Back in law school, I marveled at the most prevalent type of case discussed in Product Liability class… exploding pop bottles.*
To hear Allen Rostron (my P.L. professor, now Associate Dean Rostron) tell it, the whole of tort law developed on two concepts: (1) unfortuitously agitated carbonation and (2) the brilliance of the Honorable Stanley Mosk.
Sure, I exaggerate– fireworks and railroads helped— but I still can’t get over how much the field of law developed along with the modern bottling industry. Today, injuries from ruptured beverage containers are a rarity, in large measure due to the plaintiff’s bar (the same goes for just about everything else in the modern world that used to hurt people and doesn’t anymore). At the base of product liability law is a very simple thought process: “Hey, if I buy this thing, will it cause me severe bodily injury? No? Great! Take my money.”
In an excellent post over at the Product Liability Blog, my Wisconsin colleague Rich Schuster discusses E-Cigarette Explosion Cases and Legal Practicalities. Setting aside the debate about the respiratory risk of “vaping”, Rich offers that “the need for more power in smaller packaged batteries, coupled with questionable supply chain practices marked by non-existent or inadequate quality assurance testing, can lead to the unintended consequence of battery cell explosions.”
Yes. Explosions. The things blow up.
Let’s consider the vape user’s subconscious analysis: Hey, if I buy this little device that will efficiently administer a legal drug of my choice, will it blast a hole in my leg? No? Great! Take my money.
Of course, we don’t actually ask the question. But it’s still part of the analysis, and it’s at the heart of the legal calculus in defective product cases– our expectation of a safe product is the foundation of the claim. Users of e-cigarettes often have a tough time gaining sympathy from their fellow citizens when the product inadvertently blows up, and that’s awfully unfair. But change one word in that equation and the kindness flows– instead of e-cigarettes, how about phones?
Phone users meet with great sympathy from their fellow citizens when the product inadvertently blows up.
It’s essentially the same technology involved. A dense mass of various metals and potentially volatile liquid chemicals jammed and sealed into as small a compartment as possible, for the purpose of generating a sufficient electrical current to power a consumer device. Phones, vapes… really, they’re the same thing. And why?
Because when you buy them, you naturally expect them to NOT BLOW UP.
Phone batteries don’t have quite the same supply chain issues as e-cig cells, and they need a smaller amount of current over a longer period of time, but a battery is a battery in the mind of the reasonable person. You expect them to generate the amperage and voltage you need over the expected life of the device, and then… it just fades away. It does not turn into a violently expanding ball of flame.
So, what in the heck does this have to do with the Hague Service Convention?
Well, as Rich in Wisconsin puts it, “Manufacturers of e-cigs batteries are frequently Chinese corporations with few or no ties to any particular state. It can be difficult to achieve proper service of process over these companies… (and it) can also be difficult to convince clients to incur the costs to even attempt service… .”
He’s absolutely right. The costs are high, although there are ways to mitigate them, at least a bit. But if you do sue the vape shop owner and the manufacturer’s U.S. distributor and you don’t bring that manufacturer into the case, you can count on the American defendants pointing the finger right back at China. Especially in states with innocent seller laws, you may get nowhere without having the manufacturer haled in.
Likewise, if you sue the store where you bought your fancy Model TK-421 smartphone (it blew up, of course), don’t you think the merchant might demur, opting to pin the blame on the Korean or Chinese or Vietnamese company that made the thing? Ibidum.
Whether it’s an exploding e-cigarette battery or an exploding phone battery, the suit goes nowhere unless you properly serve your offshore defendants. So do it right the first time— don’t simply wait until you’re past zero barrier.
* In the Midwest, we call it pop. Get on board with that if you want to stay here. If you call sweet, fizzy soft drinks “soda”, you’re wrong. Soda is white powder in an orange box, and its job is to keep the fridge from stinking. If you call it “Coke” you’re doubly wrong, and should seriously consider your profession, because… precise language, counselor. “Soda pop”… well, you get a pass, because, at least you’re trying.
** Seriously, you’re telling me that sucking that ionized chemical cocktail into your lungs isn’t horrendously bad for you? Pull the other one.