Over the last three months, numerous exploding electronic cigarette (e-cigs) stories have made the news. These incidents occurred in places such as Flower Mound, TX (near Dallas), Colorado Springs, Betonville, AR, and Naples, FL. Unlike at least 25 other exploding e-cig stories that have been documented since 2009, this new rash of stories is notable for the increased severity in the victims' injuries, ranging from third degree leg burns to potential paralysis. Contrary to assumptions in the press, pursuing claims against e-cig manufacturers and retailers is not as simple a matter as it might appear and these subtleties mean that a victim needs to find an experienced products liability lawyer.
The reason potential e-cig claims may be more complicated than other product liability claims is due to the nature of the e-cigarette market. In the stories that identify and show pictures of the e-cig, which failed and injured its user, it appears that the e-cigs in question are not fully assembled products, but rather mods. To use an example of more familiar to people who do not use electronic cigarettes, rather than being a chair or table or a single product from a single manufacturer, many e-cigs are the equivalent of an entire dining room set.
For example, let's say that you were eating dinner in your dining room and one of the legs of your dinner table collapsed. In the process, your wine glass fell over, broke, and cut you pretty severely, so that you needed to go to the hospital for stitches. We can all see that although the wine glass was the object, which directly injured you, it was a possible manufacturing defect with the table leg that led to your injury, since tables generally don't collapse under normal use. It seems to be pretty cut and dry.
However, let's tweak the scenario and instead of regular wine glasses, you had a whole set of massive 100 pound giant glasses, which were sold to you as wine glasses (I know 100-lb wine glasses are absurd, but bear with me for a second). If you had your table set with 8 of these behemoths, like you would set a table with any other wine glass, there's a fairly good chance your dinner table was not designed to support that much weight. This time, the table collapses again, due to the tremendous weight of the world's biggest wine glasses. The glasses again break and give you a pretty nasty cut. Would anyone still blame the table manufacturer for making a defective product? Of course not. Instead we would ask, "Why anyone would manufacture and market a set of 100 lb. wine glasses?" Since e-cigs are more like an entire dining room set than an individual piece of furniture, it is necessary to determine, which particular piece is responsible for the injury, just like in the examples above where different products caused the same injury.
E-cig mods are meant to be customizable by the user. There are three main components, the battery, the atomizer (a coil for vaporizing the vape liquid, or "juice"), and a juice tank. Mod kits merely function as a means for assembling these components. Many of these components are manufactured by different companies, meaning that attributing liability for injuries can be a tricky proposition at best. It is made more difficult in Texas because manufacturers are shielded from liability if a product has been modified by the consumer. Modification kits by their very nature invite the consumer to modify their product. If it is modified too much from how the product came out of the box, it is possible that in some situations a manufacturer would attempt to blame the e-cig user for causing their own injuries.
To get a clearer understanding of this concept, it is helpful to visualize a car. Imagine that you bought yourself a brand new Ford F-150. For whatever reason, you did not like the braking system, which came with your new truck, so you decide that you and a buddy are going to rent a shop and totally redo the brakes on your truck. After you get done, you take your new truck on the road and the brakes fail, resulting in an accident that injures you and your buddy. I think anyone can see that it would be completely unfair if one could turn around and make a claim against Ford for making a dangerous truck, when they had absolutely nothing to with the modifications that you made. The same type of protection applies to some degree to the manufacturers of e-cig parts. In addition to giving the consumer the ability to personalize their e-cig, mods sometimes have the added ability of providing more legal protection to the manufacturers.
As with anything in the law, this protection is not absolute and both manufacturers and experienced product liability attorneys knows this. While a manufacturer may argue that their particular component design is perfectly safe when used properly, they have a duty to warn consumers of potential, known risks associated with misuse of the product. In product liability, these are what are known as marketing defects. Marketing defects generally fall into four categories:
- Failure to warn of dangers or risks of harm.
- Failure to adequately warn of dangers or risks of harm.
- Failure to provide instructions for the safe use of a product
- Failure to adequately provide instructions for the safe use of a product
While we can argue how widespread the problem is, that there are dangers from e-cigs is beyond dispute. It is certain that most e-cig components do not come with warnings about proper use. In such cases it is possible that the manufacturers of each component, or some combination of manufacturers could be liable for marketing defects. Quite simply, rather than potentially having a claim because the products in an e-cig build are individually dangerous, the manufactures could face liability for knowing, but not warning consumers that improper builds could result in catastrophic accidents.
In articles about electronic cigarettes from a few years ago, you could see manufacturers anticipating marketing defects claims when they would say things like "the product has been used billions of times without incident," or they would deny that they had ever heard of injuries to their product. While these statements may have come from ignorance, the fact that e-cigs are powered by lithium ion batteries, lithium ion batteries the very thing that causes these incidents of e-cigs gone wrong, and safety issues regarding lithium ion batteries have been known for years, this is another instance where ignorance does not work as a legal excuse. Just by the fact that manufacturers chose to make lithium ion batteries essential to the normal functioning of their product means that they had a duty to warn consumers of potential dangers associated with the batteries.
In addition to the battery, the mod housing is another component where it is not difficult to envision a scenario where they may have some design liability. In the case of mod housing manufacturers, whose product is usually a sealed metal tube or box, the fact that the tubes are sealed prevents users from quickly being able to spot battery issues. In some instances the mod tubes are no more than metal cases with electrical connections at each end. The only airflow they permit is regulated at the top of the mod, to allow air to flow over the coil, so the hot air can vape the juice. In situations where the entire e-cig explodes and shoots shrapnel into the user, one of the main factors could be a lack of venting around the battery allowing for gasses to escape. The reason that it shoots users in the face is because that is the most structurally unsound part of the mod housing.
