Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 1 of 17
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`Mick Levin, Esq. (SBN 021891)
`micklevin@mlplc.com
`MICK LEVIN, P.L.C.
`3401 N 32nd Street
`Phoenix, AZ 85018
`Ph: 480-865-3051
`Fx: 800-385-1684
`
`William A. Levin (SBN 98592)
`Angela J. Nehmens (SBN 309433)
`LEVIN SIMES ABRAMS LLP
`1700 Montgomery Street, Suite 250
`San Francisco, California 94111
`Telephone: (415) 426-3000
`Facsimile: (415) 426-3001
`wlevin@levinsimes.com
`anehmens@levinsimes.com
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`Attorneys For Plaintiffs
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Justin Kasper, an individual, Alexis
`Duran, an individual, Justin Kasper Jr.,
`a minor, by and through his Natural
`Parents and Next Friends, Alexis Duran
`and Justin Kasper,
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`Plaintiffs,
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`vs.
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`Samsung SDI Co., Ltd; Red Star Vapor,
`LLC and Does 1-50, Inclusive,
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` Defendants.
`
`Case No.:
`COMPLAINT FOR DAMAGES
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`1. STRICT LIABILITY – MANUFACTURING
`DEFECT
`2. STRICT LIABILITY – DESIGN DEFECT
`3. STRICT LIABILITY – FAILURE TO WARN
`4. NEGLIGENCE
`5. NEGLIGENT INFLICTION OF
`EMOTIONAL DISTRESS
`6. BREACH OF IMPLIED WARRANTY OF
`MERCHANTABILITY
`7. VIOLATION OF THE MAGNUSON-MOSS
`ACT
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`DEMAND FOR JURY TRIAL
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`Plaintiffs, Justin Kasper, an individual, Alexis Duran, an individual, Justin Kasper Jr., a
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`minor, by and through his Natural Parents and Next Friends, Alexis Duran, Justin Kasper, and by
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 1
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 2 of 17
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`their undersigned attorneys, brings claims against Defendants Samsung SDI Co. Ltd., a Korean
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`corporation, and Red Star Vapor, LLC and alleges as follows:
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`PARTIES
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`1.
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`Plaintiffs, Justin Kasper, an individual, Alexis Duran, an individual, Justin Kasper
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`Jr., a minor, by and through his Natural Parents and Next Friends, Alexis Duran, Justin Kasper
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`are individuals and are now, and at all times relevant, are residents of and domiciled in Maricopa
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`County.
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`2.
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`Defendant Samsung SDI Co. Ltd., (hereinafter “Samsung Korea”) is a South
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`Korean corporation with its principal place of business at Giheung Headquarters, 150-20,
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`Gongse-ro Giheung-gu, Yongin-si, Gyeonggi-do. Upon information and belief, Samsung SDI
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`Co. Ltd. at all times relevant was, authorized to do business in the State of Arizona and was and
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`is engaged in substantial comings and business activities in Arizona.
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`3.
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`Defendant Samsung Korea was and is engaged in the business of manufacturing,
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`marketing, testing, promoting, selling, and/or distributing lithium-ion batteries, including the
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`battery that is the subject of this lawsuit (the “Subject Battery”).
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`4.
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`Samsung Korea does not maintain any physical presence in the United States. It
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`has a network of wholly owned subsidiaries in and throughout the United States that work
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`together to sell various products nationwide.
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`5.
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`Defendant Red Star Vapor, LLC, (hereinafter “Red Star Vapor”) is a limited
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`liability company organized under the laws of the State of Arizona. Plaintiff purchased the e-
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`cigarette device and subject battery from Red Star Vapor’s place of business located in Mesa,
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`Arizona. It can be served via its’ statutory agent, Harrison Law PLLC, at 436 East Pecos Road,
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`Suite 139 in Gilbert, Arizona 85295.
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`6.
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`The instant case involves the explosion of a lithium-ion battery and the subject
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`battery, and other similar/identical batteries, was advertised, marketed, sold, distributed, and
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`placed into the stream of commerce through the engagement of the Samsung Defendants and
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 2
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`one or more distributors and/or retailers who sell and distribute Samsung products, including the
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`subject battery and similar batteries to consumers.
