5-Year-Old SMOK Vape Explosion Case: Plaintiffs Resist Federal Move, Demand State Court Jurisdiction

Key Points:

In March 2020, a man in Texas was injured in an e-cigarette explosion and filed a lawsuit against multiple parties, including the Chinese manufacturer Shenzhen IVPS. According to a revised complaint filed in state court, the SMOK X-PRIV 225W used counterfeit Sony batteries. Shenzhen IVPS has requested that the case be transferred from state court to federal court, alleging that the plaintiff maliciously added local companies as defendants to avoid federal jurisdiction. The plaintiff denies the "malicious" accusation and emphasizes that they will continue to pursue their claims against all defendants. According to Law360 on April 16, a man in Texas has requested federal court to move his lawsuit against e-cigarette manufacturers, distributors, and retailers back to state court, refuting the defendants' claims of "maliciously" avoiding federal jurisdiction.

The plaintiff, Michael Herrera, stated in his opposition motion filed in federal court that he does intend to pursue claims against all local defendants, emphasizing that there is currently no evidence suggesting malicious intent in listing Texas-based companies as defendants, but rather to avoid having the case against the involved Chinese manufacturer, Shenzhen IVPS Technology Co. Ltd., transferred to federal court.

Herrera suffered second and third-degree chemical burns to his hand and eye on March 2, 2020, when his SMOK X-PRIV 225W e-cigarette exploded. According to the amended complaint filed in state court, the device used counterfeit Sony batteries. In 2021, Herrera filed a lawsuit naming online retailer TheSY LLC and distributor Toro Imports as defendants, along with battery seller PDK Smoke 'N Vape LLC. In 2022, he added device manufacturer Shenzhen IVPS to the lawsuit.

According to court records, one week before the trial scheduled to begin in Harris County District Court, Shenzhen IVPS applied to transfer the case to federal court, citing the reason that the plaintiff had not presented substantial evidence of liability for PDK Smoke or Toro Imports in the trial preparation.

Shenzhen IVPS stated in its motion for transfer on February 21 that Herrera did not list Patrick Chachere, the actual purchaser of the equipment, as a witness, nor did he formally cross-examine or request documents from PDK or Toro. Additionally, the draft jury instructions submitted by Herrera did not mention PDK, potentially preventing the jury from making a liability determination against the retailer.

The company believes that the lawsuit is primarily targeting their company, with PDK and Toro being strategically included to maintain jurisdiction in the state court.

Herrera denied the allegations in the document, stating that PDK was not included in the judgment form due to a technical oversight, which has been "immediately corrected"; while witness Chakire has been listed as a witness by the defendant, and will automatically be included in the plaintiff's list according to the rules. He further pointed out that there is no legal requirement to cross-examine all defendants, and selecting some defendants for cross-examination is a common trial strategy.