What Trial Lawyers Need To Know About The Exploding E-cigarette Epidemic Posted on February 21, 2017 by Larry Bodine By William Ourand, Esq. • Newsome Melton, P.A. From the Summer 2016 issue of The Trial Lawyer magazine. E-cigarettes have become a multi-billion dollar industry catering to millions of U.S. consumers. While the businesses behind these devices tout them as being a safe alternative to smoking traditional cigarettes, recent events have shown that these devices pose their own unique set of dangers. The potential for these devices to cause catastrophic injury was recently highlighted by surveillance footage showing an e-cigarette exploding in a man’s pocket as he waited in line to check out at a convenience store. And this was not an isolated incident — a simple Internet search reveals pages of headlines about e-cigarette explosions resulting in catastrophic injuries. The incredible profits being generated by the sale of e-cigarettes make it clear that these products are not going away anytime soon. Unfortunately, this means that unscrupulous businesses will continue to flood the market with defective devices. Past experience with dangerous consumer products, including the BIC lighter litigation from a few decades ago, has shown that the only way to force industry change and protect consumers is for trial lawyers to zealously pursue meritorious cases. This article is intended to serve as a primer for anyone taking on such a case and will do so by analyzing the products themselves, the reasons why these devices are exploding, the current state of regulation for these devices, and finally, the legal theories and hurdles associated with pursuing one of these cases. Why Are They Blowing Up? E-cigarettes are battery-powered devices that mimic the sensation of tobacco smoking by releasing a vapor which resembles traditional cigarette smoke. The first e-cigarette was created in 2003 by Hon Lik, a Chinese pharmacist who invented the device in the hope that he could use it to quit smoking (it did not work — as of June 2015, he still smoked both e-cigarettes as well as traditional cigarettes). E-cigarettes exploded in popularity in the years that followed, and now constitute a $3.5 billion dollar industry. More than nine million American adults are estimated to use e-cigarettes. And more than three million middle and high school students used e-cigarettes in 2015, accounting for more than half of the 4.7 million middle and high school students who used at least one tobacco product that year. The devices come in a variety of shapes and sizes, ranging from cigarette look-a-like “minis,” to midrange “vape pens,” and up to the large “advanced personal vaporizers.” All of the e-cigarette varieties rely upon a heating element that boils a liquid solution poured into the device. The liquid solution is often a combination of nicotine, flavoring, and various chemicals intended to improve the amount and flavor of the vapor produced. The heating element in an e-cigarette requires a power source. This need is met, in turn, by the use of lithium ion batteries. And therein lays the problem. Lithium batteries contain flammable electrolytes. When these electrolytes are heated to their boiling point, the battery’s internal pressure can cause the battery to rupture, at which point the electrolytes will catch on fire. This dangerous propensity is magnified in the case of e-cigarettes because the batteries are installed at the end of the cylindrical devices, which are their weakest points. As such, when a lithium ion battery ruptures in an e-cigarette, the pressure builds quickly and causes the device itself to break apart. This in turn can cause a fragment of the e-cigarette container, or part of the lithium ion battery itself, to be propelled “like a high-powered rocket.” E-cigarette explosions can be incredibly dangerous. Examples of media reports about injuries attributed to e-cigarette explosions from the year 2016 alone include: A semi-truck driver who suffered facial injuries and crashed his truck after his e-cigarette allegedly exploded while he was driving A woman who suffered severe burns and lost two teeth after her e-cigarette allegedly “exploded and caused her car to go up in flames” A former professional soccer player who is now “unrecognizable” after an e-cigarette allegedly “exploded in his mouth” and “the product’s battery blew through his cheek” A woman who suffered third-degree burns to her legs when an e-cigarette allegedly exploded in her pocket — she further claims that “the battery exploded with such force that it became lodged in her car’s dashboard” A teenager who has been left completely blind in his left eye Unfortunately, there is currently no source to turn to for accurate, up-to-date statistics as to e-cigarette explosions. The US Fire Administration previously reported that 25 fires had been caused by e-cigarette explosions between 2009 and 2014. However, as one media outlet has pointed out, “that list is based only on incidents reported by the media,” and “[g]iven that vaping’s seen a surge in popularity since then — last year, the CDC (Centers For Disease Control) reported a three-fold increase among middle-and-high school students alone — the number almost certainly is rising.” Indeed, “[a] quick Internet search shows at least a dozen explosions in 2015 alone.” From the Unregulated “Wild, Wild West” to FDA Oversight For more than a decade, the manufacture, distribution, and sale of e-cigarettes were completely unregulated, prompting officials from the Food and Drug Administration (“FDA”) to describe the e-cigarette marketplace as being “the wild, wild West.” Until very recently, it remained unclear as to which federal agency would even attempt oversight over the safety of the design and manufacture of the devices and their component parts, including the lithium ion batteries. While the Consumer Product Safety Commission (“CPSC”) took action to address the problem of exploding lithium ion batteries in hoverboards, the agency disclaimed responsibility for the similar danger posed by e-cigarettes, instead deferring to the FDA. The FDA, in turn, initially proposed to regulate the “health effects” associated with e-cigarettes in 2014. Notably, however, the 2014 FDA proposal lacked any language addressing the electronic components of the devices. The question as to who would regulate the batteries in e-cigarettes was finally addressed on May 3, 2016, when the FDA announced the agency’s final rule construing the definition of “tobacco product” contained in the Tobacco Act of 2009. Under the final rule, the FDA’s regulatory authority includes not only e-cigarettes but also extends to the “components or parts” of the devices, including the batteries. The FDA specifically rejected the argument made by some commentators that the batteries were beyond the agency’s purview, explaining that it was “concerned about reports of exploding batteries.” The agency further clarified that lithium-ion batteries are properly subject to the agency’s authority where they are “co-packaged with other components or parts” of an e-cigarette, or “otherwise intended or reasonably expected to be used with or for the consumption” of e-cigarettes. Although the FDA has now clearly stated that it has the right to regulate e-cigarette