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`7.
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`At all pertinent times, Samsung Korea derived substantial revenue from the sale
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`of lithium-ion batteries such as the Subject Battery in the State of Arizona.
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`8.
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`The true names and capacities of the Defendants Does 1 through 50, whether
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`individual, corporate, associate, or otherwise, are unknown to Plaintiff at the time of filing this
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`Complaint. Therefore, Plaintiff sues said Defendants by sch fictious names and will ask leave
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`of Court to amend this Complaint to show their true names or capacities when the same have
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`been ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the Doe
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`Defendants is, in some manner, responsible for the events and happenings herein and
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`proximately caused he injuries and damages to Plaintiff as alleged in this Complaint.
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`JURISDICTION AND VENUE
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`9.
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`Subject matter jurisdiction in this Court is appropriate because there is complete
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`diversity and the amount in controversy exceeds seventy-five thousand ($75,000) dollars,
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`pursuant to 28 U.S.C. § 1332.
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`10.
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`This Court has personal jurisdiction over Defendant Samsung SDI Co. Ltd
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`because of its this case arises under federal law, and Defendant Samsung SDI Co. Ltd. has
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`maintained purposeful, continuous, and systematic contacts with Arizona entities and the
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`Arizona market.
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`11.
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`This Court is an appropriate venue for the cause of action because substantial acts
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`or omissions took place in this district.
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`FACTUAL ALLEGATIONS
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`12.
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`E-cigarettes, also known as e-cigs, vapes, vape pens, and mods (customizable,
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`more powerful vaporizers) are battery operated devices that deliver nicotine through flavoring
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 3
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`and other chemicals to users in the form of vapor instead of smoke.1 They were first patented in
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`2003 and have been available for sale in the United States since 2007.2
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`13.
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`E-cigarettes are designed to simulate the act of smoking traditional tobacco,
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`allegedly with less of the toxic chemicals produced by the burning of tobacco leaves and other
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`chemicals contained in traditional, combustible cigarettes.3 E-cigarettes offer doses of nicotine
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`with a vaporized solution, often referred to as “juice,” “e-liquid,” or “pods,” providing a physical
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`sensation similar to tobacco smoke.
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`14.
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`Generally, electronic cigarettes operate the same way regardless of the model in
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`that they typically consist of at least three (3) component parts: a tank, a battery that works to
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`heat the juices or e-liquid contained in the tank, and an atomizer that converts the liquid into
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`vapor that the user inhales.
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`15.
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`E-cigarettes differ from traditional cigarettes in a critical way: the e-cigarette is
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`battery-operated and uses a heating element to produce vapor, and the traditional cigarette has
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`no electronic component. While both products may produce a similar physical sensation, e-
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`cigarettes pose an additional danger - the battery-powered heating element, as well as the battery
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`itself - that can and have caused explosions, fires, and serious injury.
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`16.
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`E-cigarettes are more dangerous than other products that contain lithium batteries
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`because the e-cigarette is most often designed as a cylindrical device, requiring a lithium-ion
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`battery of a similar shape. When the device malfunctions or fails, the battery can be shot out
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`like a bullet or rocket.4
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`1 See generally, Electronic Cigarettes, National Institute on Drug Abuse, Rev. March 2018, available at
`https://www.drugabuse.gov/publications/drugfacts/electronic-cigarettes-e-cigarettes.
`2 McKenna, L., Electronic Cigarette Fires and Explosions in the United States 2009-2016, U.S. Fire administration,
`July 2017 available at https://www.usfa.fema.gov/downloads/pdf/publications/electronic_cigarettes.pdf
`3 See generally, Electronic Cigarettes, National Institute on Drug Abuse, Rev. March 2018, available at
`https://www.drugabuse.gov/publications/drugfacts/electronic-cigarettes-e-cigarettes.
`4 United States Fire Administration, Electronic Cigarette Fires and Explosions, October 2012, at p. 5.
`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 4
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 5 of 17
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`17.
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`18.
