Exploding Vaporizers – Has the Product Been Modified?

November 9, 2020Article

Recently in California, in Gonzalez v. The Vapor Trail, Cal. Court of Appeals, 4th Dist., 1st Div. 2020, defendant The Vapor Trail (“Vapor Trail”), a smoke and vape retailer earned a defense verdict by successfully proving that it did not sell the vaporizer device at issue, which the Plaintiff claimed had exploded in his face and which he alleged he purchased at the Vapor Trail store.[1] In its decision, the court correctly pointed out that the vaporizer consisted of several interchangeable component parts and that there was conflicting testimony regarding whether all components were purchased at Vapor Trail and regarding who had assembled the final product. This presents an excellent opportunity to discuss the components of electronic nicotine delivery devices (ENDS or e-cigarettes) and some legal concepts behind product modification.

Briefly, an electronic cigarette generally consists of three main components, the battery, an atomizer, and a cartridge. The cartridge holds the e-juice which can come in multiple flavors and sizes and will contain either nicotine or THC. The atomizer heats the e-juice to create vapor which is then inhaled by the user. The battery powers the device. Some vaporizers utilize a push-button or switch to activate the battery and atomizer. Others self-activate upon inhalation without the need for a button or switch. The below image, taken from the Food & Drug Administration webpage demonstrates these main components.[2]

components of electronic nicotine delivery systems

Often, the components shown above can have their own subcomponents offering users a wide range of customization possibilities. In Gonzalez, the product at issue was a “Ragnarok” mod, which the court noted was a stainless-steel mod, which was essentially a metal tube housing the remaining components. The court goes on to point out that device components made by different manufacturers are often interchangeable. As with many products, ENDS components occasionally wear out or break and require replacement. One of the components at issue in Gonzalez was the wire used for the internal coil. The plaintiff’s friend, who had seen the plaintiff’s Ragnarok mod, testified that he saw the plaintiff’s coil wire and that he believed Vapor Trail did not sell wires of that kind. Eventually, it was determined that Vapor Trail did not sell the Ragnarok to the plaintiff and a defense verdict was rendered. 

Although Vapor Trail was exonerated based on proof that it did not sell the Ragnarok, the facts raise an interesting question – who is liable when the user modifies the product? Of course, it has generally been established that a manufacturer, distributor, or retailer of a defective product can be strictly liable for harm arising from the use of the product. See e.g., O’Neil v. Crane Co., 53 Cal. 4th 335 (2012) quoting Greenman v. Yuba Power Products Inc. (1963) (“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being”). However, product manufacturers and sellers are only liable for foreseeable uses of the product. In many jurisdictions, such as New York, “a manufacturer who has designed and produced a safe product will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe.” Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 532 (1991). 

As noted by the Court in Gonzalez, the device at issue was intended for modification and contained several component parts which could have been manufactured by different entities. In fact, the plaintiff’s friend testified that he specifically warned the plaintiff that he was using the wrong internal coil wire. When defending an exploding ENDS case (or any products liability case for that matter) it is crucial that product liability attorneys determine the actual cause for explosion. Was it your product, or was it caused by a component? Was the product modified in an unsafe manner, or was it used as intended? These questions need to be answered before liability can be assigned and all good attorneys will seek answers sooner rather than later to further develop their defenses. In the Gonzalez case for example, had it been determined that the mis-sized coil was the cause of the explosion, it is possible that the manufacturer (or Vapor Trail as the seller) could have been exonerated because of non-foreseeable misuse of the product. These determinations will be fact based, taken on a case by case basis, and depend on the specific laws of the jurisdiction in which each case is venued. Nevertheless, it is crucial that attorneys be knowledgeable as to how these products function and importantly, be aware of the types of modifications end users typically make after the product is sold. As use of ENDS continues to gain popularity and the function and use of these products become more familiar to the general public, so too will the understanding of the interchangeable components and their functions. In the meantime, if you are confronted with one of these cases, learn your product, and remember to pursue these defenses.

Authors: Edward P. Abbot (Partner-in-Charge, New York), David E. Freed (Associate, New York)

[1] For more on how Vapor Trail was able to develop and advance its exculpatory evidence, see Hawkins Parnell & Young's companion article on this case. Available at https://www.hpylaw.com/publications/retailer-liability-for-exploding-vapes-lessons-learned-from-gonzalez-v-the-vapor-trail/.