Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`BERNARDINO AUGUSTO MANUEL,
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`Plaintiff,
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`v.
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`SONY CORPORATION OF AMERICA, and
`SONY ENERGY DEVICES
`CORPORATION,
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`Defendants.
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`Civil Action No.: _______________
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`COMPLAINT AND DEMAND
`FOR JURY TRIAL
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`COMPLAINT
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`Plaintiff, BERNARDINO AUGUSTO MANUEL (hereafter referred to as “Plaintiff”),
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`by and through his undersigned counsel, JOHNSON BECKER, PLLC and SANDERS
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`PHILLIPS GROSSMAN, LLC, hereby submits the following Complaint and Demand for Jury
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`Trial against SONY CORPORATION OF AMERICA (“Sony America”) and SONY
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`ENERGY DEVICES CORPORATION. (“Sony Japan”), and alleges the following upon
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`personal knowledge and belief, and investigation of counsel:
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`NATURE OF THE ACTION
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`1.
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`This is a product liability action seeking recovery for substantial personal injuries and
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`damages suffered by Plaintiff after Plaintiff was supplied and used a Sony 18650 battery
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`(hereafter referred to as “Subject Battery”) marketed, sold, and distributed by Defendant Sony
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`America by and through its officers, employees and agents. The Subject Battery was designed,
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`manufactured, marketed, and sold by Sony Japan.
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`1
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 2 of 25
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`2.
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`On or about October 5, 2017, the Subject Battery exploded while in Plaintiff’s front-right
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`pants pocket. As a result, Plaintiff’s clothing caught fire, causing him to suffer serious burn
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`injuries including, but not limited to, partial and full thickness burn injuries to his right thigh and
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`both hands.
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`3.
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`As a direct and proximate result of the Defendants’ collective conduct, Plaintiff has
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`incurred significant and painful bodily injuries, physical pain, mental anguish, and diminished
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`enjoyment of life.
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`PARTIES, JURISDICTION & VENUE
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`4.
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`At all times relevant, Plaintiff was a citizen and resident of the City of Freemont, County
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`of Dodge, State of Nebraska. Plaintiff currently resides in Yuba City, County of Sutter, State of
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`California.
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`5.
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`Sony America is a New York Corporation, which has its principal place of business at 25
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`Madison Avenue, New York, New York 12207.
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`6.
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`Upon information belief, Sony America is engaged in the business of supplying, selling
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`and distributing lithium ion battery including but not limited to the Subject Battery purchased by
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`Plaintiff. In addition, Sony America has conducted substantial, ongoing business in this state and
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`has extensive, ongoing, and specific contacts with New York that include, but are not limited to,
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`the following:
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`a.
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`b.
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`At all times relevant herein, and upon information belief, Sony America has had
`continuing contacts with this District by selling, importing and distributing goods,
`including but not limited to the Subject Battery, with the actual knowledge and/or
`reasonable expectation that they will be used in this county and which are in fact
`used, sold, distributed, and retailed in this county;
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`At all times relevant herein, Sony America has had continuing contacts with the
`State of New York by transacting substantial business in this state via supplying,
`selling, importing and distributing goods, including but not limited to the Subject
`Battery, with the actual knowledge and/or reasonable expectation that they will be
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`2
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 3 of 25
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`c.
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`d.
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`used in this state and which are in fact used in this state;
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`Upon information and belief, Sony America distributed, sold or otherwise placed
`into its distribution chain the Subject Battery that caused the injuries at issue in
`this matter; and
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`Sony America has received substantial compensation from the sale of its products
`in this state, including but not limited to Sony Batteries.
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`Sony Japan is corporation and/or business entity organized and existing under the laws of
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`7.
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`Japan, with its principal place of business at 1-7-1 Konan Minato-ku, Tokyo, 108-0075 Japan.
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`8.
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`Sony Japan is engaged in the business of manufacturing, designing, testing, marketing,
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`certifying, supplying, selling, importing and distributing lithium ion Battery including but not
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`limited to the Subject Battery that was supplied to Plaintiff. In addition, Sony Japan has
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`conducted substantial, ongoing business in this state and has extensive, ongoing, and specific
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`contacts with New York that include, but are not limited to, the following:
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`a.
