Lithium-Ion Batteries:Tough to Make, Hard to Target in Court

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By Martina Barash

Oct. 12 — Much about the safety of lithium-ion batteries depends on the quality of the battery and the type of product it's in, attorneys and others say.

Lithium-ion batteries power a wide variety of consumer products, with good reason: They provide steady energy in a small package.

But they're subject to overheating—a problem that's resulted not only in the high-profile recall, and now halted production, of the Samsung Galaxy Note 7 smartphone, but in a number of fires and explosions in other consumer products.

They include computers, tablets, self-balancing scooters, electronic cigarettes, power tools and electric cars.

Pressures to increase battery life, and in some industries to reduce manufacturing speed and cost, have created weaknesses that can lead to short circuits and other causes of overheating, attorneys and industry representatives told Bloomberg BNA in recent interviews.

But manufacturing these batteries is a delicate matter where everything must go right and even a speck of dust in the battery can create potentially dangerous electrical arcing, said Kirk Hays of Koeller, Nebeker, Carlson, & Haluck LLP in Phoenix.

Hays represents a school allegedly damaged in a fire started by a faulty battery in a power tool. The battery was made by Samsung SDI, one of the suppliers for the Note 7.

Some battery makers go to great lengths to produce low-risk batteries, but others don't, according to the U.S. Fire Administration, the lead federal agency on fire research, and others.

Yet despite the variability, battery makers aren't often sued, according to a Bloomberg BNA analysis and attorneys.

Hoverboards, E-Cigs: Noteworthy

In some product types, battery packaging, product design and other factors contribute to the problems.

Much attention has been focused on the Note 7 smartphones. But battery issues also have plagued two other types of newer products: hoverboards and e-cigarettes.

Hoverboard production involved “the perfect storm,” Susan Young of the Power Tool Institute told Bloomberg BNA. The group is a trade association of major power-tool manufacturers.

There were no standards at all for the motorized scooters, in contrast to power tools, she said.

Hoverboards, a popular holiday gift in December 2015, were associated with 60 fires in 20 states before a major recall in July, the Consumer Product Safety Commission said at the time of the recall announcement (44 PSLR 702, 7/11/16).

And the number of serious incidents has run high for products like e-cigarettes.

“We get calls basically every day from people around the country” who have been injured by e-cigarettes, plaintiffs' attorney Gregory L. Bentley told Bloomberg BNA. Bentley, who is with Bentley & More LLP in Irvine, Calif., estimates he's spoken to “upwards of 130 or 140 different people over the last 6 or 7 months.”

Bentley tried the first e-cigarette personal injury case to go to verdict, which resulted in a $1.9 million award for his client, in October 2015, he said.

He said he's currently handling about 80 e-cigarette cases.

Litigation challenges for plaintiffs include jurisdictional issues, particularly when products are made in Asia, as well as problems of proof, which can also be affected by jurisdiction, Bentley and Hays said.

But everyone in the supply chain is a target in the e-cigarette suits, Bentley said. “These sellers and wholesalers should be aware their companies are exposed if they purchase these products without making sure they’re safe,” he said.

What Are They?

Batteries consist of terminals, called the anode and the cathode, and a medium that allows electrons to flow and provide energy when needed.

Many lithium-ion batteries are cylindrical, “made by winding alternating layers of metallic anode and cathode material separated by a porous film,” the U.S. Fire Administration said in an October 2014 report on e-cigarette fires and explosions. “The porous separator film holds a liquid electrolyte made of an organic solvent and dissolved lithium salts.”

These rolled battery components are housed in a sealed cylinder, the report said.

Some products use several cylindrical lithium-ion batteries contained in a battery pack.

Not all lithium-ion batteries are cylindrical, according to the USFA. Cellphones and tablets use flat batteries housed in a plastic pouch or case, the report said.

A lithium-ion battery can overheat because of “puncture, overcharge, external heat, short circuit or internal cell fault,” the report said.

Shorting

Some of the focus has been on short circuits. Bentley said a short-circuiting problem has affected both e-cigarettes and the Galaxy Note 7 phones. Samsung recalled the Note 7 in September and then discontinued the model Oct. 11 (see related story).

Bentley said he believes Samsung was “trying to maximize cell-phone use or operation time by what’s called deep-discharging the batteries.”

