Heralded as being a safer form of smoking, vapor e-cigarettes have become popular devices for smokers in recent years. According to the National Institute on Drug Abuse, e-cigarettes, “are battery-operated devices designed to deliver nicotine with flavorings and other chemicals to users in vapor instead of smoke.” Because these devices deliver nicotine through a vaporizer instead of smoke, the act of using an e-cigarette is commonly referred to as “vaping.” The use of e-cigarettes over the last few years has been explosive, both literally and figuratively, leaving e-cigarette users facing potentially dangerous results.
Over the past few years, news reports have mentioned cases where e-cigarette users have experienced an unexpected dangerous side effect of e-cigarettes. In one case, a 21-year-old Naples, FL man described using an e-cigarette when the e-cigarette exploded. The explosion left him with third degree burns to his face, esophagus, and lungs. Additionally, the e-cigarette explosion left battery acid in the young man’s lungs. In another incident, a 29-year-old Colorado Springs, CO resident suffered from shattered teeth, a broken neck, facial fractures, and burns to his mouth after his e-cigarette exploded while vaping.
A recent report from the U.S. Fire Administration identified 25 separate instances of exploding e-cigarettes between 2009 and 2014. According to the report, the culprit behind these explosions appears to be the lithium-ion batteries contained in e-cigarettes. The report indicates that unlike other electrical devices, the lithium-ion batteries found in e-cigarettes are placed in a cylindrical device. The report notes that the cylindrical structure of an e-cigarette makes the ends of the device a weak container for the battery. As a result, if a battery seal ruptures, the pressure inside the cylindrical shape builds quickly and may cause the device to burst.
There is little regulation of e-cigarettes. Currently, the White House is reviewing a proposed rule from the FDA that would allow the FDA to regulate e-cigarettes as tobacco products. However, until the rule is approved, the FDA has no authority to regulate the use or sale of e-cigarettes as tobacco products. Illinois also has minimal regulations regarding e-cigarettes. To date, Illinois has no statewide regulation banning vaping. However, in 2014, the Chicago City Council passed a regulation banning the use of e-cigarettes from indoor public places including workplaces, bars and restaurants. The lack of regulation regarding e-cigarettes becomes particularly concerning in light of a recent article from The Journal of the American Medical Association that projects e-cigarettes to be a $10 billion industry by 2017.
Each instance of an exploding e-cigarette is an example of a manufacturer’s failure to take adequate steps to protect consumers from a hidden danger. Until the danger is removed from the market place, we can expect (and perhaps appreciate) what may become a burgeoning new area of product liability litigation, lawsuits to compensate those whose lives have been changed by exploding e-cigarettes and punish the wrongdoers. Manufacturer liability for compensatory and punitive damages may accomplish what legislators and regulators have so far failed to do, protect consumers and bystanders from the needless and senseless risk of exploding e-cigarettes.
David Rapoport is the founding and managing partner of Rapoport Law Offices. In his over 31 years as a full time trial attorney, he has won numerous multi-million dollar jury verdicts and settlements in personal injury and wrongful death cases. Mr. Rapoport is a member of the invitation only American Board of Trial Advocates (ABOTA), an association of premier trial attorneys who are dedicated to preserving the right to trial by jury. ABOTA's general mission is "to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefited by more efficient administration of justice consistent with time-tested and traditional principles of litigation." For over 20 years Martindale-Hubbell, through its Peer Review RatingsTM program, has consistently ranked David Rapoport as AV® PreeminentTM, its highest professional rating. This is a testament to Mr. Rapoport's abilities as an attorney and commitment to maintaining the highest ethical standards. Mr. Rapoport has also been selected by Thompson Reuters, another prominent legal publisher, as an Illinois “Super Lawyer” every year since the inception of the Super Lawyer program. Super Lawyer designation is limited to the top 5 percent of lawyers in a state in any given year. Since 1990, David Rapoport has been board certified* in Civil Trial Advocacy by the National Board of Trial Advocacy ("NBTA"), the oldest and largest not-for-profit American Bar Association accredited trial attorney certification program. Attorneys with NBTA certification have proven ability in their field through specialized written examinations and meeting rigorous criteria for trial experience and ethical ratings. Mr. Rapoport has proven his currency and substantial trial experience through NBTA recertification in 1995, 2000, 2005 and 2010. David Rapoport has served as a leader of the movement to encourage board certification for trial lawyers for more than twenty years. Currently he is the President of the National Board of Trial Advocacy and its parent organization the National Board of Legal Specialty Certification. He recently explained: "In this era of Wild West style minimally regulated lawyer advertising, it has never been more important for the public to have easy and reliable means of identifying members of the small fraction of practicing attorneys who truly have substantial experience trying cases. Board certification programs help consumers of legal services make more informed choices. Too many lawyers are out there claiming to have substantial trial experience when in truth they have never tried a case. Board certified trial lawyers have proven their substantial trial experience in ways the public can trust." Mr. Rapoport is a member of the President's Club and Leader's Forum of the American Association for Justice and the state trial lawyer associations in Illinois, Wisconsin and Kentucky. He is also a member of the Economic Club of Chicago. * Board certification is not required to practice law in Illinois and the Illinois Supreme Court does not recognize specialties in the practice of law.