Moore v. Richmen Enters., LLC

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal

authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule

30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-509

Filed 7 January 2026

New Hanover County, No. 20CVS002997-640

WELDON MOORE, Plaintiff,

v.

RICHMEN ENTERPRISES, LLC d/b/a DARTH VAPOR; JOYETECH USA, INC.;

and MIDWEST GOODS, INC., Defendants.

Appeal by Defendant Midwest Goods, Inc. from judgment entered 19 April

2023 and orders entered 27 July 2023 and 15 March 2023 by Judge G. Frank Jones

in New Hanover County Superior Court. Heard in the Court of Appeals 30 January

2025.

Poisson, Poisson, & Bower, PLLC, by Attorneys Frederick Davis Poisson III and

E. Stewart Poisson, for the plaintiff-appellee.

Richardson Thomas, LLC, by Attorney Grace Babcock, for the plaintiff-

appellee.

Hedrick, Gardner, Kincheloe & Garofalo, LLP, by Attorneys M. Duane Jones

and Elizabeth H. Bennett, for the defendant-appellant Midwest Goods, Inc.

Bowman & Brooke LLP, by Attorney Trevor W. Carolan, pro hac vice, for the

defendant-appellant Midwest Goods, Inc.

STADING, Judge.

Midwest Goods, Inc. (“Midwest”) appeals from final judgment entered upon a

MOORE V. RICHMEN ENTERS., LLC

Opinion of the Court

jury verdict finding it jointly and severally liable to Weldon Moore (“Plaintiff”) for the

injuries he sustained when a lithium-ion battery exploded in his pants pocket.

Midwest also appeals from the trial court’s orders that denied its Rule 59 motion for

a new trial, Rule 50 motion for judgment notwithstanding the verdict, and Rule 42

motion to bifurcate. See N.C. Gen. Stat. §§ 1A-1, Rules 42, 50, 59 (2023). On appeal,

Midwest asserts the trial court erroneously denied its motion to bifurcate, its directed

verdict motions, and its motion for judgment notwithstanding the verdict for several

reasons. After careful consideration, we affirm.

I. Factual and Procedural Background

This case deals with the liability of a wholesale supplier of vaping products

after a consumer sustained injuries from one of its products that entered the stream

of commerce. The record tends to show that Midwest, a wholesaler, supplied

rechargeable 18650 lithium-ion batteries to a retailer of vaping products in

Wilmington—Richmen Enterprises, LLC d/b/a Darth Vapor (“Darth Vapor”). Darth

Vapor sold one of those batteries to Plaintiff, who used it in his Joyetech electronic

cigarette for the purposes of vaping. While on a job site one morning, Plaintiff alleged

the battery exploded in his pants pocket, causing third-degree burns to his legs. As

a result, Plaintiff filed a complaint1 against Midwest, Darth Vapor, and Joyetech

1 Plaintiff’s complaint also asserted causes of action against Ex MV, LLC; MadVapes Franchising,

LLC; and AMV Holdings, LLC. However, “Plaintiff previously settled with” these parties.

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USA, Inc.2 (collectively, “Defendants”) grounded in negligence and product liability.

Plaintiff also asserted that Darth Vapor breached the implied warranties of

merchantability and fitness for a particular purpose.

At the outset, Defendants moved the trial court to bifurcate the liability and

damages phases of the trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 42(b)(3) (2023).

Midwest argued it was entitled to have separate trials on those issues and to exclude

evidence of compensatory damages. The trial court denied the motion, reasoning that

Midwest had “not stipulated that plaintiff was injured as a direct and proximate

result of defendant’s alleged negligence.” The trial court further reasoned that: “a

single proceeding promotes judicial economy and efficiency by eliminating duplicative

witnesses, and redundant procedures”; bifurcation would cause “increased scheduling

burdens . . . as well as the likelihood of increased expense to taxpayers”; bifurcation

was unnecessary since there were no cross-claims or counterclaims; bifurcation could

confuse the jury and prejudice Plaintiff; bifurcation would cause difficulties with

respect to jury selection; bifurcation was unnecessary since “the issues of liability and

damages [were] sufficiently interwoven”; and bifurcation was unnecessary since

Plaintiff solely sought “non-economic damages.”

Plaintiff’s jury trial commenced on 13 March 2023, in which he testified to

having purchased a green 18650 rechargeable lithium-ion battery from Darth Vapor

2 Neither Darth Vapor nor Joyetech USA, Inc. appealed from the trial court’s judgment or orders.

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on 5 February 2019. Plaintiff recalled that upon entering Darth Vapor, he showed a

salesperson his electronic cigarette and requested a replacement battery. The

salesperson returned with an unpackaged battery, which Plaintiff purchased.