“Deep discharging causes dendrites”—metallic structures—“to grow inside the battery, causing the batteries to short-circuit,” he said. The short circuit ignites the electrolyte material, which is flammable and combustible, he said.

Samsung's own initial conclusion was that an error in production placed pressure on plates contained within battery cells (44 PSLR 991, 9/19/16). That brought the negative and positive poles into contact, the company said.

Dust

Hays said it's important that the bands of metal in the battery never touch. But dust introduced in the manufacturing process can create “a small degree of arcing,” he said. “That's OK as long as it's not above about 150 degrees Celsius or 300 degrees Farenheit,” he said. If the temperature exceeds that level, the result is a “thermal runaway,” a heating process that's impossible to stop, he said.

As the interior of the battery gets hotter and hotter, the insulation layer begins to vaporize and the built-up gas blows the top off, he said.

That can lead to a chain reaction within a battery pack, he said.

CPSC Chairman Elliot Kaye also pointed to a similar problem when a large hoverboard recall was announced in July. The scooters contain battery packs that group too many heat-generating batteries together and lack components to manage the heat, Kaye told Bloomberg BNA at the time.

The hoverboard problems resulted from “a rush to get something to market as cheaply as possible without regard to safety,” he said.

Punctures, Bare Batteries

Two Tesla Model S vehicles were involved in battery-related fires in 2013 after the cars ran over debris. But Tesla then added a titanium shield to strengthen the Model S battery pack (42 PSLR 762, 7/14/14).

And “unwrapped or damaged” e-cigarette batteries can short-circuit, sometimes in users' pockets, according to Gregory Conley, president of the American Vaping Association. The AVA is “an advocacy group that champions vapor products for smokers looking to quit,” not a trade association, according to Conley.

“Whether it's the batteries intended for use in a flashlight or a vapor product, carrying batteries unprotected is a terrible idea,” Conley told Bloomberg BNA in an e-mail.

Yet, he said, “I do believe there is a baseline risk for lithium ion batteries where, with current technology, there is no way to guarantee absolutely 100 percent safety.”

Solutions?

To Bentley, the solutions aren't remote.

“What Samsung has apparently attempted to do to correct the problem as a partial fix is they sent out a software update that limits how low the battery can be discharged,” he said. “It’s the same problem with the e-cigarette batteries.”

For e-cigarettes, “it’s an easy fix,” he said. “It’s a circuitry issue, that they just need to stop the overcharging and over-deep-discharging of the battery.”

Bentley also urges regulation. “The e-cigarette industry is still unregulated,” he said. “The FDA is trying to regulate the industry, but there has been a tremendous amount of pushback.”

Michael Felberbaum, a spokesman for the Food and Drug Administration, said in an e-mail that the agency's new premarket review process will include scrutiny of the electronics in e-cigarettes.

The agency will recommend that companies' applications for premarket approval include “amperage, voltage, wattage, battery type (chemistry), whether the battery is consumer-replaceable, testing certificates for any voluntary battery standards for the power supply, and under- or over-voltage lock-out protections,” he said.

The instructions, when finalized, would also recommend that vaping companies specify how they would address the chance of “use and foreseeable misuse leading to overheating, fire, and explosion,” including during transportation, storage and charging, he said.

How Bad Is It?

As far as e-cigarettes are concerned, the sheer volume of incidents is noteworthy, as indicated by the calls about e-cigarette injuries that Bentley gets almost daily.

FDA scientists identified a total of 134 reports of overheating incidents, fires and explosions from 2009 into early 2016, a number that is likely an underestimate, according to Felberbaum.

Vaping advocate Conley, however, said that “vapor products pose no more of a fire risk than cellphones and laptops” when charged, stored and used properly.

A trade association of major rechargeable-battery manufacturers, called PRBA—The Rechargeable Battery Association, highlighted differences among lithium-ion batteries.

A key difference is “between lithium ion batteries manufactured by reputable, major international manufacturers and smaller companies often based in China,” a PRBA spokesman told Bloomberg BNA in an e-mail.

“Major manufacturers and PRBA members use very sophisticated equipment to manufacture cells and batteries,” the spokesman said. “Typically, these companies X-ray every single cell they manufacture.”

