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The Dangers of Vaping: A Primer on Litigating Exploding E-Cig Cases

The claims of vaping proponents are common enough: that it is an alternative to traditional cigarettes, and a safer, cleaner way to get a nicotine fix than traditional tobacco products. Combined with claims that vaping also can be a smoking cessation device, sales of electronic cigarettes (“e-cigs”) have exploded in the last decade. An e-cig offers doses of nicotine with a vaporized solution, providing a physical sensation akin to tobacco or smoke. The $3.7 billion industry has fueled the rise of thousands of small stores across the nation, and hundreds of distributors and importers shipping component parts from places as far flung as China. A 2015 CDC survey estimated that nearly 13% of Americans had tried an e-cig in their lifetime and that more than 9 million adults use e-cigs regularly.

But this burgeoning industry has a darker side. Many of the component parts—particularly the batteries and chargers—are manufactured in foreign factories, without sufficient safety testing and production guidelines. As a result, many e-cigs on the marketplace today lack the electronics and other safety measures to prevent dangerous high-voltage charging and low-voltage discharge. Each can lead to short-circuiting, overheating, and even fires. Across the country, batteries and e-cig containers are exploding in the hands, pockets, and mouths of innocent users, causing permanent injuries that range from painful burns, broken teeth, and scorched gums, to the loss of an eye and even worse.

This article will explore a first-of-its-kind verdict against an e-cig wholesaler, distributer, and retailer, strategies for litigating e-cig cases, and some potential pitfalls that arise.

A Novel Case Against the E-Cig Industry: Jennifer Ries v. VapCigs

On March 21, 2013, Jennifer Ries purchased a VapCigs E-Hookah E-Cigarette Starter Kit (“VapCig”) at The Tobacco Expo in Corona, California. The VapCig package included an e-cig, a charger, and a battery. The “supply chain” of that product included the distributor, VapCigs, which sold the product to the wholesaler, Cartons 2 Go, which in turn sold the product to the retailer, The Tobacco Expo, who ultimately sold the product to Mrs. Ries. On March 25, 2013, Ries, along with her husband, were en route to the airport for a mission trip to Brazil with the human rights organization, Passport 2 Freedom. While her husband drove, Ries charged the VapCigs battery in her car charger. Shortly after plugging in the charger, the couple noticed a strong odor that smelled like nail polish remover and saw liquid dripping from the battery.

As Ries picked up the VapCig, the battery suddenly exploded, shooting flames out the back like a rocket, catching her dress and car seat on fire and spewing chemicals over her lap. Surrounded by flames, Ries reached for the door handle to jump out of the car traveling down the freeway. Fortunately, her husband grabbed her before she was able to jump and threw an iced coffee on Ries to put out the flames.

Although the fire was out, Ries was still being burned by the chemicals on her skin. Her husband rushed her to an urgent care where they were able to carefully clean the chemicals off her skin. Ries sustained severe chemical burns on both thighs, her buttocks, and hands. The burn wounds took months to heal and resulted in scarring. Ries also suffered from severe emotional trauma as a result of catching fire while trapped in a vehicle traveling 65 miles per hour.

We represented Ries at trial against the distributor, wholesaler, and retailer on a cause of action for strict products liability, based on design and warning defects in the VapCigs products. After more than a day and a half of deliberation, the jury returned a verdict—the first of its kind in the nation based on an e-cig product—for $1,885,000. (Jennifer Ries v. VapCigs, et al. (Super. Ct. Riverside County, 2015, No. RIC 1306769).)

But this injury—and the explosion of the e-cig product—is not an isolated occurrence. We are currently in the process of handling more than 60 similar explosions, around the state and across the country. Clients have lost teeth, suffered gum damage, incurred burns, bruises, and shrapnel wounds. One client even lost an eye and another suffered a literal hole in his cheek due to these dangerous products

As we work together to curb these dangers, cases involving e-cig products also raise a number of interesting issues and potential pitfalls.

Theories of Liability

Generally, the two most relevant theories of liability are based on strict products liability arising out of a design defect (California Civil Jury Instructions (“CACI” 1203 – Consumer Expectations Test) or a warning defect (CACI 1205 – Failure to Warn). As it relates to a design defect, “[a] Exploding e-cigs are a hazard to consumers across the nation. Although we are working with state and federal regulators to ensure the safety of these products, litigation still has a vital role to play in shaping the marketplace and safeguarding consumers.” manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way.” (Soule v. GM Corp (1994) 8 Cal.4th 548, 560.) “Strict liability has been invoked for three types of defects—manufacturing defects, design defects, and ‘warning defects,’ i.e. inadequate warnings or failure to warn.” (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.) A consumer injured by a defective product may sue “any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer; liability of all such defendants is joint andseveral.” (Kaminski v. Western MacArthur Co. (1985) 175 Cal.App.3d 445, 455–456 (citations omitted).)

All defendants in the chain of distribution of the product are strictly liable for the harm caused. Under California law, the court is allowed to provide the jury with either of two liability instructions: the consumer expectation test (CACI 1203) or the risk-benefit test (CACI 1204). As a general rule, “[i]f the facts permit an inference that the product at issue is one about which consumers may form minimum safety assumptions in the context of a particular accident,” then the consumer expectations test should be applied. (McCabe v. American Honda Motor Co., Inc. (2002) 100 Cal. App.4th 1111, 1120.) To establish strict liability for a design defect, a plaintiff must show: (1) that the defendant manufactured, distributed, or sold the product; (2) that the product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in a reasonably foreseeable way; and (3) harm to the plaintiff; and (4) the product’s failure to perform safely was a substantial factor in causing the harm. (CACI 1203.)

Defendants in the chain of distribution of an e-cig product can also be strictly liable for failing to warn of the potential risks of the e-cig from reasonably foreseeable use. Namely, it requires the plaintiff to show: (1) the defendant manufactured, distributed, or sold the product; (2) the product had potential risks that were known or knowable at the time of the manufacture, distribution or sale; (3) the potential risks presented a substantial danger when the product is used or misused in a reasonably foreseeable way; (4) ordinary consumers wouldn’t recognize the potential risks; (5) the defendant failed to adequately warn of the risks; and (6) harm to the plaintiff plus causation. (CACI 1205.)

Most e-cigs—particularly the popular “mod” variety, which produces a more potent smoke and more satisfying experience—use a cylinder lithium-ion battery. Lithium-ion batteries are excellent sources of power for portable devices, such as cell phones, laptops, and drones. The lithium battery consists of layers of metallic anode and cathode material separated by a porous film w