The Nebraska Supreme Court heard arguments Wednesday in a case about an exploding e-cigarette battery — bought at a Lincoln truck stop — that injured an over-the-road truck driver in Pennsylvania.
But the issue at play wasn’t whether the lithium ion rechargeable batteries exploded in John Griffith II’s pants pocket, causing him serious burns.
The question was whether Lancaster County was the proper place for him to file the lawsuit against LG Chem Ltd., LG Chem America Inc., Shoemaker’s Shell Travel Center and E-Titan LLC.
Or if Griffith should have filed it elsewhere, like Pennsylvania where he was injured, or Delaware, where the corporation responsible for distribution of the batteries made in South Korea to U.S. stores is based. Or in Atlanta, Georgia, it’s principal place of business.
Last year, a Lincoln judge dismissed the case over jurisdiction issues, prompting Griffith’s appeal.
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On Wednesday, his attorney, Christopher Welsh, told Supreme Court justices Griffith had been passing through Nebraska on Nov. 6, 2015, when he stopped at Shoemaker’s in Lincoln and bought two lithium ion batteries (manufactured by LG Chem) on an e-cigarette kiosk inside the convenience store.
On March 12, 2016, he had the batteries in his pocket at his home, they made contact with each other, and there was an explosion that caused severe burns to Griffith’s body, Welsh said.
He said the defendants want the court to believe the case should’ve been filed in Pennsylvania, because that’s where Griffith was injured. But, the attorney argued, it could’ve happened anywhere: in the truck stop or while he was driving down the road.
“It just so happens it happened in Pennsylvania,” Welsh said.
He said if they’d sued there, the two Nebraska defendants (Shoemaker’s and E-Titan) would’ve filed motions to dismiss, saying they don’t do any business in Pennsylvania.
Welsh said but for the batteries being put on E-Titan’s kiosk at the Nebraska convenience store, this wouldn’t have happened.
“This whole thing started in Nebraska,” he said.
The other side said it had more to do with the time limit to file the case. In Nebraska they had four years. In Pennsylvania they had two, which had passed by the time they filed the case in 2019.
In 2020, a Lancaster County District Judge dismissed Shoemaker’s and E-Titan because neither had any role in the design or manufacture of the batteries.
And in a decision last year, the judge dismissed LG Chem America Inc. and LG Chem Ltd., over jurisdiction issues and lack of service.
On Wednesday, attorney Mark Fahleson, who represents LG Chem America, which rented warehouse space in Lincoln, said jurisdiction simply doesn’t exist in this case.
“LG Chem America doesn’t manufacture anything,” he said. “What it does is it’s engaged in sales and distribution of petrochemical products, such as rubber.”
Fahleson said it has no employees in Nebraska, and has never sold or distributed the lithium ion cells in Nebraska. It’s never done any business with Shoemaker’s or E-Titan, he said.
While he admitted the company has sold these products in Texas and Illinois, Fahleson said it hasn’t in the state of Nebraska.
“There’s no evidence in the record, not a single scintilla of evidence to demonstrate any sales by LG Chem America or LG Chem, frankly, in the state of Nebraska,” he said.
To which Chief Justice Mike Heavican asked: “So your argument is the record doesn’t show where the battery came from?”
“That is correct,” Fahleson said.
Justice Stefanie Stacy got to the point, asking if the business had been structured to avoid personal jurisdiction in any state.
Fahleson said he had no information regarding the structuring.
Justice Lindsey Miller-Lerman asked if any courts have found jurisdiction in the number of similar cases around the country in which LG Chem America is being sued.
Fahleson said the vast majority found no jurisdiction, aside from a Texas case earlier this year.
The court took the case under advisement.
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