Certain manufacturers of lithium ion batteries have taken the position that using their batteries in e-cigarettes and vape devices (e-cigs) constitutes “misuse” because their batteries were not designed or manufactured for that purpose. This legal update addresses the impact of this argument on manufacturers, distributors, and retailers in connection with defending against e-cig product liability lawsuits.
E-Cig Product Liability Claims
E-cig product liability claims frequently arise from an e-cig battery combusting – either when it is being used, or when it is in an individual’s pocket/purse/backpack, often outside of the e-cig itself. While certain batteries are designed and manufactured for use in e-cigs, other batteries are designed for different purposes – like power tools – where the individual battery cells are incorporated in larger battery packs. The manufacturers of these types of batteries frequently argue that their batteries should not be used in e-cigs (or sold for use in e-cigs) because the batteries were not designed for that purpose. Those manufacturers often argue that removing the individual battery cells from the larger battery pack makes them more dangerous because larger battery packs usually have additional safety mechanisms.
What is Misuse?
Misuse is often defined as the use of a product for a purpose that is neither intended nor reasonably foreseeable by the manufacturer. Misuse can operate as a defense to product liability claims.
The key issue in determining whether a product has been misused is foreseeability. Questions of foreseeability generally are for a jury to decide. In determining whether the manufacturer, distributor, or retailer should have reasonably anticipated how the product was used, a jury may consider: (i) the reasonable use(s) of the product, (ii) the ordinary user’s awareness that the use of the product in a certain way is dangerous, (iii) the likelihood of the use of the product by persons of limited knowledge, and (iv) the normal environment for the use of the product and the foreseeable risk in that environment.
Impact of Warnings Against Using Batteries in E-Cigs
Certain battery manufacturers have begun preemptively warning distributors and retailers that using the manufacturer's batteries in e-cigs is a misuse. These manufacturers have warned distributors and retailers that the use of the manufacturer's batteries in e-cigs is potentially dangerous, because when the batteries come into contact with other metal – such as keys or coins in an individual’s pocket – a fire can result, potentially causing severe burns and disfigurement. In issuing these warnings, some manufacturers may later attempt to avoid liability in a product liability lawsuit on the basis of product misuse, arguing that their batteries were not intended to be used in e-cigs, and that using their batteries in an e-cig outside of a larger battery pack is unsafe. Whether these warnings will limit a manufacturer’s liability in a lawsuit may depend on whether the warning was issued before or after the incident forming the basis of the lawsuit.
Impact of Warnings on Prior Incidents
If the incident occurred before the manufacturer issued the warning, the warning is unlikely to assist the manufacturer with securing a dismissal from the lawsuit. In addition, a plaintiff could try to use such warnings to show that the manufacturer knew of the dangers that the batteries posed but did not do enough to prevent sales for unintended uses.
Impact of Warnings on Future Incidents
If the incident occurred after the manufacturer issued the warning, the warning may be more helpful to the manufacturer, but would still be unlikely to assist the manufacturer in connection with securing a pre-trial dismissal. Instead, the manufacturer’s potential liability would likely be considered by a jury, and the manufacturer may ultimately be forced to assert claims against (or attribute fault to) others in the chain of distribution. A manufacturer is even less likely to be dismissed if there is evidence that the manufacturer was aware that its batteries were still being used in e-cigs after the warnings were issued. To increase the chance of securing a pre-trial dismissal, a manufacturer would likely need to have taken additional steps to prevent its batteries from being sold in vape shops and shops of unauthorized third-party sellers.
Additionally, plaintiffs may attempt to use evidence of these warnings to show that manufacturers, distributors, and retailers of e-cig batteries knew or should have known that they were dangerous for single cell use in e-cig devices. Plaintiffs could even make this argument with respect to warnings issued by manufacturers of batteries not involved in the subject litigation, because any warning available to a retailer or distributor could inform that retailer or distributor that the use of these types of batteries in e-cigs could potentially be dangerous.
Retailers and distributors of e-cig batteries should evaluate whether the batteries they sell are designed and manufactured for use in e-cigs. If not, they should consider selling only products intended for such use. This is one of a number of factors that should be considered in connection with implementing a comprehensive risk management plan before any lawsuits arise.
For more information about how this may affect your business and current or future litigation, please contact one of the attorneys in the E-Cigarette/Vape Team.
 § 15:1. Misuse of product, Def Against a Prima Facie Case § 15:1 (Rev ed).
 § 18:158. Misuse, abuse, or abnormal use of product, 6 American Law of Torts § 18:158.