Plaintiff testified that the battery was green and did not indicate a specific

manufacturer’s name. Plaintiff added that based on this interaction with the

salesperson, he believed the battery would be compatible with his device. Several

months before purchasing this battery from Darth Vapor, Plaintiff testified to

purchasing a green Samsung 18650 lithium-ion battery from MadVapes—another

retailer of vaping products in Wilmington. The receipt for the battery from MadVapes

confirmed it was a Samsung battery purchased on 20 October 2018.

On 12 April 2019, Plaintiff was working as an electrician’s assistant on a job

site. Plaintiff testified that while walking towards his toolbox, his electronic cigarette

and accompanying battery exploded in his cargo pants pocket, causing his leg to catch

fire. At the time of the explosion, Plaintiff had two batteries on his person—the green

battery from Darth Vapor and a brown “backup battery.” Plaintiff, however, noted

that he “kept the green battery in the device,” and that “the brown battery was [his]

backup battery to where, if [he is] on the job, and [he] can’t charge [the green battery],

[he] can always go and grab that battery.” Plaintiff testified that he was certain the

unlabeled green battery he purchased from Darth Vapor was in the electronic

cigarette at the time it exploded rather than the brown battery or the green Samsung

battery:

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Q. Okay. Now, you’ve testified for this jury that the green

battery that blew up on you in April of 2019 you purchased

from Darth Vapor?

A. Yes.

....

A. Because it was . . . a new battery. And it was closest to

the time of the explosion, the green battery. And then, also,

we found out that . . . the battery that exploded wasn’t a . . .

Samsung. It was another kind. So the battery I bought

from MadVapes . . . was a Samsung. But from the test

results, it said the battery wasn’t a Samsung, the green

battery that exploded.

David Rondinone testified as an expert witness in mechanical engineering at

trial. Mr. Rondinone opined that 18650 lithium-ion batteries are not safe for use in

vaping devices because the battery is “physically and electrically unprotected.” Mr.

Rondinone reasoned that using an 18650 lithium-ion battery in a vaping device can

cause “thermal runaway,” and that these types of batteries are ordinarily used for

devices that use “battery packs” such as power tools:

A. . . . A battery of this design, which is the same across all

18650s that I’ve ever seen -- and I don’t know how many

hundreds I’ve seen of them in this stage -- you have positive

in the middle and you have negative on the edge. And the

distance between the raised positive center and the raised

negative rim is only a few millimeters; it’s very, very close.

And to short a battery like this, all you need to do is remove

the wrapper -- and then, the washer will just push out of

the way -- and then, get anything that conducts electricity

-- piece of metal, a coin, a key. And it just has to span from

the middle to the edge. It’s got just to be just a few-

millimeter span.

And if it does that and it touches them both at the same

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time, then the battery can experience a thermal runaway,

which is basically -- it behaves like a firecracker. It starts

to eject very hot contents, which are essentially on fire. And

it’s what we call the battery explosion.

....

Q. And typically, what is the design application that the

major manufacturers intended these batteries to be used

for?

A. Yeah. They’re very, very clear about this. The . . . major

manufacturers intend these batteries to be used for battery

packs: an assembly of batteries put together inside a

physically protected casing of some sort, with an electronic

circuit to also protect the batteries. A good example of this

would be power tools. If you’ve ever used a cordless drill or

a cordless saw – I’ve taken apart a number of those battery

packs, and they are indeed 18650s. [T]here’s a bunch of

them in there, all . . . welded together, basically, with little

. . . tabs. But there’s also a little circuit in there that

protects them. And they’re inside of a physically protective

case. So for example, with that type of intended use, a user

would never be able to short the battery. It’d be physically

impossible, because it would be inside this case.

Mr. Rondinone added that the major manufacturers of these batteries—

Samsung, Sony, and LG—prohibit using them in vaping devices:

Q. Okay. I guess, do [the major manufacturers] take a

position on whether their 18650 [batteries] should ever be

used individually or by a consumer in any application?

A. Yeah. They take a very strong position that these

batteries should never be sold to an end consumer for a

replaceable-battery use. They’re all very, very specific, and

which obviously includes vaping, which I think they

specifically prohibit as well. But they’re very specific that

they’re only intended for battery-pack manufacturers or

people who integrate them into a protective pack.

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Richard Marzola, Midwest’s expert witness in electrical engineering, conceded

that the major manufacturers have been telling people not to use these batteries for

the purposes of vaping since as early as 2015:

Q. And you would agree with me that all three of them

specifically tell people not to use these batteries for this

very specific use, vaping?

A. They do now. Yes.

....

Q. Sony 2015, any reason to agree or disagree with that?

A. No, none at all.

Q. LG, 2016/’17, any reason to disagree with that?

A. I think it was late ‘17, but agreed. I think that’s when

they first started talking about that. Yes.

Mr. Marzola added that authentic 18650 batteries manufactured by Sony and LG

expressly warn against using the product outside of a battery pack or in a vaping

device.

