Trial Magazine

If you walk outside, you likely will see someone using an e-cigarette. When these popular products catch fire or explode, they can cause devastating, life-altering injuries requiring months, if not years, of medical care. Victims are sometimes permanently disfigured, and injuries often involve thermal and chemical burns reaching deep into the tissue and bone, as well as severe damage to bone structure and facial features. But despite the serious nature of these injuries, tying liability to a responsible entity may not be as simple as you think, and you must carefully consider several factors as you screen these cases.

Lithium-ion batteries are used as the primary power source for e-cigarettes because they are energy dense and compact. One size of these batteries has consistently been the most popular: the 18650 lithium-ion battery. Unfortunately, lithium-ion batteries of all shapes and sizes carry an inherent risk of fire or explosion due to their chemical makeup.¹

Slightly larger than your standard AA battery, an 18650 lithium-ion battery can be deceiving to the consumer and may appear no different from a battery that can be purchased at a local convenience store. However, 18650 lithium-ion batteries have exposed metal positive and negative connections that can short circuit when they come into contact with other metal objects, such as keys or loose change in a pocket.²

Once shorted, the 18650 lithium-ion battery can overheat and experience thermal runaway (uncontrolled self-heating of the battery), resulting in fires, explosions, serious injuries, and even death.³ And when it comes to e-cigarettes, many of the devices require the user to choose and purchase the batteries that meet the specifications of the device, as well as adequate chargers. Often, the consumer is left with little or no guidance from the manufacturers or sellers as to what 18650 lithium-ion battery is compatible with the device, nor are there instructions on proper usage of the subject battery.

When handling fire or explosion cases involving e-cigarette lithium-ion batteries, start by understanding the chemistry and construction of the batteries you are investigating. This familiarity will allow you to effectively investigate and gather evidence for the experts. It helps to think like a fire investigator tasked with determining all potential reasons for the fire or explosion.⁴

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Collect each device the battery was used in or charged with and as much of the debris surrounding the incident as possible.

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1. Physical Evidence

Immediately preserving the evidence ensures the best chance of determining the cause of a fire involving lithium-ion batteries. For 18650 lithium-ion batteries, this means collecting each device the battery was used in or charged with and as much of the debris surrounding the incident as possible.

Spare batteries or companion batteries (the second battery purchased in a pack of two)—which could show flaws such as mechanical wear or electrical arcing damage (evidence of melting at the point of contact from two conductors)—are beneficial for identifying whether a device or component contributed to the subject battery’s failure. For example, forensic analysis of the electrical arcing damage can reveal the composition of the conductive material to identify the source of the short.

Practically speaking, the spare batteries also demonstrate how well your client cared for their e-cigarette device and batteries. Visible scuff marks, dents to the battery, or tears of the wrapper surrounding the battery could support the defense’s position that your client’s negligence caused the incident.

Most 18650 lithium-ion battery incidents leave the following evidence: the copper electrodes, the steel canister, the battery’s vents, and often many small pieces that are easily lost or further damaged. (See below for the components of an e-cigarette.) With this evidence in hand, an expert will have an easier time determining the cause of the fire or explosion.

Early review of the evidence provides valuable information to negate common defenses such as “not our battery” or “your client did something wrong.” The information gleaned from the analysis also can keep you from potentially litigating a case for months only to find out that another company made the battery or it is a knockoff made by an unknown company.

2. Common Defects

Two significant defects endure in e-cigarette 18650 lithium-ion batteries: thin battery wrappers and a lack of adequate warnings. Manufacturers continue to make these batteries with a thin plastic wrapper that cannot withstand the normal wear and tear that comes with rechargeable batteries. Regular use frays and tears the wrappers, which allows the positive and negative connections at the top of the batteries to short and become an ignition source.

Inadequate warnings also continue to be another major defect in e-cigarette products, even though most vaping products now come with some form of warnings and instructions. The question to keep in mind is whether the warnings adequately communicated to users the consequences of failing to comply with the cautions.⁵ For example, a warning may communicate to consumers about when to replace a battery, but it does not discuss the consequences of failing to do so.

