E-Cigarette And Product Liability

In March 2013, Jennifer Ries and her and husband, Xavier, became victims of a defective product. While on their way to the airport, Jennifer decided to charge a VapCigs e-cigarette. A strange aroma filled the car and Jennifer noticed that the e-cigarette battery was dripping. When she attempted to remove the battery from the charger the battery started to shoot flames directly at her. The battery exploded, sending metal fragments flying. As a result, Jennifer suffered second-degree burns.

What are E-Cigarettes?

Electronic cigarettes, commonly referred to as “e-cigarettes”, have become tremendously popular over the last few years as they are marketed as a more healthy alternative to traditional cigarettes. Currently, e-cigarettes are used by over 2 million people in the U.S. E-cigarettes are designed with a battery-powered device that produces a vapor that resembles smoke and contains a mixture of nicotine and other flavorings, thus providing an experience that mimics smoking traditional cigarettes.

over-2-million-people

While e-cigarette manufacturers say that their products are safe, studies do not clearly show that. In fact, the Food and Drug Administration (FDA) issued a warning that the health effects of e-cigarettes have not been fully studied. Although to date, the e-cigarette industry has not felt the type of litigation that the tobacco industry has faced, it looks as if the e-cigarette industry is facing a different type of litigation based on what appears to be a problem related to the design of e-cigarettes.

Dangers posed by e-cigarettes

caution-iconE-cigarettes use lithium-ion batteries, the same type of batteries that are used in laptops and cellphones. While there have been incidents of laptop and cellphone batteries overheating and exploding, combustion is more likely to occur with e-cigarettes. If care is not taken when charging e-cigarette batteries, overheating is possible. For example, if an e-cigarette is charged using an incompatible charger or is charged using the USB port in a computer, overheating may result and an explosion is possible.

E-cigarette manufacturer liability

While initially denying that e-cigarettes are unsafe, e-cigarette industry leaders such as Thomas Kiklas of the Tobacco Vapor Electronic Cigarette Association now acknowledges that there are occasional failures. While the number of reported e-cigarette explosions has been minimal compared to the amount of e-cigarette usage, those who are injured by such explosions are seeking to hold the manufacturers responsible. Under product liability theory, the manufacturer of a product may be liable for injuries suffered by product users if the product has a flawed design or if the product was manufactured incorrectly.

“The manufacturer of a product may be liable for injuries suffered by product users…”

Furthermore, manufacturers must warn the public of known risks associated with the use of the product and provide adequate instructions regarding the product’s proper use. This means that if a product is dangerous in some way that is not likely immediately obvious to a consumer, the manufacturer has a legal obligation to warn about this danger. In the case of e-cigarettes, arguably manufacturers should warn consumers of the potential for battery explosions if charged using other than specified charging devices.

Are E-Cigarette “Smokers” Safe?

herrman-e-cig-iconJennifer Ries has filed a lawsuit against both VapCigs, the manufacturer of the e-cigarette that caused her injuries, as well as Benham Zolgdahr, the retailer from which she purchased the e-cigarette. Ries and her attorney are not just concerned about holding that manufacturer and distributor accountable for her painful injuries, they are also concerned about the lack of adequate regulation of the e-cigarette industry.

To date, there has been a relatively small number of reported cases of e-cigarette battery explosions. Such explosions can be minimized or eliminated by proper warnings or instructions. If the exploding battery problem is a problem that is relatively easy to address, should the FDA now focus on determining the health risks that e-cigarettes pose based on the chemicals used in e-cigarettes particularly since many consumers consider them as a safe alternative to traditional cigarettes?

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