Mr. Rondinone also conducted a CT scan on the batteries to discern which one

caught fire. Ultimately, Mr. Rondinone opined the battery that caught fire was not

manufactured by Samsung, Sony, or LG. Mr. Marzola agreed that the subject battery

was not manufactured by Samsung, Sony, or LG. And at the outset of trial, the

parties collectively stipulated that “the incident battery is not a Samsung or Sony”;

“the incident battery was green”; and that “the brand of the incident battery is not

known.”

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Several employees from Darth Vapor provided testimony at trial. Brian

Caiazzo, an employee who ordered and maintained the inventory for Darth Vapor,

noted that from 2018 through April 2019, “[a]ll batteries were purchased from . . .

Midwest.” Brian Caiazzo testified that the battery shipments from Midwest would

come in a set of boxes that he could open to inspect the batteries. He added that these

boxes were not sealed and did not have any text or markings on them. Brian Caiazzo

noted that, among other products, he sold “18650 batteries with green wrappers.”

That said, Brian Caiazzo conceded that Darth Vapor did not have an electronic

inventory management system. Daniel Caiazzo, another Darth Vapor employee,

confirmed that Darth Vapor did not have any available records, including records

showing which distributors it purchased its products from.3

Notwithstanding Darth Vapor’s lack of records, Midwest provided invoices

from its orders with Darth Vapor at trial. Those invoices indicate that Midwest

supplied Darth Vapor with green 18650 batteries like the one that caused Plaintiff’s

injury. Mudassir Yasin, the managing director for Midwest, testified that Darth

Vapor regularly purchased LG and Sony 18650 batteries from Midwest. Mr. Yasin

noted that from September 2018 through March 2019, Darth Vapor purchased

approximately 130 batteries. However, Mr. Yasin conceded that Midwest did not

3 Daniel Caiazzo also stated that upon opening Darth Vapor in Wilmington, approximately 90% of its

supplies, including batteries, were sourced from Midwest. In the beginning, he handled the ordering

for the store, but by the end of 2017, he was no longer handling ordering for the store.

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source the batteries directly from Sony or LG; instead, Midwest regularly sourced its

18650 batteries from a company called E-Cig Fiend. Mr. Yasin further conceded that

E-Cig Fiend does not manufacture batteries; is not a subsidiary of Samsung,

Samsung SDI, or Sony; is not an authorized dealer for LG or Sony; and that he never

asked E-Cig Fiend where the batteries came from. He also conceded that when he

received shipments from E-Cig Fiend, the boxes did not contain any official logos or

trademarks.

Tom Murphy, the general counsel for Midwest, corroborated that Midwest

purchased its batteries from E-Cig Fiend. To his knowledge, E-Cig Fiend was not

owned or operated by LG, Sony, or Samsung. Mr. Murphy added that when Midwest

received products from suppliers, its employees would “spot-check” the boxes as they

came in. Mr. Murphy explained: “If we get a pallet that’s got 20 boxes on it, they may

open four or five of them.” Mr. Murphy added that when receiving shipments of

batteries, they would arrive in unmarked white boxes without any logo or trademark,

and that the batteries did not contain a warning “not to use it in a . . . device.”

According to Mr. Murphy, the only indication that the batteries were “authentic”

products was the labeling on the invoices it received from E-Cig Fiend. Moreover,

Mr. Murphy conceded that, around March 2019, Midwest “became aware that [the

major manufacturers of 18650 batteries] were saying” the batteries should not be

used in vaping devices.

At the close of Plaintiff’s case-in-chief, Midwest moved for a directed verdict,

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contending that Plaintiff had not produced evidence that Midwest supplied the

incident battery. The trial court denied that motion. Midwest renewed its motion for

a directed verdict on the same grounds at the close of all evidence again, the trial

court denied the motion. Midwest also made a cross-motion for a directed verdict at

the close of all evidence based on the sealed-container defense under N.C. Gen. Stat.

§ 99B-2(a) (2023) in response to Plaintiff’s motion for a directed verdict on the same

issue. Midwest argued that it acquired the batteries from its supplier in individual

white boxes and sold them to customers in the same packaging with no reasonable

opportunity to inspect each battery. The trial court denied both Plaintiff’s and

Midwest’s motions.

The jury later returned a verdict for Plaintiff. The jury concluded that:

Midwest supplied the incident battery to Darth Vapor; Plaintiff was injured by

Midwest’s negligence; and Midwest unreasonably failed to provide adequate warning

or instruction with the battery, proximately causing Plaintiff’s injury. The jury also

determined that the batteries were not provided by Midwest to Darth Vapor in sealed

containers, and that Midwest had a reasonable opportunity to inspect the products

in a manner that would have or should have revealed the claimed defect. The jury

ultimately awarded Plaintiff $1,630,000.00 in damages jointly and severally against

Defendants.

