Case Number: BC612777 Hearing Date: January 28, 2019 Dept: O

Defendant LG Chem, Ltd.’s motion for summary judgment is DENIED.

Defendant LG Chem, Ltd. (“defendant”) moves for summary judgment pursuant to CCP 437c.

As an initial matter, defendant’s evidentiary objection number 1 is sustained and remaining objections are overruled.

The Complaint, filed March 7, 2016, alleges that on January 17, 2016, plaintiff was sitting at a bar in the Venetian Hotel when his e-cigarette, containing a lithium-ion battery that was in the front left pocket of his shorts exploded and burst into flames, causing injury. The Complaint asserts causes of action for:

Strict Products Liability

Negligent Products Liability

Loss of Consortium

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP § 437c(p)(2).)

Defendant contends it did not design, manufacture, or distribute the battery at issue and submitted the following evidence:

Plaintiff alleges a brown-wrapped 18650 lithium-ion battery cell (“Subject Battery”) exploded in his pocket. (See Defense Separate Statement (“DSS”) 1-2.)

The Subject Battery is allegedly LGC’s model “HG2” battery, as it is the only brown-wrapped battery which LGC manufactures. (See DSS 5.)

Defense expert Troy Haynes inspected the Subject Battery and a Computer Tomography (“CT”) imaging revealed the Subject Battery contains a 3×6 embossment pattern. (See DSS 13.)

Defendant does not manufacture any 18650 lithium-ion battery cells that have two negative nickel tabs and a 3×6 “tab-to-can” embossment pattern. (See DSS 14.)

All LGC HG2 18650 battery cells have a “signature” 4×6 “tab-to-can” dotted embossment pattern welded onto the inner nickel tab. (See DSS 11-16.)

The Court finds defendant has met its initial burden of production, establishing that LGC was not the designer, manufacturer or distributor of the Subject Battery, and therefore not liable for products liability.

In opposition, plaintiffs submit their expert’s declaration, attesting that he has seen “numerous LG HG2 batteries with offset patterns… and the pattern on the subject battery is simply offset enough to have the fourth row of embossment nearly entirely miss the tab.” (See Declaration of Glen Stevick (“Stevick Decl.”) ¶ 12.) With respect to the Subject Battery, Doctor Stevick notes that “the fourth row does not completely miss the tab, but instead has left a series of perfectly spaced marks indicating its presence.” (Id. ¶ 12; Exhibit (“Exh.”) 6.) “The spacing of the square pattern, along with every other geometric feature still present regarding the negative tabs, match those of the LG HG2 design. Thus, it is impossible to state that the subject battery is not an LG HG2.” (Id. ¶ 12.)

This Court finds that plaintiffs have produced evidence, creating a triable issue as to whether the plaintiff’s photograph depicts a fourth row of embossing that may belong to defendant.

The motion is DENIED.