PITTSBURGH – Counsel for a Western Pennsylvania man who says he suffered severe burns after a lithium ion battery for his vaping device exploded in his pants pocket argue that the related lawsuit should remain in Allegheny County.
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 severe leg burns requiring grafting procedures, severe hand burns requiring grafting procedures and other injuries.
Lithicore filed preliminary objections related to personal jurisdiction and the court’s alleged lack thereof over it in this matter on Jan. 8, citing U.S. Supreme Court precedent from Daimler AG v. Bauman and Bristol-Myers Squibb v. Superior Court of California.
“Defendant Lithicore is a Texas limited liability company with its principal place of business in Texas. It therefore cannot fairly be said to be ‘at home’ in Pennsylvania, and therefore it is not subject to general jurisdiction in this Commonwealth,” the objections stated.
The company argued that Armstrong’s counsel cannot demonstrate that its contacts with Pennsylvania relative to the subject battery products were “sufficiently ‘continuous and systematic’ to purposely avail itself to this forum.”
“Since its inception in 2017, defendant Lithicore sold products to just one customer in Pennsylvania – Vape Lab. Prior to April 2019, defendant Lithicore sent only a dozen orders of batteries to Vape Lab via UPS shipments,” the objections stated.
“This falls short of substantial, systematic and continuous contact with Pennsylvania to satisfy specific jurisdiction. Such limited contacts cannot survive constitutional review under the Due Process Clause of the United States Constitution. Thus, this Court lacks personal jurisdiction over Lithicore.”
UPDATE
According to an answer to the preliminary objections from Armstrong’s counsel on Feb. 18, the case should stay in Allegheny County.
“Plaintiff’s residence is not a relevant consideration in the venue or forum non conveniens analysis because plaintiff’s choice of forum is given substantial deference. Defendants have failed to meet their burden of establishing with facts of record that litigating this matter in Allegheny County would be oppressive and vexations. Importantly, the Armstrong County courthouse is just over 40 miles from the Allegheny County courthouse,” the answer stated.
“Plaintiff also conducted forum non conveniens discovery in this matter, and deposed defendants’ affiants – Walter Wright and Holly Freshwater. The affiants are the sole employees of the Vape Laboratory which sold the exploded battery. Contrary to the assertions in their affidavits, both Mr. Wright and Ms. Freshwater admitted that it would not be a hardship for them to appear in Allegheny County.”
Per the plaintiff’s counsel, the defendants “have not put forth any evidence that trial in Allegheny County is oppressive and vexatious to them.”
“Indeed, defendants’ first affiant [Wright] admitted that over the past few years, he has travelled to Pittsburgh over 150 times, and defendants’ second affiant [Freshwater] admitted that she can easily arrange to travel to testify in Pittsburgh,” the plaintiff’s counsel 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, Joseph V. Lesinski of Marshall Dennehey Warner Coleman & Goggin and Louis A. DePaul and Daniel V. Sinclair of Eckert Seamans, all 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