Cummins v. Bic United States, Inc.

• Decision Date: 14 August 2013
• Docket Number: No. 12–5635.,12–5635.
• Citation: 727 F.3d 506
• Parties: David R. CUMMINS, Conservator for C.A.P., a minor, Plaintiff–Appellant, v. BIC USA, INC. and BIC Consumer Products Manufacturing Company, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

727 F.3d 506

David R. CUMMINS, Conservator for C.A.P., a minor, Plaintiff–Appellant,

v.BIC USA, INC. and BIC Consumer Products Manufacturing Company, Inc., Defendants–Appellees.

No. 12–5635.

United States Court of Appeals,Sixth Circuit.

Argued: July 25, 2013.

Decided and Filed: Aug. 14, 2013.

ARGUED:Joseph H. Mattingly, III, Mattingly & Nally–Martin PLLC, Lebanon, Kentucky, for Appellant. Edward H. Stopher, Boehl, Stopher & Graves LLP, Louisville, Kentucky, for Appellees. ON BRIEF:Joseph H. Mattingly, III, Mattingly & Nally–Martin PLLC, Lebanon, Kentucky, for Appellant. Edward H. Stopher, Raymond G. Smith, Todd P. Greer, Boehl, Stopher & Graves LLP, Louisville, Kentucky, for Appellees.

Before: KEITH and McKEAGUE, Circuit Judges; WATSON, District Judge. ^*

OPINION

KEAGUE, Circuit Judge.

This products liability action stems, tragically, from severe burn injuries suffered by a three-year old boy. After a nine-day trial, the jury returned a verdict for the manufacturer of the cigarette lighter that started the injurious fire. The jury found the lighter was not defective or unreasonably dangerous in a way that causally contributed to the injuries. Plaintiff contends on appeal that the trial was unfair because the court (1) allowed inadmissible evidence, and (2) improperly refused to give a jury instruction concerning misconduct by opposing counsel. Finding no error, we affirm the judgment of the district court.

I. BACKGROUND

The minor victim, referred to simply as “CAP,” sustained serious burns on December 17, 2004, when he was three years old. He had just returned to his mother Amy Cowles' home in Greensburg, Kentucky, after an overnight visit with his father and step-mother, Thor and Tammy Polley. CAP testified in trial that he found a cigarette lighter on the floor in his father's truck (driven by his step-mother) as he returned to his mother's home. CAP used the lighter to loosen a button on his shirt. He said he did not know the lighter would cause a flame. When his shirt caught fire, CAP screamed. His mother responded to the scream. She observed CAP in flames from the waist up, attempted to remove the shirt, and poured water over his chest. She held him until the ambulance arrived and went with him to the hospital. CAP spent three weeks in the hospital, where he received treatment for second and third degree burns to his face and chest and underwent several skin graft surgeries before being released on January 7, 2005.

A black BIC model J–26 cigarette lighter was found at the scene of the fire and delivered to Greensburg Police Chief John Brady. The lighter was admitted in evidence at trial, and Chief Brady identified it as the lighter given to him at the scene. He testified that the lighter was worn, and the child safety guard had been removed from the lighter when it was given to him. ¹ Thor Polley denied that the lighter belonged to him but acknowledged that he usually bought BIC lighters and customarily removed the child-resistant guards from them to make them easier to use.

This action was commenced by David R. Cummins as Conservator for CAP on January 8, 2008 in the Green Circuit Court, Green County, Kentucky. The complaint set forth claims for compensatory and punitive damages based on various theories under state and federal law. Named as defendants were BIC USA, Inc., and BIC Consumer Products Manufacturing Company, Inc. (collectively “BIC”), as manufacturer of the lighter. BIC removed the action to federal court based on the parties' diversity of citizenship.

A jury trial began on January 23, 2012, limited to plaintiff's claims for violation of Kentucky's Consumer Protection Act and violation of the federal Consumer Product Safety Rule. After nine days of trial, the jury deliberated for two hours before finding (1) that BIC had not knowingly or willfully violated the Consumer Product Safety Rule, 16 C.F.R. § 1210.3(b)(4), in a way that was a substantial factor in causing CAP's injuries; and (2) that the BIC model J–26 lighter was not defective and unreasonably dangerous in a way that was a substantial factor in causing CAP's injuries.

