Bic Pen Corp.. v. Carter

• Decision Date: 30 September 2011
• Docket Number: No. 09–0039.,09–0039.
• Parties: BIC PEN CORPORATION, Petitioner,v.Janace M. CARTER, as Next Friend of Brittany Carter, Respondent.
• Court: Texas Supreme Court

346 S.W.3d 533

54 Tex. Sup. Ct. J. 1168

BIC PEN CORPORATION, Petitioner,

v.Janace M. CARTER, as Next Friend of Brittany Carter, Respondent.

No. 09–0039.

Supreme Court of Texas.

Argued March 23, 2010.Decided June 17, 2011.Rehearing Denied Sept. 30, 2011.

Reagan W. Simpson, King & Spalding LLP, Austin, Kyle H. Dreyer, Hartline Dacus Barger Dreyer & Kern, LLP, Dallas, Darrell L. Barger, Hartline Dacus Barger Dreyer, L.L.P., Corpus Christi, Bert L. Huebner, Bay City, Amy Eikel, King & Spalding LLP, Houston, for Bic Pen Corporation.Lisa D. Powell, Daniel Keith Worthington, Daniel G. Gurwitz, Atlas & Hall, L.L.P., McAllen, Daniel W. Shindler, Bay City, for Janace M. Carter.O. Rey Rodriguez, Fulbright & Jaworski L.L.P., Dallas, for Amicus Curiae Product Liability Advisory Council, Inc.Justice JOHNSON delivered the opinion of the Court.

Six-year-old Brittany Carter was burned when her five-year-old brother accidently set fire to her dress with a BIC lighter. The trial court entered judgment against BIC based on jury findings that the lighter was defectively designed and manufactured and that each of the defects caused Brittany's injuries. The court of appeals affirmed based on the defective design finding and did not reach BIC's other issues. Bic Pen Corp. v. Carter, 171 S.W.3d 657, 662 (Tex.App.-Corpus Christi 2005), rev'd 251 S.W.3d 500 (Tex.2008). In a prior appeal we held that the design defect claim was preempted by federal law and remanded the case to the court of appeals. BIC Pen Corp. v. Carter, 251 S.W.3d 500, 511 (Tex.2008). The court of appeals then affirmed the trial court's judgment based on the manufacturing defect finding. 346 S.W.3d 569.

We conclude that no evidence supports the finding that a manufacturing defect caused Brittany's injuries. We reverse and render judgment for BIC.

I. Background

Jonas Carter and his sister Brittany were playing when Jonas accidently set fire to Brittany's dress with a J–26 model BIC lighter (the Subject Lighter). Brittany was badly burned and Janace Carter, Brittany's mother, sued BIC as Brittany's next friend. Janace claimed that Brittany's injuries were the result of manufacturing and design defects in the Subject Lighter. A jury found that both types of defects were producing causes of Brittany's injuries. The trial court rendered judgment against BIC for actual and exemplary damages found by the jury. BIC appealed and the court of appeals affirmed. Bic Pen, 171 S.W.3d at 662. The appeals court held, in part, that the design defect claim was not preempted by federal law and the evidence was sufficient to support the finding that a design defect in the lighter was a producing cause of the fire that burned Brittany. Id.

We granted BIC's petition for review, held that the design defect claim was preempted by federal law, and remanded the case for the court of appeals to consider the remaining issues. BIC Pen, 251 S.W.3d at 511. On remand the court of appeals concluded that Carter's manufacturing defect claim was not preempted by federal law, the jury's finding on that claim was supported by the evidence, the trial court did not err by giving a spoliation instruction, and there was no evidence BIC acted with malice. 346 S.W.3d at 573. The appeals court affirmed the trial court's judgment as to actual damages and reversed and rendered as to exemplary damages. Id.

BIC again petitioned for review, asserting that (1) Carter's manufacturing defect claim is preempted by federal law, and (2) Carter did not prove a manufacturing defect caused Brittany's injuries because there was no evidence (a) that the lighter varied from manufacturing specifications, (b) that the lighter was unreasonably dangerous, or (c) of causation. Carter filed a conditional petition for review, arguing that the court of appeals erred in reversing the award of punitive damages.

We conclude that Carter's manufacturing defect claim is not preempted by federal law. We further conclude, however, that the evidence is legally insufficient to support the finding that a manufacturing defect caused Brittany's injuries.

We first address BIC's assertion that Carter's manufacturing defect claim is preempted.