Midwest moved for judgment notwithstanding the verdict (“JNOV”) under

N.C. Gen. Stat. § 1A-1, Rule 50(b) thereafter, and in the alternative, for a new trial

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under N.C. Gen. Stat. § 1A-1, Rule 59. Midwest argued: the evidence did not support

the jury’s finding that it had supplied the incident battery; the trial court abused its

discretion by failing to bifurcate the trial; and the sealed-container defense applied

as a matter of law. The trial court denied both motions, and Midwest timely

appealed.4

II. Jurisdiction

This Court has jurisdiction over Defendant’s appeal pursuant to N.C. Gen.

Stat. § 7A-27(b)(1) (2023) (“From any final judgement of a superior court . . . .”).

III. Analysis

Midwest asserts the trial court erroneously denied its motions for JNOV and

directed verdict because “the evidence at trial was insufficient to support the jury’s

verdict that Midwest supplied the incident green battery,” and “the sealed container

doctrine applied as a matter of law.” Midwest also contends the trial court abused its

discretion in denying Midwest’s motion to bifurcate the trial proceedings because

Midwest satisfied the criteria under N.C. Gen. Stat. § 1A-1, Rule 42(b)(3).

4 See N.C. R. App. P. 3(c)(3) (providing that “if a timely motion is made by any party for relief under

Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty-day period for taking appeal is tolled

as to all parties until entry of an order disposing of the motion and then runs as to each party from the

date of entry of the order or its untimely service upon the party, as provided in subdivisions (1) and

(2) of this subsection (c).”).

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A. JNOV; Directed Verdict

Midwest contends Plaintiff failed to provide sufficient evidence at trial showing

Midwest supplied Darth Vapor with the green battery that caused Plaintiff’s injuries.

Midwest further contends it satisfied the statutory criteria to invoke the sealed

container defense because “sold the batteries to its customers in the same packaging”

and “had no reasonable opportunity to inspect each individual boxed battery.” See

N.C. Gen. Stat. § 99B-2. As a result, Midwest maintains the trial court erred by

denying its JNOV and directed verdict motions. We disagree.

“The question is whether there is sufficient evidence to sustain a jury verdict

in the non-moving party’s favor or to present a question for the jury.” Davis v. Dennis

Lilly Co., 330 N.C. 314, 411 S.E.2d 133, 138 (1991) (citation modified). If “the motion

for judgment notwithstanding the verdict is a motion that judgment be entered in

accordance with the movant’s earlier motion for directed verdict,” such as here, “this

Court has required the use of the same standard of sufficiency of evidence in

reviewing both motions.” Id. (citation modified). “The trial court must construe the

evidence in the light most favorable to the non-movant and resolve all evidentiary

conflicts in the non-movant’s favor.” Morris v. Scenera Rsch., LLC, 368 N.C. 857, 861,

788 S.E.2d 154, 158 (2016). Moreover, “we review this question of law de novo.” Id.

(citation modified). “‘Under a de novo review, the court considers the matter anew

and freely substitutes its own judgment’ for that of the lower tribunal.” Craig v. New

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Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citation

modified).

“The party moving for judgment notwithstanding the verdict, like the party

seeking a directed verdict, bears a heavy burden under North Carolina law.”

Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002)

(citation omitted). “To survive a motion for directed verdict or JNOV, the non-movant

must present ‘more than a scintilla of evidence’ to support its claim.” Morris, 368

N.C. at 861, 788 S.E.2d at 157–58 (quoting Stark v. Ford Motor Co., 365 N.C. 468,

480, 723 S.E.2d 753, 761 (2012)); Tomika Invs., Inc. v. Macedonia True Vine

Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 499, 524 S.E.2d 591, 595

(2000) (“The hurdle is high for the moving party as the motion should be denied if

there is more than a scintilla of evidence to support the plaintiff’s prima facie case.”).

Although “a scintilla is ‘very slight evidence,’ the non-movant’s evidence must still ‘do

more than raise a suspicion, conjecture, guess, surmise, or speculation as to the

pertinent facts in order to justify its submission to the jury.’” Morris, 368 N.C. at 861,

788 S.E.2d at 15 (citations omitted). “A directed verdict and judgment

notwithstanding the verdict are therefore not properly allowed unless it appears, as

a matter of law, that a recovery cannot be had by the plaintiff upon any view of the

facts which the evidence reasonably tends to establish.” Scarborough v. Dillard’s,

Inc., 363 N.C. 715, 720, 693 S.E.2d 640, 643 (2009) (citation modified).

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A products liability action grounded in tort has four essential elements: “(1)

evidence of a standard of care owed by the reasonably prudent person in similar

circumstances; (2) breach of that standard of care; (3) injury caused directly or

proximately by the breach, and; (4) loss because of the injury.” Thomasville v. Lease-

Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980) (citation omitted); Crews v.