“Smaller manufacturers in Asia are not all as sophisticated,” he said.

One expert estimated flaws in just “roughly one in 10 million lithium batteries” made by major companies, the spokesman said.

Bentley said, as to e-cigarettes, “The batteries that exploded in the suits we’re handling were all manufactured in China.”

“There’s no regulation in place for testing or for safety protocols in regards to the battery or any of its component parts and then they’re just placed on the shelves at these typically mom-and-pop shops,” Bentley said.

The volume of e-cigarette incidents is due to “the very low quality of battery used in some of those products,” the PRBA spokesman said.

Product design and manufacture matters too, Young, of the Power Tool Institute, said. “There are some things major manufacturers do so they don't have these problems,” she said.

Product design, including the way the cell is integrated into the product, makes the biggest difference, she said. And certification to UL or similar standards is important as well, she said.

“It's not the lithium-ion battery per se,” she said.

Power tools were subject to some high-profile recalls, but those appear to have been in the 2007-2008 time frame (36 PSLR 855, 9/8/08) (35 PSLR 665, 7/16/07) .

“We clearly do not have the types of problems these other industries have,” Young said, referring to hoverboards in particular.

And that's despite the fact that cordless-tool sales are “ the area of growth,” currently exceeding corded-tool sales, Young said.

The cylindrical structure of e-cigarettes, with weakness at the ends, makes them more susceptible to explosive, rocket-like failure when the cylindrical battery inside ruptures, according to the USFA.

Cylindrical batteries in laptops and power tools are housed in strong plastic cases that prevent “rocketing,” the agency said.

Suing Battery Makers

Tracking down the origin of problem batteries can be difficult. Bentley again points out the challenges related to e-cigarettes.

After the plaintiff identifies the retailer, the challenge becomes finding the wholesaler, distributor and manufacturer, he said.

Bentley said he doesn't know of any suits against battery makers.

“In California, and frankly in most states, it’s very difficult if not next to impossible to get jurisdiction over a Chinese company,” he said. “So in California we’re not suing the Chinese manufacturers.”

Product liability suits against battery makers appear to be rare, according to a Bloomberg BNA analysis. A five-year scan of litigation against South Korea-based Samsung SDI, for example, one of the suppliers for the Note 7 smartphones and a major lithium-ion battery maker, yielded just four property-damage cases and two personal-injury cases.

In one of the personal-injury cases, Hope v. Hewlett-Packard Co., E.D. Mich., No. 4:14-cv-11497, 4/14/14 , the court granted Samsung SDI's motion for summary judgment on grounds that there wasn't any evidence of a defect in the laptop batteries at issue.

And most product liability suits involving lithium-ion batteries that were filed within the last six months are over e-cigarettes, an area where, Bentley said, battery makers aren't sued.

Another reason relatively few suits target battery makers may be the “component parts doctrine.” The doctrine is a legal principle in some states that provides a defense to a component supplier for injury caused by a finished product into which the component parts were integrated.

Jurisdictional twists and turns have affected a suit by Hays's client, a trust associated with an Arizona school district, over a power tool that allegedly caused a fire in a school at night, while it was charging ( Ariz. Sch. Risk Retention Trust, Inc. v. NMTC, Inc., D. Ariz., No.3:14-cv-08009, 3/15/16 ) (44 PSLR 289, 3/21/16).

There were no injuries in the incident, according to Hays.

The Taiwanese maker of the tool, battery pack and charger isn't subject to personal jurisdiction in Arizona, the U.S. District Court for the District of Arizona concluded in March. The court described the battery-powered tool as a drill, but Hays said it was a screwdriver.

The court allowed the plaintiff to name the battery maker, Samsung SDI, as a defendant, which it did. The U.S. importer and distributor are also defendants and remain in the suit.

“There are challenges with bringing direct suits” against battery makers, Hays said—particularly getting them into U.S. courts.

The jurisdictional hurdles affect access to evidence too, he said. He's had trouble getting information from the Taiwanese company, such as what regulations were in effect at the time, he said. “That slows everything down,” because the questions have to go through the Taiwanese courts, he said.

Taiwan isn't a member of the Hague Convention, he said.

To contact the reporter on this story: Martina S. Barash in Washington at mbarash@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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