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`b.
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`c.
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`d.
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`At all times relevant herein, Sony Japan has had continuing contacts with this
`County by manufacturing designing, testing, marketing, certifying, supplying,
`selling, importing and distributing goods, including but not limited to the Subject
`Battery, with the actual knowledge and/or reasonable expectation that they will be
`used in this county and which are in fact used, sold, distributed, and retailed in
`this county;
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`At all times relevant herein, Sony Japan has had continuing contacts with the
`State of New York by transacting substantial business in this state via
`manufacturing, designing,
`testing, marketing, certifying,
`supplying, selling,
`importing and distributing goods, including but not limited to the Subject Battery,
`with the actual knowledge and/or reasonable expectation that they will be used in
`this state and which are in fact used in this state;
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`Sony Japan designed, manufactured, sold or otherwise placed into its distribution
`chain the Subject Battery that caused the injuries at issue in this matter;
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`Sony Japan has received substantial compensation from the sale of its products in
`this state, including but not limited to 18650 batteries;
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`In addition, Sony Japan’s contacts with New York principally relate to the placement of
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`9.
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`electronic devices, including lithium ion batteries, into the stream of commerce, and all of the
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`3
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 4 of 25
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`conduct associated with placing those products into the stream of commerce in New York and
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`associated with this civil action are related to and connected with the placement of Subject
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`Battery used in electronic cigarette devices into the stream of commerce.
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`10.
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`At all times relevant herein, Sony Japan has purposefully availed itself of the privilege of
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`conducting business in the State of New York, has transacted business in the State of New York
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`with and through Sony America, regularly caused its products to be sold in the State of New
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`York. Therefore, general and specific personal jurisdiction is proper under Due Process Clauses
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`of the Fifth and Fourteenth Amendments to the Constitution of the United States of America.
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`11.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 and the action is
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`therefore proper in this Court.
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`12.
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`13.
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`Venue is proper pursuant to 28 U.S.C. §§ 1391(c) and is therefore proper in this court.
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`The amount in controversy exceeds the sum of seventy-five thousand ($75,000.00)
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`dollars, exclusive of interest and costs.
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`FACTUAL ALLEGATIONS
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`14. Manufacturers, distributors, and sellers of electronic cigarettes, or “e-cigarettes,” as they
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`are more commonly known, claim to provide a tobacco-free and smoke-free alternative to
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`traditional cigarettes. E-cigarettes offer doses of nicotine via a vaporized solution.
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`15.
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`All e-cigarettes are designed and function in a similar way. They consist of three primary
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`component parts: a tank or cartridge that is filled with a liquid (known as "juice" or "e-liquid")1
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`that usually contains a concentration of nicotine; an “atomizer” or “cartomizer", which heats and
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`converts the contents of the liquid-filled cartridge to a vapor that the user then inhales (hence the
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`term, “vaping”); and a battery, which provides power for the atomizer. The atomizer itself
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`1 While the ingredients of the liquid vary from brand to brand, E-Juice typically contains 95%
`propylene glycol and glycerin. Hundreds of different types and brands of E-Juice exist, and come
`in flavors such as cherry, cheesecake and cinnamon.
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`4
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 5 of 25
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`typically contains three components: the casing; the wire (or "coil"); and the wicking material.
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`The wire is wrapped around the wicking material (usually cotton) in a coil formation; the two
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`ends of the coil are then connected to the casing in a way that permits contact with the battery.
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`When e-liquid is added to the e-cigarette's tank, the wicking material absorbs it. When the user
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`activates the e-cigarette’s battery, the coil heats, vaporizing the e-liquid within the wicking
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`material.
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`See
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`http://vapingguides.com/blog/vapor-trails-2/atomizer-vs-cartomizer/ (last accessed September
`22, 2020).
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`16.
