4 Keys To Defending E-Cig Battery Explosion Cases

November 5, 2019Article
Law360 Expert Analysis

Law360 (November 5, 2019, 4:39 PM EST) -- Just as there has been a rapid rise in the use of electronic nicotine and THC delivery devices, so, too, has there been a rise in litigation involving instances of exploding lithium-ion batteries and related personal injury lawsuits.[1] These lawsuits often involve catastrophic injuries, including severe burns, disfigurement, permanent disability and even death.[2]

Earlier this year, a wrongful death lawsuit was filed in Texas alleging that shortly after the decedent purchased an electronic cigarette, it exploded while he used it in the store parking lot, causing shrapnel to lacerate a major artery, eventually causing his death.[3] Last month, a case was filed in Suffolk County, New York, alleging that an electronic vaping device battery exploded while in the plaintiff’s pocket, causing severe burns.[4]

Both plaintiffs and defendants face several unique challenges in this litigation. It's important to understand the challenges to both sides in order to best serve and properly defend your client.

What Is a Lithium-Ion Battery?

Lithium-ion batteries are commonly used in portable electronics such as cell phones, laptops, digital cameras and — relevant here — electronic vaping devices. They are lightweight, cheap and have good electrochemical potential and great battery density. In other words, they pack a lot of energy into a small package.

These batteries are potentially hazardous because of their high energy density, flammable liquid electrolyte and high volatility. Lithium actually will ignite on contact with water. Moreover, it is important to keep in mind that, unlike how they are used in laptops or cellphones, the batteries in electronic vaping devices are used specifically to create the high heat needed to create vapor.

A short circuit can generate excessive heat, and, in turn, growing internal pressure, until the battery ruptures. In some cases, short circuits can be caused by prolonged contact with external items such as keys, loose change and other metallic objects — which, unsurprisingly, are commonly found in the same pockets where consumers keep these devices and their batteries.

While Underwriters Laboratories has developed standards relating to lithium-ion battery safety,[5] these standards are only applied to products which undergo UL testing. Regulations as to the safety of electronic batteries used in electronic cigarettes and other vaping devices are still being developed.

The Litigation

Exploding battery lawsuits are strict liability and common law negligence products liability matters. The fact patterns are often very similar: “There was nothing wrong with it, when all of the sudden it exploded in my pocket.” A study by the Federal Emergency Management Agency[6] revealed that the vast majority of these explosions occur either while the device is in the user’s pocket, or while the device is in use.

Usually there is no advanced warning of explosion. A plaintiffs will typically claim that there was nothing wrong with the product, and that they were either using it normally, or simply had it in their pocket, when it exploded. This is exactly what is alleged in the Suffolk County lawsuit.

Battery manufacturers are usually not the only defendants in these cases. Frequently, vaping device manufacturers, retailers and distributors will be included. Theories of liability include strict products liability claims, such as defective design and defective construction and failure to warn, as well as general negligence and breach of implied warranties.

Plaintiffs are also developing an additional legal theory of causation: that exploding battery injuries are caused not just by faulty product manufacture, but as a result of addiction to nicotine. In line with that theory, the battery at issue is often a spare battery which the user bought to prolong their ability to use their vaping device.

One of the main challenges facing plaintiffs in these cases is identification of the actual products at issue — both the vaping device and the battery. Both will often be completely destroyed after the explosion. Counterfeit batteries are common, and even a clearly labeled battery could require expert analysis to confirm the manufacturer. In many cases, defendants will need to retain their own expert to confirm or dispute product identification.

Another challenge plaintiffs face is the distribution chain itself. Frequently these products are manufactured overseas, and travel through various distributors before reaching the United States. It is important for defendants, especially those representing manufacturers and distributors, to be mindful of personal jurisdiction defenses throughout the case. Given the difficulties present in the chain of distribution, plaintiffs may choose to focus on retailers and manufacturers of the actual vaping device over other defendants that are more difficult to reach.

Four Things to Keep in Mind as a Defendant

Confirm Your Product

Don’t give in on product identification. Retain an expert if necessary, and confirm that you are the actual manufacturer, distributor or retailer of the battery or associated product at issue. Beware of potentially facing liability for a knockoff.

Get to Federal Court

Often there will be complete diversity in battery cases, especially when the retailer is unknown or not part of the case, allowing for removal to federal court. Federal court is almost always more predictable, and favorable towards defendants.

Don’t Forget Personal Jurisdiction

Remember: Just because the explosion and consequential injury occurred within the state where the case is filed does not mean that the cause of action arises out of your client’s activities within that state. Personal jurisdiction is often more viable than many attorneys realize, and can be a powerful tool to dismiss a case or significantly lower settlement demands.

Don’t Wait to Obtain and Collect Evidence

The most crucial pieces of tangible evidence will not just be the battery and vaping device itself. Clothing, cartridges and even the contents of the plaintiff’s pockets could all be valuable to defendants and their experts to determine exactly what caused an explosion.

As plaintiffs continue to file these cases and develop new and creative theories of liability, it is important for defendants to stay up to date on the latest developments and position themselves early to mount a vigorous defense.

Edward P. Abbot is New York partner-in-charge and David E. Freed is an associate at Hawkins Parnell & Young LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] FEMA – Electronic Cigarette Fires and Explosions in the United States 2009-2016 (July 2017).

[2] https://www.nbcnews.com/health/health-news/battery-behind-dangerous-deadly-e-cigarette-explosions-n1032901, accessed Oct. 18, 2019.

[3] Lydia Zacarias and Steven Thomas Brown, Individually as Heirs at Law, and as Representative of the Estate of William Eric Brown, Deceased, 153rd Judicial District of Tarrant County, Texas, Case Number 153-303073 (2019).

[4] Tommaso Giusti v. LG Chem Ltd. et al. (New York Supreme Court, Suffolk County, 2019).

[5] Underwriters Laboratories is a global safety certification company, and is an industry standard in product safety certification across the world for a multitude of products including electrical equipment and electronic products.

[6] FEMA – Electronic Cigarette Fires and Explosions in the United States 2009-2016 (July 2017).