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Home / whistleblowers

Judge’s tentative ruling casts doubt on man’s whistleblower claim

A judge indicated Monday he is poised to dismiss most of the causes of action in a lawsuit filed by a former employee of a vaporizer designer and manufacturer, who alleges he was wrongfully fired in 2019 from the Torrance-based company for complaining about safety conditions and refusing to lie to customers about the testing of the firm’s products.

Adam Temkin brought the Los Angeles Superior Court lawsuit in October 2020 against Vaporous Technologies Inc., which, according to its website, is the first-ever private label agency for the e-cigarette industry.

In a tentative ruling issued Monday, Judge Bruce G. Iwasaki said he is inclined to grant a defense motion to dismiss Temkin’s allegations of whistleblower retaliation, wrongful termination, breach of contract and implied-in-fact contract, negligent hiring, supervision and retention, intentional infliction of emotional distress and fraud. The judge is scheduled to hear arguments Tuesday before issuing a final ruling.

The defense motion did not challenge Temkin’s claims for unfair business practices and violations of the state Labor Code.

Temkin, 47, was hired in January 2019 as Vaporous Technologies’ sales and business development manager. He met his sales goals and obtained as a client one of the biggest names in the vape pen industry, Acreage Holdings, according to court papers.

Temkin’s work environment changed when the company sent a batch of its cartridges to a cannabis testing lab, Cannasafe, for heavy metal testing, the suit states. Temkin received the testing results from Cannasafe in February 2019 and although some cartridges passed, many others had lead at levels 10 times over the legal limit, according to his lawsuit.

Acreage Holdings reported to Temkin that sample cartridges he sent them failed lead testing and the plaintiff reported the issue right away to a supervisor, who told Temkin to tell the client that Vaporous Technologies cartridges had never failed a test before, the suit states.

Temkin alleges he reminded the supervisor that the company cartridges had failed Cannasafe’s testing. Vaporous Technologies developed a new cartridge model, but still sold the old version with alleged lead contamination to cannabidiol oil companies, according to the plaintiff’s lawsuit.

In May 2019, another supervisor began communicating directly with Acreage Holdings and left Temkin off emails to the client, the suit states. Temkin began to feel as he was being set up to fail and feared he would be fired, causing him to suffer anxiety and depression, according to his court papers.

Temkin was excluded from meetings with potential new clients and was not allowed to attend a trade show where he had meetings planned with prospective clients, the suit states.

Vaporous Technologies failed to pay Temkin his salary in August 2019 and shortly thereafter he was fired, the suit states.

The judge reserved most of his tentative ruling to discussion of Temkin’s claim to be a whistleblower.

“Temkin confuses reporting illegal activity with normal steps a company takes to ensure the safety and integrity of its products,” the judge wrote. “If a product is found to be noncompliant with standards, and superiors are notified, that is what is supposed to happen. The notification is not whistleblower activity. On the other hand, if a company, with reason to know that a product is unsafe or not as warranted nevertheless distributes it, the disclosure to law enforcement or to upper management may be protected by (law). It is essential, of course, that the information be factual and not mere conjecture.”

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