Many incidents involve other, less obvious defects with the design of the battery’s safety features, such as the current interrupt device or the positive tab’s thickness.⁶ These supposed safety features are intended to minimize thermal runaway events. Nevertheless, in many cases, they make the battery failure much worse when they do not perform as intended, resulting in a more severe explosion.⁷ A good expert will guide you through these defects.

3. Experts

Identifying experts is crucial to proving your client’s case­­—here are the ones you will need.

Engineer. You need an engineer with a specialty in electrochemistry. You may identify one with knowledge in building and repairing e-cigarettes, but we suggest finding someone with specific expertise and knowledge in lithium-ion batteries.

After you’ve gathered the physical evidence, the engineer can perform a nondestructive exam, which will assist with product identification. This may seem simple, especially when clients say they purchased a specific brand, but this information is vital to confirming or identifying your defendants. Your engineer may verify your client’s claims and potentially identify additional defendants. Because of the secondary market for e-cigarette batteries, you also may have an authentic lithium-ion battery that has been modified (for example, rewrapped and sold as another model or brand), thereby complicating identifying potential defendants.

Human factors. Since warnings are a key factor in e-cigarette cases, consider retaining a human factors expert with experience analyzing consumer product warnings. When 18650 lithium-ion batteries became predominant in the e-cigarette market, few, if any, warnings were given to consumers. Instead, a loose battery was often sold to customers who would use it in accordance with their understanding of how to operate a battery. Unfortunately, this led to many people placing the lithium-ion batteries in their pockets with other metal, which can lead to external short circuiting.

A human factors expert will be crucial to evaluating your client’s actions—or inaction—within the context of the case and to identifying cues that likely guided your client’s behavior. Specifically, a human factors expert can analyze the information provided, if any, by e-cigarette businesses and its impact on the user, your client.

For example, if a defendant claims the vape store where your client purchased the battery had a warning sign, this expert can analyze its impact on your client based on its location, appearance, or other factors that could have caught your client’s attention. Similarly, human factors experts consider product design, product use expectancy, risk perception, and warning adequacy.

Damages. Damages in these cases are largely the significant burns your client suffered from the initial incident involving the battery. Burn specialists, including plastic surgeons, will be your primary medical experts.

There are multiple degrees of burns: “first” through “fourth,” with “fourth” being the most significant.⁸ In many instances, the burn will require a skin graft. In some cases, your client may have an infectious disease doctor caring for the wound post graft. Your client’s initial physical injuries and treatment will be quite extensive following the event. Have your client’s treating physicians explain the long-term damage suffered from the burns.

4. Insurance Coverage

Determine, as soon as possible, whether the sellers and distributors in the case have insurance coverage.

No insurance or exhausted policies. Many vape shops and distributors have insurance—just not insurance to cover products liability claims. When you reach out to a vape shop, a representative typically will advise that the shop has coverage, but that it only covers the shop if someone slips or trips and falls inside the establishment. Look into the policy to see whether coverage will apply to your client’s case.

Exclusions. Insurance companies have written exclusionary language for vape shop policies that could apply to 18650 lithium-ion batteries. The most basic exclusion is quite simple: There is no coverage for any incident involving an 18650 lithium-ion battery. Insurance companies know these batteries are exploding and realize that vape shops are continuing to sell them. Coverage for incidents involving 18650 lithium-ion batteries has become extremely expensive, which is why your defendant may not have any.

 

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Even if the vape shop or distributor has insurance coverage for incidents involving 18650 lithium-ion batteries, check the policy coverage language very carefully.

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Sublimits. Even if the defendant vape shop or defendant distributor has insurance coverage for incidents involving 18650 lithium-ion batteries, check the policy coverage language very carefully. Insurance companies that offer coverage for incidents have begun adding sublimits that would apply to your case.

Consider a vape shop with a traditional business insurance policy covering incidents that may result from invitees frequenting the business. For purposes of available coverage, if a customer slips and falls inside the vape shop, there may be $1 million in coverage. However, if a person purchases from the same vape shop a battery that explodes, the same insurance policy may only offer bodily injury coverage up to $250,000, a quarter of the limits for other bodily injury claims.