Plaintiff moved for a new trial, contending (1) that the court erred in allowing BIC to introduce evidence of the failure of the Consumer Product Safety Commission to take action concerning the lighter that caused CAP's injuries, in violation of 15 U.S.C. § 2074(b); and (2) that the court erred by permitting BIC's counsel to argue that CAP's parents were to blame for his injuries and refusing to instruct the jury to disregard such arguments. Plaintiff argued that these two errors combined to mislead the jury and deny him a fair trial. The district court denied the motion in a one-sentence order. On appeal, plaintiff challenges this ruling, renewing the same two arguments.

II. ANALYSIS

A. Standard of Review

The district court's denial of plaintiff's motion for new trial is reviewed for abuse of discretion. Static Control Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 414 (6th Cir.2012). A new trial is appropriate when the jury reaches a “seriously erroneous result as evidenced by (1) the verdict being against the [clear] weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Id. (quoting Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir.2006)). An abuse of discretion may be established if the district court is held to have relied on clearly erroneous findings of fact, improperly applied the law, or used an erroneous legal standard. Mike's Train House, 472 F.3d at 405. The district court will be deemed to have abused its discretion only if the reviewing court is left with “a definite and firm conviction that the trial court committed a clear error in judgment.” Id.

To the extent the motion for new trial was based on an erroneous evidentiary ruling, the evidentiary ruling, too, is evaluated under the abuse-of-discretion standard. United States v. Morales, 687 F.3d 697, 701–02 (6th Cir.2012). The district court has broad discretion to determine questions of admissibility; an evidentiary ruling is not to be lightly overturned. Nolan v. Memphis City Schools, 589 F.3d 257, 265 (6th Cir.2009). An erroneous evidentiary ruling amounts to reversible error, justifying a new trial, only if it was not harmless; that is, only if it affected the outcome of the trial. Morales, 687 F.3d at 702;Nolan, 589 F.3d at 265.

Similarly, to the extent the motion for new trial was based on the court's refusal to give a requested jury instruction, the refusal is reviewed for abuse of discretion. Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 387 (6th Cir.2008). “A district court's refusal to give a jury instruction constitutes reversible error if (1) the omitted instruction is a correct statement of the law, (2) the instruction is not substantially covered by other delivered charges, and (3) the failure to give the instruction impairs the requesting party's theory of the case.” Id. (quoting Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 901 (6th Cir.2004)).

B. Evidence of CPSC's Failure to Take Action

Plaintiff's theory, in support of both tried claims—that the design of the BIC model J–26 lighter that caused CAP's injuries was in violation of federal law, and was defective and unreasonably dangerous under Kentucky law—is based largely on the contention that the lighter was not in compliance with a federal consumer product safety requirement, 16 C.F.R. § 1210.3(b)(4), because the child resistant guard was too easily removable. The regulation provides in relevant part:

(b) The mechanism or system of a lighter subject to this part 1210 that makes the product resist successful operation by children must:

....

(4) Not be easily overridden or deactivated.

16 C.F.R. § 1210.3(b). Focusing on this requirement, plaintiff relied on evidence that the design of the child resistant guard on the J–26 lighter had been changed in 2004 from a one-piece guard to a two-piece guard. While plaintiff conceded that the one-piece guard was not easily overridden or deactivated, he contended that the two-piece guard removed from the subject J–26 lighter was too easily removable and did not satisfy § 1210.3(b)(4).

BIC responded with evidence that the Consumer Product Safety Commission had never investigated, expressed concern about, taken any enforcement action with respect to, or found either J–26 model out-of-compliance with, the § 1210.3(b)(4) requirement. This evidence was introduced primarily through the expert testimony of Nicholas Marchica, a product safety consultant who was formerly employed by the Consumer Product Safety Commission (“CPSC”) from 1978 to 2005. Anticipating this testimony, plaintiff had made pre-trial motions in limine, asking the district court to exclude Marchica's testimony about inaction by the CPSC as barred by federal law. The motions were based in relevant part on 15 U.S.C. § 2074(b), which provides:

The failure of the [Consumer Product Safety] Commission to take any action or commence a proceeding with respect to the safety of a consumer product shall not be admissible in evidence in litigation at common law or under state statutory law relating to such consumer product.

15 U.S.C. § 2074(b).

The district court denied the motions in limine, relying on Morales v. American Honda Motor Co., 151 F.3d 500 (6th Cir.1998). In Morales, we construed § 2074(b) as only barring evidence that the CPSC had “ completely failed to act, as opposed to those instances where the CPSC engaged in activity that ultimately led to a decision not to regulate.” Id. at 513 (emphasis in original). The district court was satisfied that Marchica's anticipated testimony would include evidence that the CPSC had examined and tested samples of the BIC J–26 and declined to initiate an investigative action or recall because it concluded that the BIC J–26...