batteries, it remains unclear what the agency intends to do with its newly announced authority. The agency has stated that it is working on guidance, “which when final … will include FDA’s current thinking regarding compliance with existing voluntary standards for [e-cigarette] batteries.” However, others in Washington are calling for more urgent action. Senator Charles Schumer (D)NY succinctly summarized this point of view, bluntly stating that the FDA should “do its job and investigate why these cigarettes are exploding and force the e-cigarette manufacturer to prevent this from happening.” He further stated that the agency “should determine whether these vaping devices are flawed and require a recall if necessary, to make sure these explosions stop.” To add to the uncertainty, businesses making a big profit from e-cigarettes promise to fight the FDA’s new regulatory authority in the judicial system. They have been successful in blocking the FDA’s attempt to regulate e-cigarettes in the past. In 2010, the U.S. Court of Appeals for the District of Columbia ruled that the FDA lacked authority to block the import of cigarettes under the Federal Food, Drug, and Cosmetic Act (“FDCA”). The Court reasoned that the FDA could only regulate “therapeutically marketed” tobacco products under its authority from the FDCA. However, the Court went on to observe that “the FDA has authority to regulate customarily marketed tobacco products — including e-cigarettes — under the Tobacco Act.” In light of this observation, the FDA is in a much stronger position to defend its new e-cigarette rule, which is based upon the Tobacco Act, than it was when it previously attempted to regulate e-cigarettes under the FDCA. Factual And Legal Hurdles At their surface, exploding e-cigarette cases resemble prototypical products liability actions: they revolve around poorly designed and manufactured products and include a significant warning component. As such, the causes of action to be advanced in such a case will include those pressed in other products liability cases: strict liability, negligence, failure to warn (pre and post sale), and breach of expressed and implied warranties. However, the unique nature of the e-cigarette marketplace creates a plethora of legal and factual hurdles which trial lawyers must be prepared to resolve. At the outset, many of the usual parties to a products liability claim may prove difficult to track down, serve, and obtain a collectible judgment against in an e-cigarette case. The devices are typically sold by a store front or online retailer, often with some horrible name that incorporates a bastardization of the word “vapor,” that may very well have no assets other than the vape pens they are offering for sale. In such a scenario, the chances are slim that the sketchy storefront would have an insurance policy that would cover a products liability claim. At the exact opposite end of the “chain of distribution” often sits a Chinese manufacturer. According to the Government Accountability Office, some industry experts estimate that up to 90% of e-cigarettes sold in the United States were imported from China. That is bad for products liability plaintiffs. Past experience has shown that Chinese defendants can be difficult, and at times impossible, to serve. Also, assuming service can be effectuated, any judgment obtained may be moot as the Chinese government may not be willing to recognize an American judgment. There is a silver lining, however. Even assuming the retailer is a defunct storefront and the manufacturer is a Chinese entity that will thumb its nose at an American court, there remain other parties who may be found liable if the facts warrant. Such other possible defendants include the importer and component part suppliers. Several major brand-name manufacturers have their hands in the lithium-ion battery business and may prove viable defendants if the facts warrant. The necessary steps for pursuing an importer, including the proper arguments to make as to whether the importer should be treated the same as the manufacturer for purposes of legal liability, and the component part suppliers, are difficult but often not impossible tasks for skilled products liability attorneys to accomplish. And if pursued correctly and vigorously, these avenues of relief can open up pockets that are often more than sufficient to compensate clients for catastrophic injuries of the severest magnitudes. Once the culpable parties are tracked down and brought into the lawsuit, the next hurdle will likely involve some type of “victim blaming” defense in the form of product misuse or alteration. One common refrain from the e-cigarette lobby has been that the products explode because of “user error.” The common theme of the “user error” defense is that the consumer has “overcharged” or improperly inserted the battery into the device. This defense seems feeble when one remembers the many other common consumer products that are subject to “overcharging” and similar misuse, but do not explode and maim consumers. For instance, it seems fair to say that the average consumer has left their cell phone plugged in and charging overnight without waking up to a live grenade in their bedroom the next morning. Additionally, this defense can be turned on its head as even industry insiders have recognized that the businesses profiting from the sale of e-cigarettes have not done enough to warn consumers about the dangers associated with the products’ lithium ion batteries. E-cigarette defenders also like to point to modifications of the devices as the reason for explosions. It is no secret that the so-called practice of “vape modding,” which involves adding new hardware, batteries, or other components to an e-cigarette, has become incredibly popular within the e-cigarette industry over the past several years. In the legal setting, well-paid defense lawyers will try to use this to bar the courthouse doors, arguing that any such modification constitutes a “substantial alteration” of the product. If the facts of a case implicate a potential modification defense, it is important to anticipate such an argument and be prepared to rebut it, including by the development of expert proof that any modification did not cause or contribute to the incident. Similarly, it may be possible to rebut a modification defense by arguing that the particular modification at issue was reasonably foreseeable. This may be a particularly strong means of rebuttal given the immense popularity of modifications within the e-cigarette industry. E-cigarettes have become the cornerstone of a multi-billion dollar industry that caters to millions of American “vapers.” Years of regulatory indifference led to a marketplace saturated with dangerous and defective devices that are literally blowing up in people’s faces, resulting in catastrophic injuries. Although the FDA has now signaled its intention to wade into this industry and begin regulating the devices, it remains to be seen what that regulatory oversight will ultimately look like. If past experience with similar product failures is any indicator, the only way industry change will be achieved is if trial lawyers from across the country take on meritorious cases and hold the responsible parties accountable before civil juries.