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`Heating coils feature a specific resistance,2 which is measured in ohms.3 In order for an
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`e-cigarette to work effectively (and safely) the battery voltage must be carefully balanced with
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`the heating coil resistance. If the battery voltage is too high and the resistance is too low, the
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`heating coil can overheat and damage the battery, allowing for “thermal runaway”4 to occur,
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`whereby the internal battery temperature can cause a fire or explosion, and which is often the
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`2 Specific resistance is the measure of the potential electrical resistance of a conductive material.
`It
`is determined experimentally using
`the equation ρ = RA/l, where R
`is
`the
`measured resistance of some length of the material, A is its cross-sectional area (which must be
`uniform), and l is its length.
`3 Ohms are the standard international unit of electrical resistance, expressing the resistance in a
`circuit transmitting a current of one ampere when subjected to a potential difference of one volt.
`4 Thermal runaway refers to a chemical reaction in which a repeating cycle of excessive heat
`causes more heat until an explosion occurs. According to the USFA, one of the main causes of
`thermal runaway is the battery overheating. See generally, U.S. Fire Administration, “Electronic
`Cigarette Fires and Explosions in the United States 2009 – 2016,” updated July 2017.
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`5
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 6 of 25
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`result of “poor design, use of low quality materials … [and] manufacturing flaws and
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`defects….”5
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`17.
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`E-cigarette batteries, like the Subject Battery in this case, are typically cylindrical
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`lithium-ion Battery. Some e-cigarette batteries are rechargeable, and others are disposable. Some
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`e-cigarettes are closed systems, in which prefilled tanks are used; others are also open systems
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`that allow the user to manually refill the tank with e-liquid. E-cigarettes come in pen form (these
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`are usually plastic and are modeled after a traditional cigarette) and in a form known as a ‘mod.’
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`Mods are metal devices that are heavier than pen e-cigarettes and carry a much higher capacity
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`for juice and creation of vapor. There are many different types of mods, some of which require
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`the use and replacement of atomizer coils like those described above.
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`18.
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`E-cigarette batteries, like the Subject Sony Battery, typically consist of layers of metallic
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`anode and cathode6 material separated by a porous film or “wrapping” 7 which holds liquid
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`electrolytes. The electrolytes used in these Battery are either flammable or combustible liquids.
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`19. While e-cigarettes were first patented in 2003, they first entered the market exclusively in
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`China in 2004 and did not first appear in the United States until 2007. Since that time, U.S. sales
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`of electronic cigarettes have risen dramatically — from approximately $20 million in 2008 to
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`$2.5 billion in 2014. According to some media sources, industry experts predict the e-cigarette
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`industry will reach $32.11 billion by 2021.
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`20.
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`Lithium ion batteries, commonly used in e-cigarettes, pose a risk of fire and explosion.8
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`A medical case report of a man in New Jersey, whose e-cigarette exploded in his pocket causing
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`5 See Ben DJ. Burn Care Res. 2009 Nov-Dec; 30(6): 1048.
`6 The cathode of a device is the terminal where the energy current flows out, as where the anode
`is where the energy current flows in.
`7 The battery “wrapping” is often made of plastic or other porous film and serves to keep the
`liquid electrolytes within the battery from coming into direct contact with outside sources.
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`6
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 7 of 25
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`him severe burns, noted, “the potential for serious burn injuries related to device malfunction is
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`of concern.”9
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`21.
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`Some tout e-cigarettes as a safer alternative to traditional cigarettes because e-cigarettes
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`do not contain tobacco, do not actually burn or create smoke, and do not pose the same risks of
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`second-hand smoke inhalation. However, these supposedly ‘safer’ alternatives to traditional
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`cigarettes are still the subject of debate, as they still often provide nicotine, which is a neurotoxin
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`and extremely addictive. Further, the actual and long-term effects of the chemicals in e-liquid
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`and vapor are unknown, as the technology is still relatively new.
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`22.
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`Only a few federal regulations have been promulgated or proposed regarding e-cigarette
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`sales and use. Many of these products are shipped from China and placed into the stream of
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`commerce without any knowledge as to what is in them, how they were made, or whether they
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`are safe for consumers.
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`23.
