First introduced in 2007, e-cigarettes, or “vaping” products, have enjoyed enormous popularity in the United States and around the world, primarily as a means of reducing or eliminating the use of regular cigarettes.

Vaping has proven popular with adults and teenagers. A report by the CDC indicated that in 2014, 3.7 percent, or more than 9 million adult consumers, used vaping products on a regular basis. Another CDC report stated that in 2014, 3.7 percent, or more than 9 million adult consumers, used vaping products on a regular basis. E-cigarette use among middle and high school students tripled from 2013 to 2014, according to data published by the Centers for Disease Control and Prevention and the U.S. Food and Drug Administration’s Center for Tobacco Products (CTP) in today’s Morbidity and Mortality Weekly Report (MMWR).

Along with the increased use of vaping devices, however, have come reports of serious injuries resulting from lithium-ion e-cigarette batteries exploding in users’ pockets, while being charged, or even while being used with vaping devices. A simple Google internet search for e-cigarette battery explosions will reveal several explosions of e-cigarette batteries in consumers’ pockets that have been caught on video. Serious injuries from such explosions have been reported in medical journals and by United States governmental agencies.

In October, 2016, researchers from the University of Washington Medical Center, Seattle, Washington, reported several cases of severe burn injuries resulting from e-cigarette batteries exploding while being charged, used with vaping products, or simply being carried around in users’ pockets. Their report stated: “Blast injuries have led to tooth loss, traumatic tattooing, and extensive loss of soft tissue, requiring operative débridement and closure of tissue defects. The flame-burn injuries have required extensive wound care and skin grafting, and exposure to the alkali chemicals released from the battery explosion has caused chemical skin burns requiring wound care.”

In late 2014, the U.S. Fire Administration released a report describing 25 e-cigarette injuries between 2009 and 2014. The report noted that e-cigarette batteries were more prone to exploding than lithium ion laptop computer batteries because of their cylindrical shape and construction, which allowed the venting electrolytes to vent out of the top of the batteries, where the typical failure mode was described as looking like “flaming rockets.” Lithium ion laptop batteries, with their more robust plastic cases, are more able to withstand the “flaming rocket” phenomenon, which is why they often result in self-contained fires.

The potential for a battery explosion with calamitous results has forced the Federal Aviation Administration (FAA) to ban e-cigarette and vaping devices from checked baggage, only allowing them in carry-on luggage, where the opportunity for discovery and extinguishment of a fire are greater. FAA regulations state that spare batteries’ terminals must be protected (non-conductive caps, tape, etc.) within the outer packaging.

Airlines have now taken to posting these battery storage regulations on their websites. United Airlines posts the following statement on its website:

Each spare lithium battery in carry-on baggage must be individually protected to prevent short circuits. To do this, you can place each battery in original retail packaging, place each battery in a separate plastic bag or protective pouch, or insulate the batteries by taping over exposed terminals. Spare batteries must not come in contact with metal objects, such as coins, keys or jewelry, and you should take steps to prevent crushing, puncturing, or putting pressure on the battery.

During a typical failure mode when, for example, coins in a pocket cause an electrical short in an exposed battery, the electrolyte within the lithium ion battery become heated to its boiling point, a condition called “thermal runaway.” The increased pressure within the battery increases to the point where the seal at the top of the battery ruptures, causing the super-hot electrolyte to vent through the failed metal. The battery becomes, in essence, a small rocket that can be propelled across a room.

The problem for unsuspecting consumers is that a vast majority of e-cigarette batteries are made in China, with suspect manufacturing regulations. Injured consumers, unaware of the risk of a battery short-circuiting and exploding because of contact with metal, such as keys or coins, continue to place exposed lithium-ion batteries in their pockets.

Consumers injured by exploding e-cigarette batteries will seek to hold domestic retailers liable for failing to adequately warn them of the risks of which the “vape shop” retailers are aware. It is this author’s experience that foreign e-cigarette battery manufacturers’ warnings of the risks attendant to their use are either non-existent or woefully inadequate.

In Michigan, non-manufacturing sellers must be “actively negligent” to be held liable for a defective product. In Curry v Meijer, the appellate court held that MCL 600.2947(6)(a) of Michigan’s Product Liability Act requires a plaintiff in a product liability case to prove that a non-manufacturing defendant failed to exercise reasonable care to prevail on a claim for breach of implied warranty. The court held that breach of implied warranty, essentially a strict liability claim against the non-manufacturing seller, did not survive Michigan’s product liability tort reform. The specific statute in question reads:

In a product liability action, a seller, other than a manufacturer, is not liable for harm allegedly caused by the product unless either of the following is true:

(a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person’s injuries.

