Electronic cigarettes and other electronic nicotine delivery system (ENDS) products (“e-cigs”) have rapidly increased in popularity in recent years, with no signs of slowing down any time soon. While this growth is welcomed by those in the industry, more e-cig users and products on the market mean a greater potential for injuries. Although the use of e-cigs is widespread, the overwhelming majority of users experience no trouble with their devices. This is especially true of users of e-cigs that contain a built-in battery, as a large portion of e-cig incidents are confined to cases where 18650 lithium-ion battery cells are misused. And even in the rare cases where an e-cig user does encounter a problem with their device, the resulting injuries or property damage are often minor.
Nonetheless, there are rare instances where e-cig users suffer more significant injuries. These cases are often the most covered (and sensationalized) by the media. This alert provides an overview of some common e-cig injuries that have been reported in recent years in various lawsuits, studies, and media reports. Gaining a better understanding of the nature of these injuries will allow those in the industry to make more informed decisions and facilitate improvements on a number of fronts, from design to production to defending against injury claims.
Thermal and Chemical Burns
Burn injuries are among the most common injuries suffered by e-cig users. By and large, these injuries consist of minor burns to the hands or thighs, often caused by an e-cig battery coming into contact with other batteries, keys, coins, or other metal objects in the user’s pockets and shorting as a result.1 The U.S. Fire Administration found that of the 195 reported e-cig combustion incidents between 2009 and 2016, nearly one-third caused no injury at all and less than one-fifth resulted in “severe” injuries such as third-degree burns.2 A 2018 review of 164 e-cig combustion incident cases found that the burns most commonly affected the thighs and hands, with the user’s pockets being the location of the incident in nearly two-thirds of cases.3
For example, one case involved a 26-year-old California man who was preparing to leave work when the spare battery for his e-cig combusted in his pants pocket, igniting his pants and causing burns to his legs and genitals.4 In another case, a 33-year-old Kansas man was carrying a spare e-cig battery in his pocket at work when the battery combusted, causing second- and third-degree chemical and thermal burns on his left leg, along with second-degree burns to his fingertips and hands.5 Similarly, a 19-year-old Maryland woman suffered first- and second-degree burns to her right arm, abdomen, and left thigh after her e-cig combusted as she was getting it out of her purse and subsequently set her clothes on fire.6
Other Combustion Injuries
Other injuries resulting from the combustion of e-cigs have garnered more attention as the number of e-cig users has increased. Although rare, such injuries—which can occur due to projectile debris from an e-cig explosion—can be severe and have resulted in at least two recent deaths.
In May 2018, a 38-year-old Florida man was using his e-cig when it combusted, causing two pieces of the device to lodge into his cranium in addition to starting a fire in his home.7 The man was determined to have died from a “projectile wound to the head”—the first reported U.S. death from a purported malfunctioning e-cig.8 More recently, in January 2019, a 24-year-old Texas man died of a massive stroke after the e-cig he was using combusted in the parking lot of an e-cig retailer, causing debris from the device to enter his mouth and throat area and tear his carotid artery.9
Other injuries that have occurred from time to time as a result of combustions of e-cigs include concussions, broken cheekbones, fractured palates and fingers, lost or damaged teeth, and lacerations.10
Acute and Chronic Illnesses
Beyond burns and other injuries resulting from fires and combustions, certain acute and chronic illnesses have also been linked to (or are hypothesized to be linked to) e-cig use. As a result of the relatively recent introduction of e-cigs into the market and the myriad brands, devices, and e-liquid flavors available, the long-term effects of e-cig use have not been fully studied. Nonetheless, in the years since e-cigs were introduced, scientists and medical professionals have made efforts to raise awareness of illnesses potentially linked to the use of e-cigs.
One such condition is hypersensitivity pneumonitis (also known as “wet lung”), an immune disorder claimed to be tied to e-cig use that causes lung inflammation and disrupts lung function as a result of the inhalation of certain allergens.11 In a case last year, an 18-year-old Pennsylvania woman began experiencing a cough, difficulty breathing, stabbing pains in her chest, and ultimately respiratory failure after only 3 weeks of e-cig use.12 Her pediatrician diagnosed her with hypersensitivity pneumonitis, opining that certain chemicals in her e-cig led to lung damage and inflammation, which in turn triggered an immune response in her body.13
Another illness hypothesized to be tied to e-cig use is bronchiolitis obliterans, or “popcorn lung,” a condition that damages the bronchioles and causes lung inflammation, thus leading to breathing difficulties.14 This condition has been linked to the inhalation of diacetyl, a chemical used to flavor e-cigs and refill liquids.15 Notably, however, recent trends suggest that e-cig manufacturers (including major manufacturers such as JUUL) are opting to use other chemicals in place of diacetyl to flavor their products.16
A range of other conditions and adverse health events similarly have been speculated to be linked to e-cig use, including: pneumonia; heart disease; seizures; hypotension; nicotine poisoning; asthma; and stroke.17 That said, until further research can be done, the true effects of e-cigs and their potential link to the conditions above are uncertain.
Emotional Injuries
Beyond physical injuries, some e-cig users have also sought redress for alleged emotional injuries as a result of combustion incidents, particularly where the damages associated with their physical injuries are low. For example, four e-cig users in Texas who suffered burn injuries brought individual suits against the respective manufacturers of their e-cig and/or battery, seeking damages not only for physical impairment and medical care but also for mental anguish (including post-traumatic stress disorder, or PTSD) as a result of their injuries.18
Similarly, a California man filed suit against the retailer and distributor of his e-cig after it combusted and caused multiple injuries to his head and neck.19 In addition to compensation for his physical injuries, the lawsuit also seeks damages for emotional distress as a result of the incident.20
In cases with severe combustion injuries, related emotional injury claims may become more and more common in future e-cig litigation.
Takeaway
Given the accelerating trend of e-cig usage, it is important for those in the industry to understand what liabilities they may face in connection with the use of e-cigs. The majority of users encounter no problems with their devices (especially when using e-cigs with built-in batteries), and the few that do generally experience injuries that are minor—and not infrequently the result of user error. Nevertheless, the potential for severe injuries does exist. Attention to these potential outcomes will enable industry insiders to gauge risk and improve their products in an effort to protect both themselves and e-cig users around the world.
Importantly, understanding these issues will also allow those in the industry to more effectively defend themselves in litigation. In examining liability for a particular injury, several points should be considered. For example, where a user has suffered a burn injury, was it the result of product misuse and/or failure to abide by the warnings? Was the product at issue genuine or counterfeit? Similarly, where a user claims to suffer an acute/chronic illness or an emotional injury, was it caused by e-cig use or was it the result of a pre-existing condition? Better understanding e-cig injuries generally allows potential defendants to more effectively analyze the cause and nature of (and legal exposure from) any particular injury, and accordingly determine the optimal strategy for defending against the resulting claims.