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`In 2009, the United States Food and Drug Administration ("FDA") first attempted to
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`regulate e-cigarettes under
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`the Food, Drug, and Cosmetic Act ("FDCA"). E-cigarette
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`manufacturers then successfully sued the FDA, claiming e-cigarettes should not be considered
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`medical devices subject to the provisions of FDCA. Because of this ruling and lack of regulatory
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`oversight, e-cigarette sales skyrocketed.
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`24.
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`On April 25, 2014, the FDA released a proposed regulation that would extend the
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`statutory definition of "tobacco product" to include e-cigarettes. While the FDA regulates
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`8 Lithium- ion Battery have been referred to as the “mini bomb in your pocket” due to its
`known ability to spontaneously ignite. See Ben D., Ma B., Liu L, et al., Unusual Burns
`with Combined Injuries Caused by Mobile Phone Explosion: Watch Out for the “mini
`Bomb!”, J. Burn Care Res. 2009 Nov-Dec; 30(6): 1048.
`9 Spontaneous Electronic Cigarette Explosion: A Case Report, American Journal of
`Medical Case Reports, 2015, Vol. 3, No. 4, 93-94, 94.
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`7
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 8 of 25
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`traditional cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco under its
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`tobacco control authority, e-cigarettes are not yet defined as a tobacco product.
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`25.
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`An October 2014 report notes the proposed FDA regulations do not include any
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`consideration of the battery or electronic components of the devices, as the FDA is only
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`addressing the health effects of vapor inhalation. 10 Further, the U.S. Fire Administration noted
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`the World Health Organization recently proposed member states adopt stringent controls on e -
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`cigarettes, but did not include any language addressing the electronics themselves. The U.S.
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`Consumer Product Safety Commission has advised e-cigarettes do not fall under its jurisdiction.
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`As noted in October 2014, and as was the case when Plaintiff purchased his e -cigarette and its
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`Battery, “no regulation, code or law applies to the safety of the electronics or Battery in e-
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`cigarettes. While many consumer products are required to be tested by a nationally recognized
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`test laboratory . . . there are no requirements that e-cigarettes be subjected to the product safety
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`testing.”11
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`26.
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`On August 8, 2016, a new FDA rule took effect expanding regulation to e-cigarettes.
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`According to the FDA [t]his final rule has two purposes: (1) To deem all products that meet the
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`definition of “tobacco product” under the law, except accessories of a newly deemed tobacco
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`product, and subject them to the tobacco control authorities in chapter IX of the FD&C Act and
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`FDA's implementing regulations; and (2) to establish specific restrictions that are appropriate for
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`the protection of the public health for the newly deemed tobacco products.
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`27.
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`E-cigarettes and e-cigarette bateries have caused numerous fires and explosions injuring
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`consumers. Federal, state, and local efforts have recently been aimed at protecting public health
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`10 See United States Fire Administration, Electronic Cigarette Fires and Explosions, October
`2014, at 2.
`11 Id.
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`8
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 9 of 25
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`via regulations on sale and use of e-cigarettes, but not on the safety hazards posed by the
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`products themselves.
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`28.
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`There is mounting evidence the explosions and fires caused by e-cigarettes and lithium
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`ion Battery are increasing in occurrence. The U.S. Department of Transportation ("DOT") issued
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`a rule banning e-cigarettes from checked bags on airplanes because they have been known to
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`catch fire. The DOT has also determined e-cigarettes may not be used during flight. The
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`explosion of e-cigarettes and lithium ion batteries are not novel occurrences; a California man
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`recently lost his eye as a result of an e-cigarette exploding near him. A southern California
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`woman was set on fire after an e-cigarette exploded while she was a passenger in a car. An
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`Atlanta woman's couch and rug caught on fire after an e-cigarette exploded, almost burning her
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`house down. Complaints of injury caused by e-cigarettes continue to rise as the devices'
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`popularity increases.
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`29.
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`These products continue to be placed into the stream of commerce in an untested and
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`unsafe condition and will continue to cause injuries unless and until those responsible are held
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`accountable.
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`30.
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`The Subject Battery is one such lithium ion battery.
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`31.
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`Upon information and belief, Sony Japan sells and distributes 18650 batteries such as the
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`Subject Battery worldwide, including in New York.
