Vape shops and other retailers are often sued in product liability claims arising from the overheating or combustion of electronic cigarettes, vaporizers, vape pens, and other electronic nicotine delivery systems (ENDS or e-cigs) and their component parts. If vape shops cannot provide evidence that they did not sell the product at issue to the plaintiff, they may be stuck defending what can be a lengthy and expensive lawsuit and potentially face a judgment. Accordingly, it is important for vape shops to keep detailed and accurate sales records. This client alert provides a good example of a case where a vape shop's records convinced a jury that it did not sell the subject products to the plaintiff.
In Erick Gonzalez v. The Vapor Trail, the California Court of Appeals rejected the plaintiff's attempt to overturn the jury verdict finding a vape shop was not liable for the plaintiff's injuries. In this case the plaintiff was injured when his vaping device exploded while he was using it. He was hospitalized and placed into a two-week induced coma. The plaintiff filed suit in San Diego County, California, against the manufacturers of the component parts of the device at issue, as well as the retail vape shop that he claimed sold him the products at issue, Vapor Trail. The plaintiff asserted various product liability claims against the defendants. At the time of trial, Vapor Trail was the only remaining defendant.
At trial, the plaintiff insisted he purchased all of his vaping supplies from Vapor Trail and specifically denied ever shopping online or at another nearby vape shop, Sun Vape. The main product at issue, a Ragnarok mod, was sold by only one company, and that company sold mods to only two vape shops in San Diego County, Vapor Trail and Sun Vape. The plaintiff testified he bought the Ragnarok mod with cash and did not keep a receipt.
Vapor Trail's owner testified that Vapor Trail did not sell the subject Ragnarok mod to the plaintiff for a few reasons. First, while the owner and his employees recognized the plaintiff as a regular customer, they did not recall selling him a Ragnarok mod. Additionally, Vapor Trail's bookkeeping software showed several transactions with the plaintiff, but none included a Ragnarok mod. Importantly, Vapor Trail tracked sales of cash purchases, including the purchaser, though they would occasionally log cash sales as an "unknown customer" if they were busy. During the relevant time period, Vapor Trail had records of four Ragnarok mods sold to "unknown customers." However, those sales also contained other items that the plaintiff did not claim to have purchased. Vapor Trail also had a forensic accountant review its sales records and testify there was no evidence the plaintiff purchased the mod from Vapor Trail. Finally, photographs of the plaintiff's device after the incident showed that the coils in the device were larger than any that Vapor Trail sold. After deliberating less than one hour, the jury reached a defense verdict.
The plaintiff appealed, contending that (i) the trial court erred by excluding as hearsay testimony that would have shown Vapor Trail was the only retailer that sold the Ragnarok mod, (ii) "the judge's hostility and bias" toward the plaintiff required a new trial, and (iii) substantial evidence did not support the defense verdict. The appellate court rejected the plaintiff's arguments. While the company that supplied Ragnarok mods to the vape shops testified that, based on their sales records, they did not sell any Ragnarok mods to Sun Vape during the relevant time period, given that the sales records were not admitted into evidence, the court excluded the testimony as hearsay. The appellate court also found that the claims of judicial bias were unfounded. Finally, the court determined that substantial evidence supported the verdict, emphasizing that Vapor Trail did not have the burden to prove it did not sell the mod – rather, the plaintiff had the burden to prove Vapor Trail did sell it, which he did not satisfy.
Had Vapor Trail failed to keep detailed sales records, it could potentially have been held responsible for the plaintiff's injuries related to a product that it did not even sell. Vape shops and other retailers, as well as entities further up the distribution chain, should diligently track all of their sales, including cash sales, so they can determine whether they sold products in the event they are sued.
For more information about how to best protect your business and/or current or pending litigation, please contact one of the attorneys on MMM's E-Cigarette/Vape Team.
