a teenager, I am very concerned about the issues that have been raised,” Landry says. "As Attorney General, I will continue to do all I can to protect Louisiana’s children.”

Nationwide, the products have been used overwhelmingly by young people. As of Sept. 17, there had been 530 cases of lung injury associated with e-cigarette or vaping products of which two thirds were people aged 18 to 34 years old, and 16 percent were under 18, according to the federal Centers for Disease Control and Prevention.

The Food and Drug Administration reports 3.62 million American middle and high school students were using e-cigarettes in 2018.

Though the Denham Springs lawsuit doesn’t outline whether the plaintiff’s son is a student at Livingston Parish Schools, district Assistant Superintendent Steve Parrill said e-cigarettes have contributed a huge increase in the number of violations of school policy by students.

From the 2015-16 to the 2017-18 year, the school district recorded an average of 134 “tobacco or lighter use” violations per year, which encompasses vape products as well as chewing tobacco, cigarettes and lighters.

However, in the 2018-19 year, that number jumped to 551 violations, of which Parrill said vape products contributed the majority. The numbers between the beginning of the school year and Sept. 17 show the district is on track this year for a number similar to the 2018-19 school year.

It appears as if the increase in lawsuits as well as the attention from agencies like the CDC and FDA may have had some impact on JUUL dialing back its marketing campaigns.

JUUL Labs rolled out a youth prevention campaign in August, including stricter control standards at the point of sale and tracking confiscated JUUL products. In November, the company shut down U.S.-based Facebook and Instagram accounts, restricted non-tobacco and non-menthol flavored JUUL pods in retail stores, and introduced online age verification for buying.

Those measures might work for plaintiffs to prove the impact of advertising on young people was significant, Thomas said, but aren’t likely to minimize the damage to the company of so many lawsuits.

“Those can limit future claims by new individuals who might get addicted so those future cases will be different, but it’s not going to undo the effects of what they’ve already done by the past conduct,” she said.

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