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`32.
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`It has been common practice for users and consumers to utilize lithium ion battery to
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`power their e-cigarette devices since the inception of e-cigarettes in 2003.
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`33.
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`Upon information and belief, Sony Japan has been aware that its lithium ion batteries,
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`including but not limited to 18650 batteries such as the Subject Battery, have been used in e-
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`cigarette devices for more than a decade.
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`9
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`34.
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`Sony Japan, its agents, servants and employees, participated in the design, formulation,
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`production, manufacture, construction, assembly, marketing, distribution, delivery, and sale of
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`the 18650 batteries, including the Subject Battery.
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`35.
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`At no time prior to the Incident did Plaintiff have facts or information sufficient to
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`apprise him, actually or constructively, of the dangers posed by the defective condition of the
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`Subject Battery.
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`36.
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`At no time prior to the Incident did Plaintiff, upon having facts or information which not
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`only apprised him of the defective condition of the Subject Battery, but also imparted knowledge
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`and appreciation of the dangers posed thereby, then proceed to make use of the Subject Battery
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`in an unreasonable or unforeseeable manner.
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`37.
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`Plaintiff has suffered and will continue to suffer the effects of permanent scarring due to
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`the injuries sustained in the Incident, as well as severe physical pain and mental anguish because
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`of the injuries sustained in the Incident.
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`38.
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`As a result of the Incident, Plaintiff has incurred substantial medical bills totaling more
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`than $47,000.00.
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`39.
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`Upon information and belief, the Defendants in this case were aware, or should have been
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`aware, that Sony 18650 batteries, including the Subject Battery, were defective due to their
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`manufacture, construction, design, formulation; due to their inadequate warnings or instructions;
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`and/or due to being unit fit for either their ordinary and foreseeable purpose, or the particular
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`purpose for which they were purported to be sold.
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`10
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 11 of 25
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`CAUSES OF ACTION
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`COUNT ONE AS TO BOTH DEFENDANTS
`STRICT PRODUCTS LIABILITY
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`40.
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`Plaintiff re-alleges and incorporates by reference each and every allegation contained in
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`preceding paragraphs as though fully set forth herein.
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`41.
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`The Defendants in this case designed, manufactured, assembled, distributed, tested,
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`inspected, distributed and sold the Subject Battery.
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`42.
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`The Defendants manufactured, designed, assembled, distributed, tested, inspected,
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`distributed and sold the Subject Battery with actual or constructive knowledge that it would be
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`purchased and used by members the general public, such as Plaintiff.
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`43.
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`The Subject Battery was expected to and did reach Plaintiff without undergoing any
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`substantial changes or alterations.
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`44.
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`From the time the Subject Battery left the control of the Defendants until the time of the
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`Incident, it did not undergo any substantial changes or alterations.
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`45.
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`At the time it was produced, distributed and sold by the Defendants, the Subject Battery
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`was defective in its design, manufacture and/or warnings/information and was unreasonably
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`dangerous for its foreseeable uses, such as Plaintiff.
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`46.
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`At the time it was produced, distributed and sold by the Defendants, the Subject Battery
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`was defective in its manufacture and/or design for or more of the following reasons:
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`a. The Subject Battery deviated from its design specifications, formulas,
`and/or performance standards;
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`b. The Subject Battery was designed and manufactured without any form of
`internal temperature control or protection circuitry;
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`c. The Subject Battery failed to incorporate protection circuitry or to
`integrate other
`safety devices
`to protect
`against overcurrent,
`overtemperature, short circuit, or overload;
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`11
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 12 of 25
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`d. The Subject Battery was designed, manufactured and/or fabricated with
`materials that failed to resist and/or magnified the ordinary pressures
`stress, thermal stress, and fatigue stress;
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`e. The Subject Battery was designed, manufactured and/or fabricated using
`material or materials that caused or contributed to cause excessive thermal
`and pressure build up;
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`f. The Subject Battery was designed, manufactured and/or fabricated with
`inadequate ventilation which caused or contributed to unreasonable heat
`and pressure build up;
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`g. The Subject Battery was designed, manufactured and/or fabricated with a
`package or container that failed prevent short circuiting leading to rapid
`discharge, overheating, and catastrophic failure;
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`h. The Subject Battery was designed and sold without underdoing adequate
`testing, analysis, surveys or assessments to identify the unreasonable
`dangers described herein;
`
`i. The Subject Battery was designed in a manner such that it exposed
`individuals who purchased and used the product, including Plaintiff, to
`unreasonable risks of harm during foreseeable uses of the product,
`including the risks of fire, explosion, and/or burns from heat, fire or
`battery acid; and
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`j. In such other particulars as the evidence may show.