To make matters even worse, policies containing 18650 lithium-ion battery sublimits also may contain language that encompasses counsel fees and costs. As a result, the case becomes that much more challenging because any effort on your part requiring input from the defense counsel only diminishes the funds available to your client.

5. Jurisdiction

Many of the defendants in these cases, notably manufacturers such as Samsung and LG Chem, are located outside of the United States, making jurisdiction an issue. Defendants will question whether the plaintiff’s claims “arise out of or relate to” their contacts with the forum, challenging whether the court has specific personal jurisdiction.⁹

Manufacturers’ stance on personal jurisdiction. The prominent manufacturers of 18650 lithium-ion batteries take a unique position that their batteries were never intended for vaping devices (in other words, they are not serving the vaping market and therefore a plaintiff’s claims do not “arise out of or relate to” their contacts with the forum).

Samsung and LG Chem, for example, have repeatedly argued that they do not distribute their batteries to the United States to be used in vaping devices. Furthermore, both companies highlight that any sales made to U.S. entities were limited to sophisticated customers, such as battery pack makers, and that all other sales were unauthorized or done on a secondary black market. The companies argue that the unilateral activity of third parties cannot satisfy the due-process requirement that an out-of-state defendant have minimum contacts with the forum state.

In response, consider whether they are making merits-based defense arguments that are irrelevant to personal jurisdiction—about the supposed unauthorized use of their batteries—rather than jurisdictional denials. “[T]he question whether there was an unforeseeable misuse of the product by the injured plaintiff goes to the substantive merits of a products liability action and can be addressed in that context.”¹⁰

SCOTUS Ford decision. In March 2021, in Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer, the U.S. Supreme Court directly addressed the “arise out of or relate to” context.¹¹ Justice Elena Kagan’s majority opinion rejected the defendant’s arguments that the state courts lacked personal jurisdiction, clarifying that “none of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do.”¹²

Instead, the Court stressed that its “most common formulation of the rule demands that the suit ‘arise out of or relate to the defendant’s contact with the forum.’”¹³ As Justice Kagan explained, “some relationships will support jurisdiction without a causal showing.”¹⁴

Moving forward, in cases involving 18650 lithium-ion batteries, plaintiffs should rely on Ford and argue that the defendants formed partnerships with companies throughout the United States with the intent of dominating the U.S. lithium-ion battery market. The plaintiff then must establish that the manufacturer has ties with the specific state, those ties involve its intent to sell its products there and receive benefits from doing business there, and it therefore does not violate due process to hold the manufacturer responsible in that forum.

Evidence. To establish specific personal jurisdiction, be prepared to allege that your case arises out of some action or contact by the defendant in the forum state or that the case relates to the defendant’s contacts with the forum state.¹⁵ As an example, you could argue that the defendant advertised, marketed, distributed, and placed its products into the forum state’s market (through wholesalers and distributors to canvas the entire country without restriction) with the expectation and intention that the products be sold or used in the forum state. Do not overlook the basic facts illustrating the relationship among the defendant, the forum, and the litigation.¹⁶ Assume that a motion to dismiss for lack of personal jurisdiction is inevitable.

When the defendant files its motion, start your analysis with whether the defendant’s evidence, usually presented in the form of an affidavit, controverts your jurisdictional facts and shifts the burden back to you. Next, consider seeking leave to conduct jurisdictional discovery. Or, if jurisdictional discovery is not an option, consider hiring an expert capable of compiling a defendant’s contacts with the forum. The defendant’s website, financial statements, and sustainability reports often contain useful evidence. Government websites or third-party services also may lead you to the defendant’s sales or imports into the forum state, among other information.¹⁷