W. A. Brown & Son, Inc., 106 N.C. App. 324, 329, 416 S.E.2d 924, 928 (1992) (“As

with other negligence actions, the essential elements of a products liability action

based upon negligence are (1) duty, (2) breach, (3) causation, and (4) damages.”).

1. Evidence of Battery

Midwest argues that, because Plaintiff could not produce a specific receipt or

a unique identifying label tying the green battery to Midwest, the evidence did not

establish Midwest was the supplier. Midwest maintains that at best, “the jury could

only speculate as to whether Midwest sold Plaintiff the battery that exploded in his

pocket.”

At trial, Plaintiff testified that he purchased an unlabeled green lithium-ion

18650 battery from Darth Vapor on 5 February 2019—approximately two months

before the incident occurred. The CT scan conducted by Mr. Rondinone thereafter

confirmed that the incident battery was green and was not manufactured by

Samsung, Sony, or LG. Additionally, Mr. Marzola agreed that the incident battery

was not manufactured by any of these major manufacturers.

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Brian Caiazzo, the employee who ordered and maintained the inventory for

Darth Vapor, testified that from 2018 through April 2019, “[a]ll batteries were

purchased from . . . Midwest.” Midwest’s invoices confirmed it shipped 18650

batteries to Darth Vapor during the relevant timeframe. In fact, Darth Vapor

purchased “LG HG2 3000Mah 2Pack 18650 3.7V Authentic” batteries from Midwest

between January 2018 and January 2019 as follows: January 2018 – twenty

batteries; February 2018 – twenty-five batteries; March 2018 – ten batteries; April

2018 – thirty batteries; May 2018 – ten batteries; June 2018 – ten batteries; July

2018 – thirty batteries; August 2018 – fifteen batteries; September 2018 – twenty-

five batteries; November 2018 – twenty batteries; and January 2019 – twenty

batteries. While these invoices do not indicate the color of the batteries, several

witnesses noted that 18650 batteries are available in a multitude of colors, including

green. Thus, the evidence supports an inference that Plaintiff purchased a green

18650 battery from Darth Vapor around two weeks after Darth Vapor had received a

shipment of similar batteries from Midwest.

Although Midwest claimed that the batteries it sold to Darth Vapor were

“authentic” batteries, Mr. Yasin conceded that Midwest did not source the batteries

directly from a manufacturer; instead, Midwest sourced its 18650 batteries from E-

Cig Fiend. Mr. Yasin further conceded that E-Cig Fiend does not manufacture

batteries; is not a subsidiary of Samsung, Samsung SDI, or Sony; is not an authorized

dealer for LG or Sony; and he never asked E-Cig Fiend where the batteries originated.

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He also conceded that when he received shipments from E-Cig Fiend, the boxes did

not contain any official logos or trademarks. Mr. Murphy corroborated that Midwest

purchased its batteries from E-Cig Fiend. To his knowledge, E-Cig Fiend was not

owned or operated by LG, Sony, or Samsung. Mr. Murphy added that when receiving

shipments of batteries, they would arrive in unmarked white boxes without any logos

or trademarks.

Here, the jury could reasonably infer that Plaintiff’s green battery was part of

Midwest’s shipments to Darth Vapor, and that the batteries it sold to Darth Vapor

were not the purported brand-name 18650 batteries. Plaintiff thus offered “more

than a scintilla of evidence” to support his claim. Morris, 368 N.C. at 861, 788 S.E.2d

at 157–58 (quoting Stark, 365 N.C. at 480, 723 S.E.2d at 761). Although Midwest

correctly notes the absence of a direct match between a specific invoice and Plaintiff’s

battery, caselaw recognizes that “circumstantial evidence [may be] sufficient to take

the case out of the realm of conjecture and into the field of legitimate inference from

established facts . . . .” Snow v. Duke Power Co., 297 N.C. 591, 597, 256 S.E.2d 227,

231–32 (1979) (citation omitted). Viewed in the light most favorable to the non-

movant, the direct and circumstantial evidence, coupled with the attendant

circumstances, supports an inference that Midwest was provided the incident

battery. Id.; see also generally Frazier v. Suburban Rulane Gas Co., 247 N.C. 256,

259, 100 S.E.2d 501, 503 (1957) (quoting Fitzgerald v. S. Ry. Co., 141 N.C. 530, 534,

54 S.E. 391, 393 (1906)); see also generally See Sneed v. Lions Club of Murphy, N.C.,

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Inc., 273 N.C. 98, 101, 159 S.E.2d 770, 772 (1968). The trial court properly denied

Midwest’s motions for directed verdict and JNOV.

2. Sealed Container

Midwest next argues the trial court should have directed a verdict—or entered

JNOV—in its favor because, as a non-manufacturing seller, it acquired and sold the

batteries in sealed containers, thereby barring liability under N.C. Gen. Stat. § 99B-

2(a). Alternatively, Midwest maintains that even if the batteries were not in sealed

containers, it had no reasonable opportunity to inspect them pursuant to subsection

99B-2(a).