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`47.
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`The Defendants are also strictly liable as the Subject Battery was defective and
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`unreasonably dangerous due to information defects, inadequate warnings and/or instructions for
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`use because, inter alia:
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`a. Defendants knew, or in the exercise of reasonable care, should have
`known that there was a significant risk of energizing, explosion, fire, and
`burn injuries associated with the foreseeable use and/or storage of the
`Subject Battery, but failed to provide adequate warnings, labels or
`instructions related to that risk;
`
`b. Defendants knew, or in the exercise of reasonable care, should have
`known that the Subject Battery was designed in a manner such that it
`failed to resist and/or magnified the ordinary pressures stress, thermal
`stress, and fatigue stress, but failed to provide adequate warnings, labels or
`instructions related to that risk;
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`c. Defendants knew, or in the exercise of reasonable care, should have
`known that the Subject Battery was designed in a manner such that it
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`12
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 13 of 25
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`could cause or contribute to cause excessive thermal and pressure build
`up, but failed to provide adequate warnings, labels or instructions related
`to that risk;
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`d. Defendants knew, or in the exercise of reasonable care, should have
`known that the Subject Battery was designed in a manner whereby heat
`and energy could rapidly escape from the battery, but failed to provide
`adequate warnings, labels or instructions related to that risk;
`
`e. Defendants knew, or in the exercise of reasonable care, should have
`known that the Subject Battery was designed in a manner such that it
`could cause or contribute breaching of the exterior of the battery due to
`unreasonable heat and pressure, but failed to provide adequate warnings,
`labels or instructions related to that risk;
`
`f. Defendants knew, or in the exercise of reasonable care, should have
`known that the Subject Battery was designed in a manner such that it
`should not be stored in a pocket, and that short circuiting of the battery
`could lead to catastrophic failure, but failed to provide adequate warnings,
`labels or instructions related to that risk;
`
`g. Defendants knew, or in the exercise of reasonable care, should have
`known that its own personnel, its distributors and the end users and
`consumers of its Battery would not be aware of industry standards,
`instructions on proper use, and instructions on proper storage of Sony
`Battery, but failed to provide adequate warnings, labels or instructions
`related to that risk;
`
`h. Defendants knew, or in the exercise of reasonable care, should have
`known, that both its own personnel, its distributors and the end users and
`consumers of its Battery would not be aware of the dangers associated
`with the use and storage of Sony Battery, but failed to provide adequate
`warnings, labels or instructions related to that risk;
`
`i. Defendants failed to provide warnings or instructions that a manufacturer
`exercising reasonable care would have provided concerning the risk of
`energizing, explosion, fire, and burn injuries, in light of the anticipated,
`foreseeable and known uses and environments of use of Sony Battery, but
`failed to provide adequate warnings, labels or instructions related to that
`risk;
`
`j. Defendants failed to provide adequate warnings that a manufacturer
`exercising reasonable care would have provided concerning the risk of
`energizing, explosion, fire, and burn injuries associated with the storage of
`the Subject Battery but failed to provide adequate warnings, labels or
`instructions related to that risk;
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`13
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 14 of 25
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`k. Upon information and belief, Defendants failed to provide warnings or
`instructions that a manufacturer exercising reasonable care would have
`provided concerning the risk of energizing, explosion, fire, and burn
`injuries, in light of incident reports that some people had suffered burn
`injuries during anticipated, foreseeable, known and/or ordinary use of
`Sony Battery; and
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`l. Upon information and belief, Defendants failed to provide warnings that a
`manufacturer exercising reasonable care would have provided concerning
`the energizing, explosion, fire, and burn injuries associated with the use
`and/or storage of Sony Battery; and
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`m. In such other particulars as the evidence may show.
