CLM’s Product Liability Committee recently held a webinar entitled, “Battery Litigation: It’s Hot!” which discussed the rapid rise in the use of lithium-ion batteries in recent years, and the product liability claims and litigation that are emerging from this increased use. Below are a few takeaways from the presentation.
Carly Celmer, Equity Partner, Clyde & Co.
Sanjay Shivpuri, Executive Claims Specialist & Senior Counsel, Markel
“From 2004—even through 2011 and 2012—there was certainly a market of electronics with lithium-ion batteries. But what you can see is that, starting in 2014 and moving toward today, 2021, the market is just absolutely booming. It’s going to quadruple by 2025.”
“Laptop manufacturers and power tool manufacturers, for example, have been using lithium-ion batteries for decades now. And their warnings for those batteries are pretty robust.… But other, often smaller, product manufacturers, which are just now starting to use these batteries, may not have the experience and expertise to write warnings at all.”
“Examples of claims that we’re seeing now [include] someone using a lithium-ion battery to jump-start another lithium-ion battery while it’s in use in a device. The lithium-ion battery that is being charged while in use explodes, causing a bodily injury.”
“When you open up the user manual and there are two pages with exclamation points about the lithium-ion battery, that is a good sign. If you open up the user manual and there is just a foldout of some diagrams about how to plug something in, that is not really going to help very much when a claim comes down the road.”
“A properly documented scene is not just taking a bunch of pictures of a burned laptop. It’s taking photographs of the entire scene and any potential alternate sources of fire that have not been ruled out, or that cannot be ruled out at that time.”
“Let’s say the inspection is in three days or five days…. If there is not a lot of time for me to get defense counsel on board or do much of anything, usually what I’m going to do is go to a national forensics firm…find someone who’s a local officer and can get a cause-and-origin expert onsite at the inspection on short notice…and have them attend the site inspection.”
“You’re going to want to talk about every single thing you can find in the photograph. For example, in a cellphone case, what charging cords were used with it? Were they approved charging cords? Was there a phone charger that had been used with that phone before? Were there replacement battery packs?”
“It sounds like overkill, but you really want to get into the details in these cases about what was powering these products—not even necessarily at the time of the incident, but within hours of the incident or on a regular basis. And anything that is not preserved or not available for your expert to inspect, you want to make a list.”