A “seller” may not be held liable in a products liability action—“except an

action for breach of express warranty”—if the seller acquired the product and sold it

(1) “in a sealed container,” or (2) “under circumstances in which the seller was

afforded no reasonable opportunity to inspect the product in such a manner that

would have or should have, in the exercise of reasonable care, revealed the existence

of the condition complained of . . . .” Id. § 99B-2(a); Jones v. GMRI, Inc., 144 N.C.

App. 558, 562, 551 S.E.2d 867, 870 (2001). A seller “includes a retailer, wholesaler,

or distributor, and means any individual or entity engaged in the business of selling

a product, whether such sale is for resale or for use or consumption.” N.C. Gen. Stat.

§ 99B-1(4) (2023).

With respect to a seller’s duty to inspect, this Court has noted:

that a seller of a product made by a reputable

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manufacturer, where he acts as a mere conduit and has no

knowledge or reason to know of a product’s dangerous

propensities, “is under no affirmative duty to inspect or test

for a latent defect, and therefore, liability cannot be based

on a failure to inspect or test in order to discover such

defect and warn against it.”

This rule is particularly sound where . . . the product is sold

by the supplier in its original, sealed container.

Sutton v. Major Prods. Co., 91 N.C. App. 610, 614, 372 S.E.2d 897, 900 (1988) (citation

omitted). Indeed, “where a product has a latent defect, the general rule of liability is

that a distributor . . ., acting as a mere conduit of the product, is only liable for injuries

caused by known dangers.” Id. at 614, 372 S.E.2d at 899; Ziglar v. E. I. Du Pont de

Nemours & Co., 53 N.C. App. 147, 152, 280 S.E.2d 510, 514 (1981). The “liability of

a distributor or seller of goods depends on whether the seller knew or by the exercise

of reasonable care, could have discovered the dangerous character or condition of the

goods.” Sutton, 91 N.C. App. at 613, 372 S.E.2d at 899 (citation modified). Moreover,

a non-manufacturing seller has the “duty to warn of hazards attendant to the

assembled and installed product’s use but only when the seller ‘has actual or

constructive knowledge of a particular threatening characteristic of the product’ and

simultaneously ‘has reason to know that the purchaser will not realize the product’s

menacing propensities for himself.’” Crews, 106 N.C. App. at 330, 416 S.E.2d at 928

(citation omitted).

Midwest contends that because it received the 18650 batteries in individual

white boxes from its supplier and shipped them to Darth Vapor in that same

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packaging, it received the products in “sealed container[s].” Yet Plaintiff’s evidence

tended to show that the 18650 batteries arrived in loose, individual white boxes that

were not shrink-wrapped; Midwest added that when battery shipments arrived, it

opened some of the boxes for “spot-check” inspections. Moreover, Midwest did not

obtain its 18650 batteries from a “reputable manufacturer,” as both Mr. Yasin and

Mr. Murphy conceded that Midwest sourced them from E-Cig Fiend—which does not

manufacture batteries, neither is it a subsidiary of a major manufacturer nor an

authorized dealer for a major manufacturer. Ziglar, 53 N.C. App. at 152, 280 S.E.2d

at 514. The jury could therefore reasonably infer that the batteries did not arrive in

sealed packages and were not sourced from a reputable manufacturer.

The evidence also supports an inference that Midwest was afforded a

“reasonable opportunity to inspect the product in such a manner that would have or

should have, in the exercise of reasonable care, revealed the existence of the condition

complained of . . . .” N.C. Gen. Stat. § 99B-2(a); Sutton, 91 N.C. App. at 613, 372

S.E.2d at 899. The evidence also supports the inference that Midwest had “knowledge

or reason to know of [the] product’s dangerous propensities” when used in electronic

cigarettes. See Sutton, 91 N.C. App. at 614, 372 S.E.2d at 900 (citation omitted). As

noted above, Mr. Murphy testified that when Midwest received products from

suppliers, its employees would “spot-check” the boxes as they came in. Moreover, Mr.

Murphy noted that the batteries did not contain a warning “not to use it in a . . .

device.” But around March 2019, Midwest became “aware that [the major

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manufacturers of 18650 batteries] were saying” the batteries should not be used in

vaping devices.

To that end, Mr. Rondinone noted that the major manufacturers of these

batteries “take a very strong position that these batteries should never be sold to an

end consumer” for the purposes of vaping:

Q. Okay. I guess, do [the major manufacturers] take a

position on whether their 18650 [batteries] should ever be

used individually or by a consumer in any application?