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`At least two deaths have been reported in relation to an exploding e-cigarette.5
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`E-cigarettes have become increasingly popular. They have been marketed as
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`smoking-cessation aids and as a healthier alternative to traditional tobacco cigarettes. The
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`selection of products has grown at an extremely rapid rate.
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`19.
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`Since their introduction into the United States, sales have risen dramatically from
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`approximately $20 million in 2008 to $2.5 billion in 2012. Industry experts predict the e-
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`cigarette industry will become an $85 billion business within a decade and surpass the tobacco
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`industry.6
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`20.
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`In January 2014, there were 466 brands of e-cigarettes and over 7,000 unique e-
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`cigarette juice flavors available for sale.7
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`21.
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`Until recently, e-cigarette marketing has been unfettered and unregulated.
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`Whereas tobacco advertisements have been banned on radio and television for more than 40
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`years, no such restrictions have been instituted in the e-cigarette arena. Manufacturers,
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`distributors, and sellers of e-cigarettes therefore reach a broader consumer base than the tobacco
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`industry and have the freedom to utilize the same marketing tactics previously employed by big
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`tobacco. Namely, to tout the supposed health benefits of their products absent scientific and
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`medical data to support such claims; to portray e-cigarette smoking as a harmless pastime on TV,
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`radio, and in print; capitalize on individuals already addicted to nicotine; and/or encourage
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`nicotine newcomers (mainly youths and young adults) to pick up the habit.
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`5 See https://www.washingtonpost.com/health/2019/02/05/vape-pen-kills-man-after-exploding-his-mouth/.
`6 Clarke, T., Reports of E-Cigarette Injury Jump Amid Rising Popularity, United States Data Show, Reuters.com,
`April 17, 2012.
`7 Zhu, S. H., Sun, J. Y., Bonnevie, E., Cummins, S., Gamst, A., Yin, L., & Lee, M. (2014). Four hundred and sixty
`brands of e-cigarettes and counting: Implications for product regulation. Tobacco Control Act 2014, 23: iii3-iii9.
`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 5
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 6 of 17
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`22.
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`Despite advertisements that represent e-cigarettes as a healthier alternative to
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`traditional cigarettes, various articles have concluded that the long-lasting effects of smoking e-
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`cigarette devices are unknown.8
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`23.
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`In 2017, the United States Fire Administration characterized the “combination of
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`an electronic cigarette and a lithium-ion battery” as a “new and unique hazard” because there is
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`“no analogy among consumer products to the risk of a severe, acute injury presented by an e-
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`cigarette.”9
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`The Injury
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`24.
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`Plaintiff Justin Kasper purchased the e-cigarette mod, which contained no
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`warnings, and component parts, including the Subject Battery from Red Star Vapor, LLC dba
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`Red Star Vape Smoke & CBD, located at 1731W Baseline Road, Suite 105, Mesa, Arizona
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`85202.
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`25.
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`On or around August 2, 2019, Plaintiff Alexis Duran, then nine months
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`pregnant with their second child, was standing in the bedroom doorway talking to her husband
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`Plaintiff Justin Kasper, who was laying on his bed with his vape pen on his stomach and his
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`infant, Plaintiff Justin Kasper, Jr., was lying next to him when suddenly, and without warning
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`Plaintiffs heard a loud pop and saw flames shooting out from the vape pen. The two batteries
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`shot out of the device, the room was filled with smoke and the bed was covered in flames.
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`26.
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`Plaintiff Alexis Duran called 911 while she watched her husband attempt to
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`extinguish the flames that engulfed the bed and their infant son, Plaintiff Justin Kasper, Jr.
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`27.
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`The fire department and ambulance quickly arrived and took Plaintiffs to
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`88 See e.g. National Academies of Sciences, Engineering, and Medicine, Public Health Consequences of E-Cigarettes,
`Washington, DC: The National Academies Press, 2018 (characterizing the use of e-cigarettes on public health as
`“unknown” and conclusively determining e-cigarette smokers are exposed to potentially toxic substances in addition
`to nicotine).
`9 McKenna, L., Electronic Cigarette Fires and Explosions in the United States 2009-2016, U.S. Fire administration,
`July 2017.
