Retailer Liability for Exploding Vapes – Lessons Learned From Gonzalez v. The Vapor Trail

November 9, 2020 – Article

Retail vape and smoke shops are frequent targets and can be particularly vulnerable in litigation arising from exploding electronic nicotine delivery devices (ENDS) and marijuana vaping devices. Why? It is well established in the United States that retailers of defective products can be liable for injuries arising from their use. See e.g., Godoy v. Abamaster of Miami, Inc., 754 N.Y.S.2d 301 (2nd Dep’t 2003) (“In strict products liability…a retailer who sells a product in a defective condition is liable for injury which results from the use of the product”). However, what puts retailers at particular risk when it comes to ENDS and other vaping devices, is that frequently the product manufacturers and distributors are foreign entities, often located in China, on which it can be difficult for Plaintiff’s attorneys to serve and conduct discovery. By comparison, a local vape or smoke shop might be seen as a much easier target, and can be left holding the bag, even where a foreign manufacturer and distributor are named defendants in the suit and actually bear the bulk of the liability. This is especially concerning in those states that have pure joint and several liability (e.g. Massachusetts) where one defendant can be on the hook for an entire judgment.

Gonzalez v. The Vapor Trail, Cal. Court of Appeals, 4th Appellate Dist., 1st Div. 2020, a recent California case ending in a defense verdict, nicely illustrates one of the main issues defendant retailers should pay attention to when faced with these kinds of actions – proof of sale (or of non-sale!)[1]

Plaintiff Gonzalez filed a products liability action against vape shop defendant The Vapor Trail (“Vapor Trail”), as well as several other defendants, after suffering injuries from an exploding e-cigarette. The product at issue was a “Ragnarok” vape “mod,” which essentially is a copper tube which houses the other components. Gonzalez claimed he had purchased the device at issue from Vapor Trail with cash and that he did not have a receipt. He further claimed that he was a regular customer at Vapor Trail, purchased all of his vaping supplies there, and denied shopping at a nearby competing vape shop or online. Testimony from Ragnarok’s manufacturer, VLS, showed that VLS indeed sold similar devices to Vapor Trail, though VLS’s representative could not confirm or deny that VLS had sold the specific device at issue to Vapor Trail. Vapor Trail’s owner also confirmed that he had purchased Ragnorok mods from VLS.

Notwithstanding the above, Vapor Trail contended that it did not sell the device at issue to Gonzalez. First, Vapor Trail’s owner testified that although he recognized Gonzalez, he had no recollection of selling him the Ragnarok mod. He further conferred with Vapor Trail’s employees who also had no recollection of selling the mod to Gonzalez. Second, Vapor Trail’s transaction software showed several transactions with Gonzalez, but none for the device at issue. Next, photographs showed that the device included a component part not sold by Vapor Trail. Lastly, evidence showed that other stores in the area also sold Ragnorok mods. Aside from Vapor Trail’s employees’ testimony, a forensic accountant reviewed Vapor Trail’s transaction history and determined that Vapor Trail did not sell the product at issue. Specifically, the expert noted that there were no major issues with the transaction software and additionally that there were no records for the sale of any of the other products Gonzalez claimed he purchased along with the Ragnarok.

After just one hour of deliberation, the jury determined that Vapor Trail had not sold the Ragnarok to Gonzalez and that Vapor Trail earned a defense verdict. Of course, it is axiomatic in any product liability action that “identification of the exact defendant whose product injured the plaintiff is, of course, generally required.” Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 504 (1989). By defending this first crucial element, Vapor Trail was able to protect itself from liability and earn a nice defense verdict.

Lessons learned? For retailers, keep track of your sales and your customers. Had Vapor Trail not been diligent it would have been stuck with liability for a product it did not even sell. For attorneys, remember it is the Plaintiff’s burden to prove the sale of the product in the first place. Where a product sale is in dispute, use the tools and evidence available to you. If you can disprove product sale, you could have a greater chance of victory than you might think.

Authors: Edward P. Abbot (Partner-in-Charge, New York), David E. Freed (Associate, New York)

[1] See Hawkins Parnell & Young’s companion article on this case diving into the components of an electronic cigarette and product modification. Available at https://www.hpylaw.com/publications/exploding-vaporizers-has-the-product-been-modified/.