PITTSBURGH – A vaping products manufacturer is seeking to change venue in an action brought against it by a Western Pennsylvania man, who says he suffered severe burns after a lithium ion battery for his vaping device exploded in his pants pocket.
Glenn Armstrong of Kittanning first filed suit in the Allegheny County Court of Common Pleas on Oct. 20 versus Vape Lab, Vape Laboratory and Walter Wright (doing business as “Vape Lab”) of Kittanning, Lithicore, LLC and Lithicore Tech of Houston, Texas, Demand Vape, LLC of Buffalo, N.Y. and John Does 1-3.
“On April 2, 2019, Glenn Armstrong acquired several 18650-style lithium ion batteries which had been purchased from Vape Lab, including a battery identified on its wrapping as a Lithicore 18650 3000mAh 20 A continuous and 35 A pulse battery,” the suit stated.
“The subject battery was a Samsung 30 Q 3000mAh 15 A battery which Defendants rewrapped and sold as Lithicore 18650 3000mAh 20 A continuous and 35 A pulse battery. 7 29. Vape Lab, Lithicore, Demand Vape, LLC and John Does (1-3) designed, manufactured, marketed, distributed and sold the subject battery.”
On April 2, 2019, Armstrong acquired a vaping device known as a mod (Geek Vape Aegis 200W) which had been purchased from Vape Lab. Vape Lab, Demand Vape, LLC and John Does 1-3 designed, manufactured, marketed, distributed and sold the subject mod. On April 2, 2019, Armstrong acquired a lithium ion battery charger (XTAR VC4 4-bay) which had been purchased from Vape Lab.
“Defendants marketed and represented that the subject battery was suitable for and intended to be used with the subject mod and vaping applications, generally. Defendants marketed and represented that the subject battery charger was suitable for and intended to be used with the subject battery and vaping applications, generally,” per the suit.
“18650-style lithium ion batteries are unreasonably dangerous and not safe for use in vaping applications because of their volatility and propensity to burn or explode. On April 2, 2019, as Armstrong was walking, the subject battery exploded in his front-left pants pocket.”
As a result, Armstrong suffered the following injuries:
• Severe leg burns requiring grafting procedures;
• Severe hand burns requiring grafting procedures;
• Mental and emotional pain and suffering;
• Chronic physical pain, suffering and loss of life’s pleasures, past, present and future;
• Loss of performing his usual duties and activities;
• Loss of earnings and wages and loss of earnings capacity, past, present and future;
• Hospital, medical and rehabilitation expenses past, present and future, including medical equipment, supplies and other medical care and treatment;
• Other psychological, psychiatric, neurological injuries, the full extent of which is yet to be determined and some or all of which may be permanent in nature; and
• Scarring, loss of independence, mental anguish, humiliation, embarrassment, fear, loss of well-being, inability to enjoy the normal pleasures of life, and restrictions on his ability to engage in normal activities and pleasures of life.
UPDATE
The Vape Lab defendants filed preliminary objections related to improper venue and an accompanying petition to transfer venue to the Armstrong County Court of Common Pleas, on Dec. 21.
“This matter should be transferred to Armstrong County, Pennsylvania. Armstrong brings this six-count products liability action alleging claims of negligence and strict products liability for failure to warn, design defect and manufacturing defect. The claims arise out of an alleged 18650 lithium ion battery explosion when plaintiff was improperly transporting the battery in his pocket,” the objections stated.
“The complaint does not allege that the explosion and injury occurred in Allegheny County. The Vape Lab defendants are not located in Allegheny County and do not operate in Allegheny County. Armstrong is also not an Allegheny County resident. The Vape Lab defendants are located in Armstrong County, Pennsylvania and conduct business solely in Armstrong County. Plaintiff Armstrong is also an Armstrong County resident. The additional named defendants in this matter also are not located in Allegheny County. None of the transactions relevant to this matter occurred in Allegheny County, nor is it believed that any fact witnesses are residents of Allegheny County.”
The defendants added there is also a 42-mile difference between Kittanning and Pittsburgh, where the respective county courthouses are located – and although “not in and of itself oppressive, it is a not an insignificant distance and the manner of travel can make it difficult for Kittanning residents and other Armstrong County residents to easily travel to Pittsburgh (and would require travel to a county with much higher COVID-19 numbers).”
“As the Supreme Court recognized, “While mere inconvenience remains insufficient, there is no burden to show near-draconian consequences’ It would be oppressive for Armstrong to insist upon an Allegheny County venue for this action when there exists no nexus to Allegheny County,” the objections stated.
For multiple counts of negligence and strict product liability, the plaintiff is seeking in excess of $50,000 in compensatory damages, delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, interest and allowable costs of suit and brings this action to recover same, plus a trial by jury.
The plaintiff is represented by David L. Kwass and David J. Langsam of Saltz Mongeluzzi & Bendesky, in Philadelphia.
The defendants are represented by James A. Salemme of Tucker Arensberg and Joseph V. Lesinski of Marshall Dennehey Warner Coleman & Goggin, both in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-010948
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com