A. Yeah. They take a very strong position that these

batteries should never be sold to an end consumer for a

replaceable-battery use. They’re all very, very specific, and

which obviously includes vaping, which I think they

specifically prohibit as well. But they’re very specific that

they’re only intended for battery-pack manufacturers or

people who integrate them into a protective pack.

And Mr. Marzola conceded that the major manufacturers have been telling people

not to use these batteries for the purposes of vaping since as early as 2015:

Q. And in the course of your work with these batteries, you

agree with me that those three manufacturers we’ve been

talking about, those are the major manufacturers of these

types of batteries, are they not?

A. They’re a large percentage. Yes. Yeah.

Q. And you would agree with me that all three of them

specifically tell people not to use these batteries for this

very specific use, vaping?

A. They do now. Yes.

....

Q. Sony 2015, any reason to agree or disagree with that?

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Opinion of the Court

A. No, none at all.

Q. LG, 2016/’17, any reason to disagree with that?

A. I think it was late ‘17, but agreed. I think that’s when

they first started talking about that. Yes.

In fact, Mr. Marzola conceded that authentic 18650 batteries manufactured by Sony

and LG expressly warn against using the product outside of a battery pack or in a

vaping device:

Q. And in the course of your work, you have also seen where

authentic Sony batteries have a warning on the wrapper,

don’t they?

A. That is accurate.

....

Q. -- and it says “Do not use this battery outside of a battery

pack” or something to that effect?

A. That is true. They do. Yes. It is . . . stamped on it. Yeah.

Q. So if it was a real Sony battery, it would have that

language on it?

A. I will say yes, for sure. But I’ve also seen it where a

nonauthentic had the same warning, to be honest with you.

Q. You would agree with me . . . that at some point . . . LG

started putting a warning on its wrappers that said: “Do

not use this in an e-cigarette.” You’ve seen that?

A. I have seen that in picture only. I’ve actually never

physically had one that I can recall photographing. But yes.

That . . . improper use warning, is allegedly now appearing

on that HG2, that LG cell. Yes.

Q. So authentic LG batteries have that warning on them,

as far as you know?

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Opinion of the Court

A. As far as I know. . . .

Q. And in the context of your hearing about that or having

knowledge about that, you’ve got no reason to disagree that

LG’s position is that they’ve been doing that since 2017?

A. That’s what I’ve been told.

Q. So at least LG’s position is that if it’s actually their

battery, authentic, since 2017 it would have that warning

on the wrapper?

A. That’s what they’ve been telling me. Yes. Yeah.

There is sufficient evidence supporting the inference that Midwest had a

reasonable opportunity to inspect the batteries, had knowledge of the batteries’

explosive propensities when used in vaping devices, had knowledge that the batteries

it was purchasing from E-Cig Fiend were not authentic, and had knowledge that the

batteries did not warn against using them in electronic cigarettes. N.C. Gen. Stat. §

99B-2(a). Although the individual white boxes contained other warnings, a

reasonable inspection of the batteries could have—at a minimum—revealed the

absence of such a necessary warning accompanying the product. See id. A reasonable

jury could find that Midwest was not merely an innocent conduit, but had reason to

know the batteries posed a significant explosion risk and lacked the necessary

warning. Accordingly, the trial court properly submitted this matter to the jury

rather than granting Midwest’s motion for a directed verdict. Walker, 320 N.C. at

733, 360 S.E.2d at 799. And once the jury resolved that dispute in Plaintiff’s favor,

the trial court did not err in denying Midwest’s motion for JNOV. Davis, 330 N.C. at

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314, 411 S.E.2d at 138; Scarborough, 363 N.C. at 720, 693 S.E.2d at 643. This

assignment of error is overruled.

B. Motion to Bifurcate

Midwest contends the trial court abused its discretion by refusing to bifurcate

the liability and damages phases of trial under N.C. Gen. Stat. § 1A-1, Rule 42(b)(3).

More specifically, Midwest maintains the trial court abused its discretion by denying

its motion to bifurcate on the basis of “good cause shown.” Id. We disagree.

“The severance of issues for separate trials is in the trial court’s discretion, and

its decision will not be reviewed absent an abuse of discretion[.]” Clarke v. Mikhail,

243 N.C. App. 677, 694, 779 S.E.2d 150, 163 (2015) (quoting Ashley v. Delp, 59 N.C.

App. 608, 610, 297 S.E.2d 905, 908 (1982)) (alteration in original); Headley v.

Williams, 162 N.C. App. 300, 307, 590 S.E.2d 443, 448 (2004) (“The decision to

bifurcate a trial in furtherance of convenience or to avoid prejudice is left to the

discretion of the trial court.”). “An abuse of discretion occurs when the trial court’s

ruling ‘is manifestly unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.’” Feeassco, LLC v. The Steel Network, Inc., 264

N.C. App. 327, 334, 826 S.E.2d 202, 208 (2019) (citation omitted).

