A man in Texas, the United States, filed a lawsuit for injuries caused by a vape explosion in 2020 and added the device manufacturer Shenzhen Avipus as a defendant in 2022. The plaintiff demanded that the case be moved back from the federal court to the state court, emphasizing that the litigation strategy was reasonable and intended to hold all sales and distribution links accountable.
Key points:
1. In March 2020, a man in Texas, the United States, was injured in a vape explosion and sued multiple responsible parties, including the Chinese manufacturer Shenzhen IVPS.
2. According to the revised indictment of the state court, the SMOK X-PRIV 225W used counterfeit SONY batteries.
3. Shenzhen IVPS demanded that the case be transferred from the state court to the federal court, claiming that the plaintiff maliciously added a local company as a defendant to circumvent federal jurisdiction.
4. The plaintiff denied the accusation of “malice” and emphasized that it would continue to advance its claims against all the defendants.
Progress in dispute over SMOK vapes that exploded in the U.S. five years ago
According to a report by Law360 on April 16th, a man in Texas, the United States, has requested a federal court to move his lawsuit against vape manufacturers, distributors and retailers back to the state court, refuting the defendant’s accusation that he “maliciously” evaded federal jurisdiction.
In the opposition motion filed in the federal court, the plaintiff of the case, Michael Herrera, pointed out that he did intend to advance the claim against all local defendants and emphasized that there is currently no evidence suggesting that he had malicious intentions to list local companies in Texas as defendants. Only to avoid the case being transferred to the federal court by the involved Chinese manufacturer. Shenzhen IVPS Technology Co., Ltd.
Plaintiffs Oppose Removal to Federal Court, Asserting State Law Jurisdiction
Herrera suffered second and third-degree chemical burns to his hands and eyes on March 2, 2020, due to an explosion while using the SMOK X-PRIV 225W vape. According to its revised indictment in the state court, the device used counterfeit SONY batteries. Herrera filed a lawsuit in 2021, initially naming the online retailer TheSY LLC and the distributor Toro Imports as defendants, and simultaneously suing PDK Smoke ‘n Vape LLC, which sells batteries. In 2022, he added the equipment manufacturer Shenzhen IVPS as a defendant.
According to court records, one week before the trial originally scheduled to begin at the Harris County District Court, Shenzhen IVPS applied to transfer the case to the federal court because the plaintiffs did not present substantive evidence in the trial preparations to assert liability against PDK Smoke or Toro Imports.
Plaintiffs deny allegations of “malice”
In its transfer application on February 21st. Shenzhen IVPS pointed out that Herrla did not include the actual purchaser of the equipment, Patrick Chachere, in the list of witnesses, nor did it conduct formal cross-examination or request documents for PDK or Toro. Furthermore, the draft jury instructions it submitted did not mention PDK either, which might prevent the jury from making a liability determination against the retailer.
The company thus believes that Herrera actually mainly targeted its company in the lawsuit, and the inclusion in PDK and Toro was merely a strategic retention of the jurisdiction of the state court.
Herrera denied this in the opposition document, stating that the PDK not being included in the judgment form was a technical omission and had been “immediately corrected”. The witness, Chacherei, has been listed as a witness by the defendant and will be automatically 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 choosing some of the subjects for cross-examination is a conventional trial strategy.