When lithium ion batteries fail, often they heat up suddenly producing a fair bit of gas. The batteries are designed to vent some of this gas, however in a thermal runaway situation, the gas can build up faster than the battery can vent it. Even if the battery is venting the gas properly, a poorly designed mod could allow the gas, now free from the battery, to build up and become trapped in the mod tube. If too much pressure builds up from released gasses, it could be responsible for some of the exploding e-cig events, which have popped up in the news. Even if the mod itself isn't responsible for the explosion, most are designed so that the weakest point faces the user. This directs a blast from an unstable battery into the head and neck area of the user, resulting in injuries that are worse than they would otherwise be.
Of course, design liability in this explosion scenario could also lie with the battery maker. It has been documented that lithium ion batteries made from cheaper materials have a greater risk of thermal runaway and potential explosions. This is because the cheaper materials in some lithium ion batteries contain inferior materials and undergo thermal runaway at much lower temperatures than their better manufactured counterparts. Most experts in the e-cig modding community do not recommend that consumers try to save a few bucks on the batteries. On the contrary, these experts recommend better built batteries for both safety and performance reasons.
Rather than a marketing defect, batteries made form substandard parts, which fail more often than other batteries could be grounds for a different kind of claim against the manufacturer, a defective design claim. The key component to this claim would be the availability of safer designs. While dangerous products can be sold all the time without liability to the manufacturer, like axes, cars, butter knives, and chainsaws, manufacturers become liable when their product is more dangerous than its peers, because the manufacturer chose not to incorporate a safer design into their product. To use an extreme example, you could not sell a glass chainsaw. Anyone can see that a glass chainsaw would break apart and present a ridiculous danger to the user. It becomes obvious why someone would be liable if they were to manufacture and sell a glass chainsaw that was meant to be used just like a regular chainsaw.
If all of the different components of an e-cig sound a bit confusing after all of this, try to imagine how disorienting it would be for someone walking into a vape shop for the first time or trying to assemble a custom e-cig from parts off the internet. This confusion also leads to another possible bad actor, retail outlets. If you didn't get a chance to look at the story about the e-cig in Bentonville, AR, the relevant part is that the victim of an exploding e-cig claims to have purchased his set-up from a store, taken it home, and it exploded when he attempted to use it. The story also clearly states that the man's e-cig was in fact a mod and that the victim had purchased the e-cig in an effort to quit using tobacco.
If what is being reported is true, all of this leads me to believe that the man was most likely not an expert in the area of e-cigs. In all likelihood he was just a tobacco user trying to find a way to kick the habit who had heard about e-cigs. It seems next to impossible that he had the expertise to assemble the components of a mod without some assistance from the clerk at the store. Is it possible he went in and grabbed the cheapest stuff he could find and said "I'll take this?" Yes, but it is terribly unlikely, because without some knowledge, most people would not know names of the different parts needed to assemble a functioning e-cig mod.
For the sake of illustration, if we assume that the gentleman in Bentonville did not have the knowledge to assemble his own e-cig, then he had to rely on the expertise of a clerk in the store. If upon the clerk's recommendation, the guy ended up with the dangerous set-up that injured him, the clerk may have committed a breach of warranty with respect to a warranty of fitness for a particular purpose. Put more simply, if the clerk said that this was a safe, functioning set-up for an e-cig, and it has subsequently been shown that it probably wasn't, since the clerk is the expert and the customer relied upon his recommendation, his dangerous recommendation could expose both him and the store to a claim for damages.
The example is much clearer if we substitute a pool supply store for the vape shop. Suppose that you have a pool in which the water has turned green due to algae. You, knowing nothing of pool chemistry, take a sample of pool water into the store and have it analyzed. The pool store folks tell you that you need five scoops of chemical A, and that your pool will be crystal clear and ready to swim in in 24 hours. You follow their instructions and wait 24 hours. The water seems clear so you go for a swim, yet everything goes horribly wrong when your skin and eyes begin to burn. Next thing you know, you have bad chemical burns all over your body.
I think most of us can see that the salesperson screwed up when they sold the wrong type of chemical. When their expert advice results in injury, they are certainly more to blame for an accident than the person who relies on their judgment when making the purchase. The salesman who sells the wrong flotation device is little different than a salesperson who sells and improper e-cig set-up.
Of course, without knowing the particular facts of any specific case, such analysis is more an exercise in probability than concrete legal judgment (heck at the end of the day it is only judges and juries who ever really get to make a concrete legal judgment). Any of these incidents should be investigated thoroughly to determine exactly what went wrong. It is certainly possible, like with any other product that there are errors or modifications made by the consumer for which manufacturers and salespeople would have absolutely no liability.
Certainly, this in no way detracts from our sympathies for anyone who has been injured by any product. One only has to read a few of these e-cig stories to be horrified by how devastating these injuries can be. Regardless of how it happened or who is to blame, you cannot help but empathize with any human being suffering like these folks have. At that same time one can still be struck by the elasticity of our legal system that rules put in place by people who could never have envisioned products like lithium ion batteries or electronic cigarettes are so remarkably adaptive and able meet the needs of manufacturers and consumers alike.