Rule 42(b)(3) provides that in a tort action exceeding $150,000, the court “shall”

order separate trials on the issues of liability and damages:

Upon motion of any party in an action in tort wherein the

plaintiff seeks damages exceeding one hundred fifty

thousand dollars ($150,000), the court shall order separate

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Opinion of the Court

trials for the issue of liability and the issue of damages,

unless the court for good cause shown orders a single trial.

Evidence relating solely to compensatory damages shall

not be admissible until the trier of fact has determined that

the defendant is liable. The same trier of fact that tries the

issues relating to liability shall try the issues relating to

damages.

N.C. Gen. Stat. § 1A-1, Rule 42(b)(3) (emphasis added). While Rule 42(b)(3) states

“the court shall order separate trials,” id., “a motion to bifurcate may be denied ‘for

good cause shown.’” Clarke, 243 N.C. App. at 694, 779 S.E.2d at 163 (quoting N.C.

Gen. Stat. § 1A-1, Rule 42(b)(3)).

It is undisputed that Plaintiff sought greater than $150,000 in damages from

Defendants collectively, including Midwest. The trial court, however, denied

Midwest’s motion to bifurcate on the basis of good cause shown. See Clarke, 243 N.C.

App. at 694, 779 S.E.2d at 163 (citation omitted) (“This Court is not called upon to

determine whether the facts of this case support a showing of good cause; instead, we

are asked to review the trial court’s reasoning to determine whether its finding of

good cause was manifestly unsupported by reason or . . . so arbitrary that it could not

have not have been the result of a reasoned decision.”).

Midwest takes issue with the following portions of the trial court’s good cause

determination:

Defendants herein have not stipulated that plaintiff was

injured as a direct and proximate result of defendant’s

alleged negligence and thus . . . plaintiff has not been

relieved of his respective burdens of proof with respect to

injury or causation.

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....

Jury confusion and potential prejudice to Plaintiff in that

in a bifurcated proceeding, jurors would necessarily hear of

acts but not the consequences thereof especially of alleged

injuries (burns to leg) that may not be readily apparent to

jurors who may in turn reasonably question why or

whether a legal claim even exists[.]

Midwest maintains neither of these reasons support denying its motion to bifurcate

on the basis of good cause, arguing: “It is hard to imagine why it would have been

necessary for jury trial proceedings if Midwest had” entered such a stipulation; and

“the manner in which Plaintiff presented himself to the courtroom was not a basis to

deny statutory bifurcation[.]”

Even if these reasons are unsupported as Midwest asserts, the trial court

provided a battery of other reasons underlying its good cause determination, none of

which Midwest contests on appeal. Among those reasons: “[b]ifurcation reduces the

likelihood of juror sympathies on the issue of liability”; “[b]ifurcation may save time

in the event one or more of the defendants herein is/are not liable to plaintiff”; “[a]

single proceeding promotes judicial economy and efficiency by eliminating duplicative

witnesses, and redundant procedures”; “[b]ifurcation . . . represents the likelihood of

increased scheduling burdens . . . as well as the likelihood of increased expense to

taxpayers”; [t]he “absence of cross-claims or counterclaims”; “[t]he parties’ forecasts

as to the number of witnesses and expected length of testimonies for the liability and

damage portions respectively”; “[d]ifficulties in confining or tailoring jury selection

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Opinion of the Court

consistent with bifurcation”; and “[t]he issues of liability and damages herein appear

sufficiently interwoven.” The trial court thus concluded “that bifurcation in this

particular litigation will not reasonably assist in a clarification or simplification of

issues nor achieve a more fair or expeditious resolution of this action.”

The trial court considered the possibility of duplicative testimony in the event

of bifurcation since Plaintiff identified several witnesses who would be forced to

testify twice. The trial court also considered the economic impact of duplicative

proceedings insofar as bifurcation would require “multiple closing arguments,

multiple opening statements, multiple jury charges, multiple charge conferences,

[and] multiple jury deliberations.” Thus, even disregarding the contested portions of

the trial court’s order, Midwest “has failed to carry [its] burden to show the trial

court’s ‘finding of good cause in this specific case was manifestly unsupported by

reason . . . or so arbitrary that it could not have been the result of a reasoned

decision.’” Id. at 695, 779 S.E.2d at 163 (citation omitted). We therefore hold the trial

court did not abuse its discretion by denying Midwest’s motion to bifurcate. Id. at

694, 779 S.E.2d at 163.

IV. Conclusion

For the above reasons, we conclude the trial court properly denied Midwest’s

directed verdict and JNOV motions. Additionally, the trial court did not abuse its

discretion by declining to bifurcate the liability and damages phases of trial.

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Accordingly, we affirm the trial court’s judgment and its orders denying Midwest’s

motions.

AFFIRMED.

Judges HAMPSON and FLOOD concur.

Report per Rule 30(e).

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