II. Preemption

A state law that conflicts with federal law is preempted and has no effect. U.S. Const. art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 747, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); BIC Pen, 251 S.W.3d at 504. State law may be preempted in three ways: (1) expressly, by a federal law specifically preempting state law; (2) impliedly, by the scope of a federal law or regulation indicating Congress intended the federal law or regulation to exclusively occupy the field; or (3) impliedly, by the state law conflicting with a federal law or regulation to the extent it is impossible to comply with both or by the state law obstructing Congress's objectives as reflected by the federal law. BIC Pen, 251 S.W.3d at 504.

A. Federal Standards

In 1972, the Consumer Product Safety Act (CPSA) created the Consumer Product Safety Commission (CPSC). The CPSC is an independent regulatory body charged with (1) protecting the public against unreasonable risks of injury associated with consumer products, (2) developing safety standards for consumer products, and (3) promoting research and investigation into the cause and prevention of injuries. 15 U.S.C. §§ 2051(b)(1), (b)(2), (b)(4), 2053(a); BIC Pen, 251 S.W.3d at 503. As relevant to this matter, the CPSC analyzed costs and benefits to the public of requiring disposable lighters to be child resistant. It then adopted regulations requiring disposable lighters to be child resistant as to children under five years of age and standards for certifying lighters as child resistant. BIC Pen, 251 S.W.3d at 503; 16 C.F.R. § 1210.1. The CPSC does not impose design requirements on manufacturers. Rather, the child-resistance requirements are performance based so the burden is on manufacturers to design lighters that comply with the performance standards. BIC Pen, 251 S.W.3d at 504 (citing Safety Standard for Cigarette Lighters, 58 Fed.Reg. 37,580–81 (July 12, 1993) (codified at 16 C.F.R. pt. 1210)). Before a lighter may be distributed, the manufacturer must submit a detailed description of the lighter and its child resistant features to the CPSC and the lighter must be certified. 16 C.F.R. § 1210.15.

In order for a lighter such as BIC's J–26 to be certified as child resistant, CPSC requires that tests be performed to determine the extent to which children under five years of age can operate the lighter. At least eighty-five percent of the children who are tested must be unable to operate it. BIC Pen, 251 S.W.3d at 504; 16 C.F.R. § 1210.4(h)(1).

The CPSC regulations require a specific testing protocol to be followed for a lighter to be certified as child resistant. Before testing is begun, measurements are taken to ensure that all operating components on which child resistance is dependent are within designed tolerances. 16 C.F.R. § 1210.4(c)(4). The test protocol then begins with a panel of one hundred children ages forty-two to fifty-one months being divided into six groups of fifteen to seventeen children. The children on each panel must consist of three age groups: forty-two to forty-four months, forty-five to forty-eight months, and forty-nine to fifty-one months, with approximately thirty, forty, and thirty percent of the children to be of the respective age groups. See id. § 1210.4. Each group uses one of six surrogate lighters that look like actual lighters, but emit signals rather than flames when operated. Id. Each child is given two five-minute attempts to operate the lighter being tested. If no more than ten of the children on the first test panel operate the lighter, the lighter is certified as child resistant and no further testing is necessary. Id. § 1210.4(h)(1). If more than ten children on the first panel operate the lighter, however, another panel of 100 children is tested. Id. If no more than thirty of the 200 children on the two panels operate the lighter, it is certified as child resistant and no further testing is required. Id. § 1210.4(h)(2).

B. The J–26 Lighter

To operate a J–26 lighter, the user must press a shield over the sparkwheel and rotate the sparkwheel to generate a spark while pressing a fork near the sparkwheel to release fuel. In 1995, BIC reported to the CPSC that testing had been conducted on the J–26 and ninety percent of the children tested could not operate the surrogate lighters. The report set out specifications for the J–26's five components ¹ that collectively resulted in the lighter being child-resistant: (1) the distance that the shield over the sparkwheel must be pushed down, (2) the force required to move the shield; (3) the distance the fork must move to release butane; (4) the force required to depress the fork; and (5) the force required to produce a spark by rotating the sparkwheel. Carter's manufacturing defect claim was that two components of the Subject Lighter, the shield force and the fork force, deviated from specifications BIC furnished to the CPSC.

In BIC's previous appeal, we noted that the savings clause in the CPSA allows state-law tort claims so long as they do not conflict with applicable federal regulations. BIC Pen, 251 S.W.3d at 506. On that basis, we held Carter's design defect claim was preempted because the design of the J–26 was properly certified according to federal protocol, and state law imposing a higher common-law standard for child resistance would conflict with the federal regulations. Id. at 509. BIC asserts that Carter's manufacturing defect claim is similarly preempted because the imposition of manufacturing defect liability based on a product that complies with federal manufacturing requirements would impose a more strict standard than federal law.

C. Do Carter's Claims Impose a Higher Requirement

BIC argues that Carter's manufacturing defect claim effectively imposes a higher...