`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 6
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 7 of 17
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`Maricopa Burn Center, where Plaintiff Justin Kasper, Jr. was diagnosed treated for severe
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`second-degree burns to his ears, left thigh, and left arm.
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`28.
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`Plaintiff Justin Kasper, Jr was prescribed liquid oxycodone upon discharge to help
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`with the intense pain.
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`29.
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`Plaintiff Justin Kasper was diagnosed and treated for first-degree burns on his
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`arms from putting out the fire on the bed.
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`30.
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`As a result of the explosion, Plaintiff Justin Kasper, Jr. has permanent scars on
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`his ear, left arm, and left leg that serve as a lifetime reminder of this painful incident.
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`31.
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`As a result of the explosion, Plaintiff Justin Kasper is left physical and
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`emotionally scarred from the burns and from the sight of his child on fire.
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`32.
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`As a result of the explosion, Plaintiff Alexis Duran is also left emotionally scarred
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`from the sight of her child on fire.
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`First Cause of Action Against Defendant Samsung SDI Co., Ltd.
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`(Products Liability – Strict Liability— Manufacturing Defect)
`33. Plaintiffs incorporate the preceding paragraphs by reference as if fully stated herein.
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`34.
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`At all times mention herein, Defendants were engaged in the business of
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`manufacturing, fabricating, designing, assembling, distributing, selling, warranting, wholesaling,
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`supplying, and/or marketing lithium-ion batteries such as the Subject Battery throughout the
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`United States by means of interstate commerce.
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`35.
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`Defendants defectively manufactured the Subject Battery made it dangerous,
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`hazardous, and unsafe for its intended use.
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`36.
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`Defendants placed the Subject Battery in the stream of commerce with the
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`knowledge that it would be used without inspecting for dangers or defects. Defendants knew, or
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`should have known, that ultimate users or consumers, such as Plaintiff Justin Kasper, would not
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 7
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`or could not inspect these products for dangerous conditions, and that the detection of such defects
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`and dangers would be beyond the capabilities of such persons.
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`37.
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`At the time of incident, the Subject Battery was substantially in the same condition
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`as it was when introduced into the stream of commerce by Defendant, and when used in a
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`reasonably foreseeable manner by Plaintiff Justin Kasper.
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`38.
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`As a direct and proximate cause of the manufacturing defect, Plaintiff Justin Kasper
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`Jr. suffered severe injuries.
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`39.
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`The above referenced conduct of Defendants, and each of them, was and is willful,
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`malicious, fraudulent, oppressive, outrageous, and in conscious disregard and indifference to the
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`safety and health of purchasers, users and consumers of said products, including Plaintiff Justin
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`Kasper. Plaintiffs, for the sake of example, and by way of punishing Defendants, seek punitive
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`damages according to proof.
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`WHEREFORE, Plaintiffs pray for judgement against Defendants, and each of them, as set forth
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`herein.
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`40.
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`41.
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`Second Cause of Action Against All Defendants
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`(Products Liability – Strict Liability—Design Defect)
`Plaintiffs incorporate the preceding paragraphs by reference as if fully stated herein.
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`At all times mention herein, Defendants were engaged in the business of
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`manufacturing, fabricating, designing, assembling, distributing, selling, warranting, wholesaling,
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`supplying, and/or marketing lithium-ion batteries such as the Subject Battery throughout the
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`United States by means of interstate commerce.
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`42.
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`Defendants placed the Subject Battery in the stream of commerce with the
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`knowledge that it would be used without inspecting for dangers or defects. Defendants knew, or
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`should have known, that ultimate users or consumers, such as Plaintiff Justin Kasper, would not
`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 8
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 9 of 17
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`or could not inspect these products for dangerous conditions, and that the detection of such defects
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`and dangers would be beyond the capabilities of such persons.
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`43.
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`Defendants manufactured, fabricated, designed, assembled, distributed, and/or sold
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`the Subject Battery with defects in the design which made them dangerous, hazardous, and unsafe
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`for their intended use.
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`44.