(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the failure to conform to the warranty was a proximate cause of the person’s harm.

Therefore, the Curry court held that MCL 600.2947(6)(a) required a plaintiff to prove that a non-manufacturing seller failed to exercise reasonable care, in addition to proximate cause.

Under Michigan’s current product liability law, retailers of vaping products, including batteries, will likely face litigation claiming that the retailers knew, or should have known, of the risk of serious injuries from battery failures and failed to adequately warn of the dangers involved, especially in fact scenarios involving unprotected batteries being place in pockets with metal objects, such as coins or keys.

Given the chemical makeup of lithium-ion batteries, and retailers’ knowledge of the potential for such batteries to short-circuit and explode, some stores and distributors have become more sophisticated in attempting to warn customers of the potential hazard and the severity of injuries. Having assumed such a duty, however, the retailer is obligated to adequately warn.

The Michigan Supreme Court, in Greene v. AP Products, Ltd, considered the scope of a manufacturer’s or seller’s duty to warn of product risks under MCL 600.2948(2). The Court concluded that “the statute imposes a duty to warn that extends only to material risks not obvious to a reasonably prudent product user, and to material risks that are not, or should not be, a matter of common knowledge to persons in the same or a similar position as the person who suffered the injury in question.”

Clearly, given the spate of battery explosions seen by emergency room doctors across the country, the material risk of an e-cigarette battery exploding in one’s pocket is “not obvious to a reasonably prudent” user of such batteries. Accordingly, battery manufacturers and retailers must make better, more effective, efforts to educate and warn the customers from whom they profit, or they will face increasing numbers of lawsuits.

BIOGRAPHY

Wolfgang Mueller has been licensed as an attorney since 1990. He is the owner of Mueller Law Firm in Novi, Michigan. A former automotive engineer with Chrysler Corporation before becoming a lawyer, he holds Bachelor’s and Master’s Degrees in Mechanical Engineering from Michigan State University and the University of Michigan, respectively. Mr. Mueller has a national practice and has litigated cases in many states, focusing primarily on automobile crashworthiness and consumer product litigation. Mr. Mueller also specializes in wrongful conviction and police misconduct cases, as well as construction site accident litigation. He has received numerous multi-million dollar settlements and verdicts for his clients.

Schoenborn, CA & Gindi, RM, Electronic Cigarette Use Among Adults: United States, 2014, National Center on Health Statistics (NCHS) Data Brief, No. 217, October 2015.

Schoenborn, CA & Gindi, RM, Electronic Cigarette Use Among Adults: United States, 2014, National Center on Health Statistics (NCHS) Data Brief, No. 217, October 2015.

Centers for Disease Control and Prevention. Tobacco Use Among Middle and High School Students – United States, 2011 -2015. Morbidity and Mortality Weekly Report 2016; 65(14): 361-367.

E.G. Brown son, M.D., Explosion Injuries from E-Cigarettes, N Eng l J Med 2016; 375:1400-1402, October 6, 2016.

Id.

U.S. Fire Administration. Electronic cigarette fires and explosions. October 2014 (https://www.usfa.fema.gov/downloads/pdf/publications/electronic_cigarettes.pdf) (last visited December 15, 2016).

(FAA) – Batteries Carried by Airline Passengers FAQ. https://www.faa.gov/ (last visited December 19, 2016).

https://www.united.com/web/en-US/content/travel/baggage/dangerous.aspx (last visited December 19, 2016).

LA Times, Woman burned by exploding e-cigarette battery awarded $1.9 million,http://www.latimes.com/local/crime/la-me-ecigarette-burns-verdict-20151001-story.html (last visited December 15, 2016).

See also, Kraft v. Dr. Leonard’s Healthcare Corp., 646 F.Supp.2d 882, 888 (6th Cir. 2009 (“To demonstrate that a defendant failed to exercise reasonable care,” the plaintiff must show “that the defendant knew or should have known of the defect.”).

Zychowski v. A.J. Marshall Co., Inc., 233 Mich.App. 229, 231; 590 N.W.2d 301 (1998) (“A party may be under a legal duty when it voluntarily assumes a function that it is not legally required to perform.”). See also, Zine v. Chrysler Corp., 236 Mich.App. 261, 277; 600 N.W.2d 384 (1999) (“When a person voluntarily assumes a duty not otherwise imposed by law, that person is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task.”).

475 Mich 502, 504; 717 NW2d 855 (2006).