Colon ex rel. Molina v. Bic Usa, Inc.

• Decision Date: 19 December 2001
• Docket Number: No. 00 CIV. 3666(SAS).,00 CIV. 3666(SAS).
• Citation: 199 F.Supp.2d 53
• Parties: Josue COLON, an Infant under the age of 14 years by his Mother and Natural Guardian, Iris MOLINA, and Iris Molina, Individually, Plaintiffs, v. BIC USA, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

199 F.Supp.2d 53

Josue COLON, an Infant under the age of 14 years by his Mother and Natural Guardian, Iris MOLINA, and Iris Molina, Individually, Plaintiffs, v. BIC USA, INC., Defendant.

No. 00 CIV. 3666(SAS).

United States District Court, S.D. New York.

December 19, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Barry I. Levy, Beth Shapiro, Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York City, for Plaintiffs.

Anthony F. Tagliagambe, Brian A. Kalman, London Fischer, LLP, New York City, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

In the afternoon of January 2, 1998, then six year-old Josue Colon stole away with his younger brother to play with their great-aunt's disposable cigarette lighter in the bathroom while she was watching television. Tragically, Josue succeeded in igniting his own shirt, inflicting severe burns on his torso and neck. Josue, an infant under the age of fourteen by his mother, Iris Molina, and Iris Molina, individually, bring this personal injury action against defendant BIC USA, Inc. ("BIC"), based on common law tort theories of negligence, strict products liability and breach of warranty in connection with the design, manufacturing, testing, merchandising, and marketing of a BIC disposable butane lighter. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332 and venue is proper in this district.

This Court denied BIC's motion to dismiss on preemption grounds, holding that plaintiffs' claims were not expressly or impliedly preempted by the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2084. See Colon v. BIC, 136 F.Supp.2d 196 (S.D.N.Y.2000)("Colon I"). Trial is set to begin on January 7, 2002. BIC now moves for summary judgment on the grounds that (1) the lighter that injured Josue was substantially modified after it left BIC's control; (2) there can be no duty to warn when additional warnings would be superfluous under the circumstances; and (3) no genuine issue of material fact exists as to whether Josue removed the lighter's safety feature. Defendant also moves to exclude the testimony of plaintiffs' expert, John Nelson, on the ground that it fails the Daubert, Kumho Tire and Joiner criteria for admissibility of expert testimony.

Further, defendant moves to dismiss Iris Molina's claims for emotional and psychiatric injuries, as well as for pecuniary support, because she was not within the "zone of danger" and because an award of pecuniary support for the mother would be duplicative of any lost earnings award to Josue. Defendant also moves for separate trials on liability and damages. Finally, defendant brings the following motions in limine: (1) to limit the number of photographs and slides of Josue's injuries; (2) to exclude the videotape of Josue in the hospital; (3) to exclude prior claims and complaints against BIC; and (4) to exclude expert testimony regarding plaintiffs' claim that the lighter's bright color was a design defect.

Plaintiffs bring the following motions in limine: (1) to exclude the testimony of defendant's expert, Lawrence Broutman, because it would be cumulative; (2) to exclude the testimony of defendant's expert, Eric Peterson, because it would be cumulative, irrelevant and amount to improper legal testimony. Plaintiffs move to exclude all evidence of Josue's prior conduct and activity as irrelevant and improper character evidence.

Defendant's motions (1) to dismiss Iris Molina's claims, (2) to bifurcate the trial, and (3) to exclude all reference to color as a design defect are granted. Defendant's motions to limit the number of visual representations of Josue's injuries, and to exclude the hospital videotape, are granted with respect to the liability phase of trial, but denied with respect to the damages phase. The motion to exclude evidence of Josue's prior conduct or activity is granted. Plaintiffs' motion to exclude the testimony of Eric Peterson is granted, but their motion to exclude Lawrence Broutman is denied.

For the reasons set forth below, defendant's motion for summary judgment is granted as to plaintiffs' design defect claims including failure to warn, but denied as to their manufacturing defect claim. Defendant's motion to exclude John Nelson's testimony on alternative designs is granted, but Nelson may testify as both a lay and expert witness regarding causation in conjunction with plaintiffs' claim for manufacturing defect.

I. FACTUAL BACKGROUND

A. The Accident

On January 2, 1998, six-year-old Josue sustained burns to his torso and neck after igniting his shirt with a BIC lighter. See Plaintiff's Verified Amended Complaint ("Compl.") ¶ 11. The incident occurred while Josue was staying with his aunt, Brunhilda Rivera, in Worcester, Massachusetts. See Defendant's Local Civil Rule 56.1 Statement ("Def.56.1") ¶ 1; Plaintiffs' Response to Defendant's Rule 56.1 Statement ("Pl.56.1") ¶ 1.