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`The Subject Battery, when sold and distributed by Defendants, was defective and
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`unreasonably dangerous to ultimate users and consumer in, but not limited to, the following ways:
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`a. The Subject Battery failed to perform as safely as an ordinary consumer would
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`expect when used in an intended or foreseeable manner;
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`b. The Subject Battery was sold in an unsafe, unreasonably dangerous and defective
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`condition such that the battery had an unreasonable propensity to overheat and
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`catch fire during normal and foreseeable use;
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`c. The Subject Battery was so in an unsafe and unreasonable dangerous and defective
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`condition such that the batter had an unreasonably dangerous and defective
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`condition such that the battery had an unreasonable propensity to short-circuit and
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`explode during normal and foreseeable conditions;
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`d. The Subject Battery was defective due to inadequate, or the absence of, warnings,
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`or instructions to alert users regarding the hazardous conditions described herein
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`and to provide instructions on safe use.
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`45.
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`The risk of danger in the design of the Subject Battery outweighed any benefits of
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`the design. Safer, alternative designs were available at the time Defendants manufactured,
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`fabricated, designed, assembled, labeled, packaged, supplied, distributed, and/or sold the Subject
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`Battery.
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 9
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`46.
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`At the time of incident, the Subject Battery was substantially in the same condition
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`as it was when introduced into the stream of commerce by Defendant, and when used in a
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`reasonably foreseeable manner by Plaintiff Justin Kasper.
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`47.
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`The above-described defects in the subject battery were the proximate cause of
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`the Plaintiffs’ injuries and damages.
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`48.
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`The above referenced conduct of Defendants, and each of them, was and is
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`willful, malicious, fraudulent, oppressive, outrageous, and in conscious disregard and
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`indifference to the safety and health of purchasers, users and consumers of said products,
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`including Plaintiff Justin Kasper. Plaintiffs, for the sake of example, and by way of punishing
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`Defendants, seek punitive damages according to proof.
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`WHEREFORE, Plaintiffs pray for judgement against Defendants, and each of them, as
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`set forth herein.
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`Third Cause of Action Against All Defendants
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`(Products Liability – Strict Liability – Failure to Warn)
`Plaintiffs refers to each and every preceding paragraph and incorporates those
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`49.
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`paragraphs as though fully stated herein.
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`50.
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`Defendants knew or should have known that the Subject Battery would be used in
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`the manner used by Plaintiff Justin Kasper.
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`51.
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`In researching, testing, designing, manufacturing, labeling, selling, distributing,
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`advertising, promoting, marketing, servicing, and/or supplying the Subject Battery, Defendants
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`knew, or should have known, that there was a high risk of injury or death resulting from the use of
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`the Subject Battery in a reasonably foreseeable and intended manner.
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`52.
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`Defendants were aware that ultimate users and consumers, such as Plaintiff Justin
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`Kasper, had no knowledge or information indicating that the Subject Battery had a high risk of
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 10
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`

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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 11 of 17
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`injury or death when used in a reasonably foreseeable and intended manner.
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`53.
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`Defendants knew that ultimate users and consumers of the Subject Battery would
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`and did assume that it was safe, and that such consumers, like Plaintiff Justin Kasper, would not
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`have recognized the inherent risks, or had the ability and requisite knowledge to inspect the Subject
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`Battery for defects and dangers.
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`54.
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`Defendants failed to warn consumers of the risks and dangers of the Subject Battery
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`in, but not limited to, the following ways:
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`e. Defendants never warned Plaintiff hat that the Subject Battery had the propensity
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`to overheat and explode during its foreseeable and expected use;
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`f. Defendants never warned Plaintiff that the Subject Battery was not designed to be
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`used with e-cigarettes or personal vaping devices;
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`g. Defendants never warned Plaintiff that the Subject Battery lacked critical safety
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`components that are regularly incorporated into other similar batteries.
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`55.
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`Upon information and belief, the aforementioned conduct of Defendants was
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`motivated by Defendant’s financial interests. In pursuance of said financial motivation, Defendants
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`consciously disregard the safety of ultimate users and consumers, like Plaintiff Justin Kasper, of
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`said products.
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`56.
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`Defendant’s failure to warn Plaintiff of the above referenced, known defects and
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`dangers of the Subject Battery was the proximate cause of Plaintiffs’ injuries and damages.
