A Chinese e-cigarette maker has removed to federal court a suit alleging that the battery in one of its products exploded just days before the trial was set to start in Texas state court, according to Mike Curley, writing for Law360. The removal was filed on Feb. 21 with the trial slated to begin Feb. 24.
Shenzhen IVPS Technology Co. Ltd. filed a notice of removal for the case filed by Michael Herrera, telling the court that it believed Herrera was not intending to present evidence against the Texas-based retail co-defendants named in the suit and therefore there was diversity jurisdiction warranting removal.
“When a defendant removes the case after a jury has been sworn in, that kind of tells you everything you need to know,” said William R. Ogden of Farrar & Ball LLP, who represents Herrera. “They were scrambling.”
In the case, initially filed in October 2023, Herrera said he was using an electronic cigarette made by Shenzhen and distributed by TheSY LLC, and included with the purchase a Sony lithium-ion battery bought from PDK Smoke ‘N Vape LLC and imported by Toro Imports. While Herrera was using the device, he said, it exploded and caused severe burns to his eye and face. TheSY has since been dismissed from the suit.
In its notice of removal, Curley wrote, “Shenzhen said based on Herrera’s trial witness list and other factors, ‘it is abundantly clear that [the] Plaintiff does not intend to put up any evidence against PDK Smoke or Toro Imports at trial scheduled to start next week.’”
Ogden said he expects the federal court to remand the case to the Harris County District Court.