Liability for Defective Electronic Cigarettes
The Emerging Area of E-Cig Product Defect Personal Injury Cases
While food, alcoholic beverages, and pharmaceuticals are all closely monitored for their contents and safety by federal agencies, consumer products are not screened for safety before being made available to the general public. It is up to consumers who are injured by any products found to be defective to seek compensation from the manufacturers and dealers the consumer relied on for a product that was safe to use.
One of the newest products, really an industry, to hit mainstream consumption is that of the electronic cigarette, also known as e-cigs or vaporizers. By some accounts, the use of e-cigs in the United States has surpassed conventional smoking.
Most of the media attention as to the safety of e-cigs has been focused on the nicotine content and chemical content of the flavored liquids that are vaporized and inhaled from the e-cig. However, not as much attention has been paid to the damage that can be done by e-cigs that are defective. The LA Times has reported on a few injuries e-cig defect injuries, which you can find here, but please be warned some images are graphic.
How Can an E-Cig be Defective?
There are many parts to the electronic cigarette: the atomizer coil, the control circuit, buttons, connectors, wires and leads, the lithium ion battery, the charger or the e-juice/e-liquid. When I write generally on e-cig defects, please keep in mind the defect could be in one or more of these parts.
To get a good idea of how an e-cig can be defective for product liability purposes, lets first look at the standard life cycle of a product. First, a product must be designed. Once designed, it must be manufactured. Once manufactured, it must be packaged and made ready for sale to the consumer by the Dealer. It is at any point in this process that a product liability claim can arise. Let’s take a closer look.
A product is defective by design when it is flawed from its very conception. Perhaps a higher flow control board should have been used, or a different style battery that can handle higher resistance before shorting out. Even if the e-cig is built to specifications out of the highest quality materials, if it is defective in design it will never be safe.
Even when the product is properly designed, it must still be properly built. Using cheap parts made of plastic and having parts manufactured with little or no quality control can easily lead to defects in manufacturing which could be unsafe to the consumer. E-cigs rely on a large supply of electrical power to operate. Defects in the battery, internal wires, the coil or the charger can and have caused power supply failure.
Packaging defect refers to warnings and instructions that are mandatory for the safe use of that specific product. Failure to provide warnings or instructions that, had they been provided, would have avoided injury, is considered a product defect. Perhaps the manual doesn’t tell you that the control circuit is “non-pass-through” for charging purposes. If you attempt to use the e-cig while charging, you may have a power supply failure. Meanwhile, a simple instruction not to use the e-cig while charging it would have saved you the injury.
Liability for Dealers
Dealers are not free from liability for defective products they sell to consumers. Most liability for dealers stems from something called “implied warranties”. Implied warranties are those that are underlying to any transaction for the sale of goods, based on legal principles that are hundreds of year old. When a consumer goes to a dealer of electronic cigarettes, they are relying on that dealer to provide them with a product that is suitable for a particular purpose, in this case vaporizing nicotine juice. Is it not reasonable to also rely on them to provide a SAFE product?
Some dealers also assemble or build custom components, and they would be liable for injuries that result from mistakes or defects made during assembly.
Contributor Negligence as an Affirmative Defense
One defense that may be available to manufacturers and dealers of defective e-cigs is that of contributory negligence. If the consumer is responsible for creating or adding to the defect or increasing the injury caused by the defect, they may be partially or completely barred from seeking compensation for their injuries. Tampering with or modifying e-cigs would probably be considered contributory negligence.
An Emerging Area of Law
There is not much case law specific to defective e-cigs. However, the risk of injury is apparent and injuries have already begun to occur. The more popular e-cigs become, the more manufacturers there will be racing to the bottom for cost and cutting corners along the way. For now, all we can do is examine the risk from the perspective of the general doctrines of product liability law. As we have already seen, the Connecticut legislature has begun to write laws specific to the e-cig industry. We plan on reviewing such laws and remaining on the cutting edge of e-cig litigation.