Litigating the Electronic Vape Device Exploding Battery CaseOctober 31, 2019 – Article
Just as there has been a rapid rise in the use of electronic cigarettes (electronic nicotine delivery systems, or “ENDS”) and electronic THC delivery devices, so too has there been a rise in litigation involving instances of exploding lithium ion batteries and related personal injury lawsuits. These lawsuits often involve catastrophic injuries including severe burns, disfigurement, permanent disability, and even in some cases, death. 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. This month, a case was filed in Suffolk County, NY alleging that an electronic vaping device battery exploded while in the plaintiff’s pocket, causing severe burns. Both plaintiffs and defendants face several unique challenges in this litigation and 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 nicotine and THC delivery systems, like electronic cigarettes, vape pens, and other electronic vaping devices. They are lightweight, cheap, 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, its important to keep in mind that unlike their use in laptops or cellphones, with electronic vapor devices, the batteries are used specifically to create the high heat needed to create vapor. The batteries can explode due to a short circuit generating excessive heat and in turn growing internal pressure until the battery ruptures. External short circuits in some cases can actually be caused by prolonged contact with items such as keys, loose change, and other metallic objects, which unsurprisingly are commonly found in the same pockets consumers keep these batteries. While Underwriters Laboratories (“UL”) has developed standards relating to lithium ion battery safety, 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 developing.
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 FEMA 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 and plaintiffs will simply claim that there was nothing wrong with the product and they were either using it as normal, or simply had it in their pocket, when it unexpectedly exploded – exactly what is alleged in the Suffolk County, New York lawsuit.
Defendants will usually involve more than just the battery manufacture. Frequently defendants will additionally include the manufacturer of the vaping device itself, retailers, and distributors. Theories of liability include strict products liability claims such as defective design and defective construction, failure to warn, as well as general negligence and breach of implied warranties. Plaintiffs are also developing an additional legal theory of causation - the exploding battery injury was caused not just by faulty product manufacturing but as a result of addiction to nicotine. In line with that theory, often that battery at issue is actually a spare battery which the user brought along 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 battery and vaping device. Both will often be completely destroyed after the explosion. Additionally, 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 may be 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 more difficult to reach defendants.
Some 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 vape 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. For more information please contact Edward Abbot and David Freed.
 July 2017 FEMA – Electronic Cigarette Fires and Explosions in the United States 2009-2016.
 https://www.nbcnews.com/health/health-news/battery-behind-dangerous-deadly-e-cigarette-explosions-n1032901 accessed October 18, 2019.
 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, Cuase Number 153-303073 (2019).
 Tommaso Giusti v. LG Chem, Ltd. et al, (New York Supreme Court, Suffolk County, 2019).
 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.
 July 2017 FEMA – Electronic Cigarette Fires and Explosions in the United States 2009-2016