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From Products Liability Law Daily, August 15, 2013

Expert testimony on CPSC’s lack of enforcement action against cigarette lighter maker admissible

By Pamela C. Maloney, J.D.

The admission of an expert’s testimony concerning the Consumer Product Safety Commission’s (CPSC) activity in relation to a cigarette lighter that had a two-piece child safety guard and its failure to take any enforcement action against the manufacturer for its alleged failure to comply with federal safety regulations was proper, the U.S. Court of Appeals for the Sixth Circuit ruled (Cummins v. BIC USA, Inc., August 14, 2013, McKeague, D.).

Background. A 3-year-old suffered 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 was 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. The Conservator’s motion for a new trial was denied and he appealed, contending that, among other issues, the court erred in allowing the manufacturer to introduce evidence of the failure of the Consumer Product Safety Commission (CPSC) to take action concerning the use of a two-piece guard on the lighter that caused the child’s injuries, in violation of 15 U.S.C. §2074(b). The Conservator argued that evidence of CPSC activity in relation to a product was admissible, but that evidence of inaction by the agency was not admissible.

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 the CPSC and that the 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.

Citing two prior cases construing §2074(b), the Conservator distinguished the facts in those cases from the case at bar, stating that in both those cases, there was evidence of CPSC activity—in one case CPSC had issued a report and in the other CPSC had set out “articulated reasons” for its actions in an investigation. The Conservator claimed that the expert’s testimony regarding CPSC’s involvement amounted to evidence of inaction only and, therefore, should not have been admitted. The court rejected this argument, finding that evidence of the CPSC’s undisputed failure to take any enforcement action in relation to the lighter and the difference between the one-piece or two-piece child resistant guard met the admissibility standards set in the prior cases. The fact that CPSC may not have passed specifically on the ease with which the two-piece guard could be deactivated or overridden did not justify an inference that the two-piece guard was approved or was safe. Instead, the CPSC’s action or inaction with regard to the design went to the weight of the evidence and the court clearly instructed the jury that CPSC’s failure to cite the manufacturer for violating the product safety rules was merely a factor to be considered. Thus, admission of the expert’s testimony was a proper interpretation of the law.

The case number is: 12-5635.

Attorneys: Joseph Hubert Mattingly, III (Mattingly & Nally-Martin) for Cummins. Edward H. Stopher (Boehl, Stopher & Graves) for BIC USA, Inc.

Companies: BIC USA, Inc.

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