Ms. Rivera purchased a red BIC J-15 lighter three days prior to the accident from Santiago's Market in Worcester, Massachusetts. See Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2. She describes the lighter that she bought as having a red body, a black locker, and a white warning label that read "Flammable" or "Inflammable." See 2/26/01 Deposition of Brunhilda Rivera, Great-Aunt of Josue Colon ("Rivera Dep.") at 16, 55-56. She did not have any other lighters in the house at the time of the accident. See Pl. 56.1 ¶ 2; Rivera Dep. at 37-38. Plaintiffs contend that the lighter that the police retrieved several hours after the accident ("subject lighter" or "lighter") is the same lighter that Ms. Rivera purchased three days earlier and that Josue used to injure himself.¹ Pl. 56.1 ¶ 3.

The subject lighter no longer had a child-resistant safety latch (or "locker" or "child guard" or "safety feature") when the police retrieved it. See Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13; Photograph of Subject Lighter Placed on 01/02/98 Note Written by Sgt. Mark Richardson ("01/02/98 Police Photograph")(identifying subject lighter and transcribing Ms. Rivera's address), Ex. E to 10/15/01 Declaration of John Nelson, Plaintiffs' Expert ("Nelson Dec."). Both Ms. Rivera and Iris Molina, who was present in the store where Ms. Rivera bought the lighter, recall that the subject lighter was purchased with a child-resistant safety latch attached to it. See Rivera Dep. at 16, 57; 1/4/01 Report of John Nelson ("Nelson Rpt.") at 3 (referring to his 12/27/00 interview of Iris Molina). In fact, Ms. Rivera testified that she made sure that she purchased a lighter that was child-resistant. See Rivera Dep. at 57. Ms. Rivera testified that she did not let anyone borrow her lighter in the three days between its purchase and the accident, that she did not remove the subject lighter's latch or any part of the lighter prior to the accident, and that she has never removed the "locker" or any part of any lighter in the past. See id. at 64, 62, 63-64; Pl. 56.1 ¶ 9. She swears that the child-resistant locker was intact when she last used the lighter at 1:30 p.m. and placed it on the shelf in the living room. See Rivera Dep. at 63.

On the day of the accident, Ms. Rivera smoked her last cigarette at 1:30 p.m. and placed the subject lighter on an approximately five foot high shelf in the living room, about six feet from where the two boys were watching television. See Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10; Rivera Dep. at 66 35-36 (testifying that she always put her lighter on that shelf). She then sat down to watch television with Josue and his brother, Abdel. See Rivera Dep. at 35. Around 3 p.m. Josue and his brother asked permission to use the bathroom. See id. at 35, 44. Ms. Rivera agreed. See id. at 44. Ms. Rivera believes that either Josue or his brother climbed onto the back of a sofa or armchair to obtain the lighter, and went into the bathroom with it. See id. at 66. A few minutes later, Ms. Rivera heard screams coming from the bathroom and came running. See id. at 45 ("two or three minutes"), 50 ("a couple of minutes"), 70 ("a few minutes"). She found Josue crying, engulfed in flames from the waist up; she rolled Josue on the kitchen floor and doused him with water to put out the fire. Id. at 44, 50, 68.

After calling 911, Ms. Rivera asked the younger brother whether they had used matches to start the fire. See id. at 47. According to Ms. Rivera, Abdel responded, "No. He had the lighter." Id. (referring to Josue). Ms. Rivera also testified that the younger brother told her that Josue had been "playing with a black thing ... moving [it], trying topulling that black thing and trying to light it up." Id. at 48. Ms. Rivera found the subject lighter on the floor of the bathroom or the kitchen, and tossed it onto the dining room table. See id. at 42, 48 (not recalling whether it was the bathroom or kitchen).

Josue testified that the lighter was easy to operate because it did not have a "little black thing" attached to it. See 3/28/01 Deposition of Josue Colon ("Josue Dep.") at 35 (referring to the black locker). Josue explained, "it turned on by itself when I switched it, but it didn't have the thing on it," later clarifying "the little black thing. I don't know." Id. at 34-35. He did not specify whether he meant that the black locker, or safety feature, was missing at the time he used it or at the time he or his brother took it from the shelf. Josue clarified that he simply pressed the metal part of the lighter with his thumb to ignite it. See id. at 36 ("[Q:] What part of the lighter did you touch? [A:] The metal part. When I touched, it went on."). Josue also denied that he had altered the lighter in any way. See id. at 35 ("[Q:] From the time you reached for the lighter on the shelf to the time you got to the bathroom, did you do anything to the lighter? [A:] No.")...