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`48.
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`The risk of Sony batteries energizing, exploding and/or catching fire when being used
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`and/or stored is not an open and obvious risk, nor is it a risk that is a matter of common
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`knowledge.
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`49.
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`Plaintiff did not know at the time of his use the Subject Battery, nor at any time prior
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`thereto, of the existence of the defects in the product.
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`50.
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`The unreasonable dangers associated with the foreseeable uses of the Subject Battery
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`exceed those that the ordinary user or consumer would anticipate, and the risk of harm stemming
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`from its manufacture could have been reduced or avoided entirely had the Subject Battery not
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`deviated from its design specifications, formulas, and/or performance standards.
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`51.
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`The unreasonable dangers associated with the uses of the Subject Battery outweighs its
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`utility, and the foreseeable risk of harm regarding its design could have been reduced or avoided
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`entirely by the incorporation of feasible, alternative designs.
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`52.
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`The unreasonable dangers associated with the uses of the Subject Battery outweigh its
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`utility, and the foreseeable risk of harm posed by it could have been reduced or avoided had
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`adequate warnings, instructions for use and information been provided with the product.
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`53.
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`As a direct and proximate result of the above-noted defect(s), the Subject Battery
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`energized, exploded and/or caught fire while in Plaintiff’s pocket.
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 15 of 25
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`54.
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`As a direct and proximate result of the above-noted defect(s) of the Subject Battery,
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`Plaintiff sustained debilitating
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`injuries, permanent scarring, medical expenses, economic
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`damages, loss of enjoyment of life, and past and future emotional and physical pain and
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`suffering.
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`WHEREFORE, Plaintiff demands judgment against Defendants for damages, together
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`with interest, costs of suit, attorneys’ fees, and all such other relief as the Court deems proper.
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`COUNT TWO AS TO BOTH DEFENDANTS
`NEGLIGENCE
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`Plaintiff re-alleges and incorporates by reference each and every allegation contained in
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`55.
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`preceding paragraphs as though fully set forth herein.
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`56.
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`The Subject Battery was expected to and did reach Plaintiff without undergoing any
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`substantial changes or alterations.
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`57.
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`From the time the Subject Battery left the control of Defendants until the time of the
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`Incident, it did not undergo any substantial changes or alterations.
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`58.
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`Defendants owed a duty to Plaintiff and other users of its products to exercise due care in
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`the design, manufacture, assembly, distribution, testing, inspection and sale of the Subject
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`Battery.
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`59.
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`Defendants were negligent, careless, and reckless in the sale of the Subject Battery and
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`breached duties owed to the Plaintiff for one or more of the following reasons:
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`a.
`
`
`b.
`
`
`c.
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`Manufacturing, assembling, distributing, testing, inspecting, and/or selling the
`Subject Battery although it deviated from its design specifications, formulas,
`and/or performance standards;
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`Designing, manufacturing, assembling, distributing, testing, inspecting, and/or
`selling the Subject Battery without any form of internal temperature control or
`protection circuitry;
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`Designing, manufacturing, assembling, distributing, testing, inspecting, and/or
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`
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`15
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`Case 1:20-cv-07873 Document 1 Filed 09/24/20 Page 16 of 25
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`selling the Subject Battery although it failed to incorporate protection circuitry or
`to integrate other safety devices to protect against overcurrent, overtemperature,
`short circuit, or overload;
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`Designing, manufacturing, assembling, distributing, testing, inspecting, and/or
`selling the Subject Battery with materials that failed to resist and/or magnified the
`ordinary pressures stress, thermal stress, and fatigue stress;
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`Designing, manufacturing, assembling, distributing, testing, inspecting, and/or
`selling the Subject Battery using material or materials that caused or contributed
`to cause excessive thermal and pressure build up;
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`Designing, manufacturing, assembling, distributing, testing, inspecting, and/or
`selling
`the Subject Battery with
`inadequate ventilation which caused or
`