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`57.
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`The above referenced conduct of Defendants, and each of them, was and is
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`willful, malicious, fraudulent, oppressive, outrageous, and in conscious disregard and
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`indifference to the safety and health of purchasers, users and consumers of said products,
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`including Plaintiffs.
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 11
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`

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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 12 of 17
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`58.
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`Plaintiffs, for the sake of example, and by way of punishing Defendants, seek
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`punitive damages according to proof.
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`WHEREFORE, Plaintiffs pray for judgement against Defendants, and each of them, as set
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`forth herein.
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`Fourth Cause of Action Against All Defendants
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`(Products Liability – Negligence)
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`59.
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`Plaintiffs refer to each and every preceding paragraph and incorporates those
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`paragraphs as if fully stated herein.
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`60.
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`Upon information and belief, and at all times herein mentioned, Defendants and
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`each of them, negligently, recklessly and carelessly manufactured, fabricated, designed,
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`assembled, distributed, sold, inspected, warranted, labeled, marketed and advertised the Subject
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`Battery that it was dangerous and unsafe for their intended and/or reasonably foreseeable use.
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`61.
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`Defendants, and each of them, owed a duty to Plaintiffs to exercise reasonable
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`care in the design, manufacture, inspection, distribution and/or sale of the Subject Battery to
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`ensure that the Subject Battery was safe for their intended and/or reasonably foreseeable use.
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`62.
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`Defendants, and each of them, knew or in the exercise of due care should have
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`known that the Subject Battery would be used without inspection in an unreasonably dangerous
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`condition and would create a foreseeable risk of harm to users.
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`63.
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`Defendants, and each of them, were under a duty to properly and adequately
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`instruct, warn and/or sell the Subject Battery in a reasonably safe condition as not to present a
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`danger to members of the general public who reasonably and expectedly, under ordinary
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`circumstances, would come into contact with it, including Plaintiffs.
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`64.
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`Defendants, and each of them, failed to exercise the amount of care in the design,
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`manufacture, inspection, distribution, and sale of the Subject Battery that a reasonably careful
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`manufacturer, designer, supplier or seller would have used in similar circumstances to avoid
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`exposing others to a foreseeable risk of harm.
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 12
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`

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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 13 of 17
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`65.
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`Defendants, and each of them, knew or reasonably should have known that the
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`Subject Battery was dangerous or were likely to be dangerous when used or misused in a
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`reasonably foreseeable manner. Defendants, and each of them, knew or reasonably should have
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`known that ordinary users, like Plaintiff Justin Kasper, would not realize the hazards and risks
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`posed by the Subject Battery.
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`66.
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`Upon information and belief, at the time of the incident, Plaintiff Justin Kasper
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`was not aware that the Subject Battery presented any risk of injury to him or his family, and had
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`not been advised or informed by anyone that the Subject Battery could explode or otherwise pose
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`a risk to his health and safety.
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`67.
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`Defendants, each of them failed to adequately warn purchasers, consumers, and
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`end user, including Plaintiff Justin Kasper, about the severe hazards posed by the Subject Battery
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`and/or instructed on the safe use of such products. A reasonable manufacturer, distributor,
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`designer, supplier, or seller under the same or similar circumstances would have warned of the
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`dangers posed by the Subject Battery or instructed on the safe use of the Subject Battery.
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`68.
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`Defendants, and each of them, negligently provided incorrect and/or inadequate
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`recommendations, advice, and instruction to Plaintiff Justin Kasper regarding the combination
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`and compatibility of the Subject Battery and its use.
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`69.
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`Defendant’s negligence was the proximate case of Plaintiffs’ injuries and
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`damages.
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`WHEREFORE, Plaintiffs pray for judgement against Defendants, and each of them, as
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`set forth herein.
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`Fifth Cause of Action Against All Defendants
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`(Negligent Infliction of Emotional Distress)
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`70.
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`Plaintiffs refer to each and every preceding paragraph and incorporates those
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`paragraphs by reference as though fully stated herein.
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 13
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 14 of 17
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`71.
