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From Products Liability Law Daily, November 11, 2013

Admission of CPSC’s lack of enforcement activity against cigarette lighter maker challenged

By Pamela C. Maloney, J.D.

The Conservator for a 3-year-old child who was seriously injured while using a cigarette lighter has asked the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the Sixth Circuit allowing the introduction of evidence of inaction by the U.S. Consumer Product Safety Commission (CPSC) in a products liability action involving the child-safety feature on the lighter (Cummins v. BIC USA, Inc.Docket No. 13-574, November 6, 2013). The Sixth Circuit’s decision was issued on August 14, 2013.

Background. The 3-year-old had sustained severe burn injuries to his chest and face when he used a cigarette lighter manufactured by BIC USA, Inc., to loosen a button on his shirt and the lighter ignited his shirt. The child testified at trial that he did not know that the lighter would cause a flame. The lighter, which had been found at the scene of the accident was worn and the child safety guard had been removed from the lighter. The Conservator for the child filed a products liability action against the manufacturer seeking compensatory and punitive damages based on various theories under state and federal law. The jury determined that the manufacturer had not knowingly or willfully violated federal consumer product safety rules and that the lighter was not defective and unreasonably dangerous in a way that was a substantial factor in causing the child’s injuries.

CPSC’s failure to take action. The theory behind the Conservator’s claims was based largely on the contention that the lighter was not in compliance with federal consumer product safety requirements because the child resistant guard could be removed too easily. According to the Conservator, the manufacturer’s change from a one-piece child guard to a two piece guard, which was easier to remove from the lighter, violated the federal requirements. To counter this claim, the manufacturer introduced expert testimony by a product safety consultant who had been employed by CPSC. The expert’s testimony, in relevant part, established that the lighter in question was not unknown to CPSC and that CPSC had the opportunity to qualify and evaluate different aspects of the lighter’s design. This testimony established CPSC had not completely failed to act in relation to the lighter but had taken some action; that CPSC had not found the lighter to be in violation of any safety requirements; and that CPSC had not exercised its authority to recall. In admitting the expert’s testimony, the court admonished the jury that the fact that CPSC had never cited BIC for violating the product safety rules was not necessarily determinative, but was a factor to be considered.

Questions presented. The Conservator presented three questions for review by the High Court:

  • Whether the prohibition of 15 U.S.C. §2074(b) against the introduction of evidence of “inaction” by CPSC with respect to the safety of a consumer product in litigation under common law or state statutory law was inapplicable when CPSC has only generally considered a consumer product, even though the specific product design or the alleged defect in that consumer product has never even been specifically considered by the agency?

  • Whether evidence that CPSC had never investigated, expressed concern about, taken any enforcement action with respect to, or found a particular consumer product non-compliance with a consumer product safety rule was relevant under F.R.E. 401 and 403 in products liability litigation in which the specific product had never even been considered by the agency? And

  • Whether, upon finding that the trial court erred in admitting evidence of “inaction” by CPSC, the appropriate standard to measure whether the trial court’s error was harmless was whether the error caused a different outcome at trial—as adopted by the Sixth Circuit—or whether the appropriate standard called for reversal when the appellate court lacked a “fair assurance” that the outcome of the trial had not been affected by the evidentiary error.

The case number is 13-574.

Attorneys: Joseph Hubert Mattingly III (Mattingly & Nally-Martin) for David R. Cummins.

Companies: BIC USA, Inc.

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