Split court decisions. To date, courts throughout the country remain divided on the “arise out of and relate to” contacts necessary for jurisdiction, as well as the product use argument. For example, the Supreme Court of Georgia recently declined to review an appeals court ruling that LG Chem could be sued in Georgia because it directs its products into Georgia’s stream of commerce.¹⁸ In contrast, the Eleventh Circuit affirmed the dismissal of five consolidated cases against LG Chem in which plaintiffs from different states asked the district court in Georgia to assert personal jurisdiction over LG Chem based on its contacts with the United States as a whole.¹⁹ There are numerous instances of wins and losses on these issues at appellate courts throughout the country.²⁰

No battery should explode. But 18650 lithium-ion batteries do and catastrophically injure or even kill the people using them to power devices. When an e-cigarette battery case comes to your office, do the proper planning to overcome the litigation obstacles and best serve your client.²¹

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William Sutton is a principal at Beasley Allen Crow Methvin Portis & Miles in Montgomery, Ala., and can be reached at william.sutton@beasleyallen.com. Domenic Sanginiti Jr. is a shareholder at Stark & Stark in Lawrenceville, N.J., and can be reached at dsanginiti@stark-stark.com.

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Notes

1. See Mohammadmahdi Ghiji et al., A Review of Lithium-Ion Battery Fire Suppression, 13 Energies 5117 (2020).
2. Consumer Prod. Safety Comm’n, CPSC Issues Consumer Safety Warning: Serious Injury or Death Can Occur If Lithium-Ion Battery Cells Are Separated From Battery Packs and Used to Power Devices, Jan. 8, 2021, https://tinyurl.com/ycyumj4p.
3. See id.; Ghiji et al., supra note 1.
4. Particularly, attorneys should be familiar with Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire and Explosion Investigations (2021).
5. See Jarrell v. Monsanto Co., 528 N.E.2d 1158 (Ind. Ct. App. 1988).
6. These features serve as fuse-type devices that cut off the electrical circuit when triggered by excessive pressure or high temperature.
7. See Bin Xu et al., Protection Devices in Commercial 18650 Lithium-Ion Batteries, 9 IEEE Access 66687, 66689–90 (2021); see also Ghiji et al., supra note 1.
8. Stanford Med. Child. Health, Classification of Burns, https://tinyurl.com/2p9s847p.
9. See, e.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021).
10. LG Chem, Ltd. v. Lemmerman, 863 S.E.2d 514, 524 (Ga. Ct. App. 2021).
11. Ford Motor Co., 141 S. Ct. at 1025. For more on this decision, see Deepak Gupta, A Victory for Common Sense, Trial, July 2021, at 46.
12. Ford Motor Co., 141 S. Ct. at 1026.
13. Id.
14. Id.
15. The Supreme Court in Ford clarified that the “relates to” portion of the standard supposes that some relationship will support jurisdiction without a causal showing. For example, when a company “serves a market for a product in a State and that product causes injury in the State to one of its residents,” the state’s courts have specific personal jurisdiction to hear the case. 141 S. Ct. at 1022, 1026.
16. In Ford, “the plaintiffs [were] residents of the forum States. They used the allegedly defective products in the forum States. And they suffered injuries when those products malfunctioned in the forum States.” Ford Motor Co., 141 S. Ct. at 1031. The plaintiffs in Ford had therefore picked proper forums; they had “each . . . brought suit in the most natural State[.]” Id.
17. Services such as importgenius.com provide global import records from U.S. Customs & Border Protection.
18. Lemmerman, 863 S.E.2d at 524, cert. denied, (Ga. 2022) (The court of appeals ruling noted that the question of whether there was an “unforeseeable misuse” of the battery is relevant to “merits of a products liability action” but irrelevant to personal jurisdiction.).
19. Durham v. LG Chem, Ltd., 2022 WL 274498 (11th Cir. Jan. 31, 2022).
20. LG Chem, Ltd. v. Hagan, 148 N.E.3d 558 (Ohio 2020); Lemmerman, 863 S.E.2d 514; LG Chem, Ltd. v. Super. Ct. of San Diego Cty., 80 Cal. App. 5th 348 (Cal. Ct. App. 2022).
21. For more resources, join AAJ’s E-Cigarettes Litigation Group at justice.org/litgroups.