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`Plaintiff Alexis Duran and Plaintiff Justin Kasper, as parents of Plaintiff Justin
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`Kasper, Jr., have a close relationship to him.
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`72.
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`Plaintiffs Alexis Duran and Justin Kasper were in the zone of danger and at risk
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`of serious bodily harm when they witnessed their son catch fire as a result of the battery
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`explosion, Plaintiff Justin Kasper was on the bed with his son and Plaintiff Alexis Duran was
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`standing a few feet away in the doorway.
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`73.
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`Plaintiffs Alexis Duran and Plaintiff Justin Kasper witnessed their infant son
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`catch on fire when the Subject Battery exploded and heard his painful cries all throughout the
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`healing process.
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`74.
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`Plaintiff Alexis Duran was 9 months pregnant when she witnessed her infant son
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`catch on fire and has suffered ongoing emotion distress stemming from the traumatic incident.
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`75.
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`Plaintiff Justin Kasper had first-degree burns on his arms after he extinguished the
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`flames that engulfed his child.
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`76.
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`Defendants’ negligence caused an unreasonable risk of injury and distress to
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`Plaintiffs.
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`WHEREFORE, Plaintiffs pray for judgement against Defendants, and each of them, as set forth
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`herein.
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`Sixth Cause of Action Against All Defendants
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`(Breach of Implied Warranty of Merchantability)
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`77.
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`Plaintiffs incorporates the preceding paragraphs by reference as if fully stated
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`herein.
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`78.
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`Because of the inherent design defects, the Subject Battery is not fit for the ordinary
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`purpose for which it is used.
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`79.
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`Because the Subject Battery is o fit for the ordinary purpose for which they are used,
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`Defendants’ sale of the same breach the implied warranty of merchantability.
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 14
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 15 of 17
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`80.
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`Any attempts by Defendants to disclaim the implied warranty of merchantability
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`were unconscionable because to the extent the disclaimers were made, they were made with full
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`knowledge of the inherently dangerous defect encumbering each battery.
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`81.
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`Specifically, Defendants withheld information regarding the inherently dangerous
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`condition of the lithium-ion batteries, including the subject batteries. The Defendants created a
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`one-sided condition herein they knew Plaintiff was presuming its decision to purchase the goods
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`subject to flawed and incomplete information, resulting in unfair surprise to Plaintiff when he
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`eventually learned of the inherently dangerous nature of the batteries.
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`82.
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`83.
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`Plaintiffs suffered personal injury as a result of Defendants’ breach.
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`But for Defendants’ breach of implied warranty of merchantability, Plaintiffs
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`would not have suffered the damages articulated herein.
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`84.
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`Defendants breach was the proximate cause of Plaintiffs’ injuries and damages.
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`WHEREFORE, Plaintiffs pray for judgement against Defendants, and each of them, as set forth
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`herein.
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`Seventh Cause of Action Against All Defendants
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`(Violation of the Magnuson-Moss Act)
`85. Plaintiffs incorporate the preceding paragraphs by reference as if fully stated herein.
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`The subject batteries are “consumer products” as defined in 15 U.S.C. § 2301 (1).
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`Plaintiff Justin Kasper is a “consumer” as defined in 15 U.S.C. § 2301(3).
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`The Defendants are “suppliers” and “warrantors” as defined in 15 U.S.C. § 2301
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`86.
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`87.
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`88.
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`(4) and (5).
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`89.
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`The defective batteries’ implied warranties are covered under 15 U.S.C. §2301(7).
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`COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL - 15
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`Case 2:21-cv-01191-ESW Document 1 Filed 07/08/21 Page 16 of 17
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`90.
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`The Defendants breached implied warranties by: (a) designing, manufacturing, and
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`selling to Plaintiff, defective and unsafe batteries; (b) providing lithium-ion batteries that are not
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`merchantable and not fit for their ordinary purpose of safely using an e-cigarette because the
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`batteries present an unreasonable risk of thermal runaway and explosions; and (c) not incorporating
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`safety measures to eliminate the identified defects.
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`91.
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`At the time Defendants manufactured, sold, distributed, and/or placed the batteries
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`into the stream of commerce, Defen