Cummins v. Bic Usa, Inc.

• Decision Date: 22 May 2009
• Docket Number: Civil Action No. 1:08-cv-00019-JHM.
• Citation: 628 F.Supp.2d 737
• Parties: David R. CUMMINS, Conservator for C.A.P., a minor, Plaintiff v. BIC USA, INC., Wal-Mart Stores, Inc., and McDonald's Corporation, Defendants.
• Court: U.S. District Court — Western District of Kentucky

Page 737

628 F.Supp.2d 737

David R. CUMMINS, Conservator for C.A.P., a minor, Plaintiff v. BIC USA, INC., Wal-Mart Stores, Inc., and McDonald's Corporation, Defendants.

Civil Action No. 1:08-cv-00019-JHM.

United States District Court, W.D. Kentucky, Bowling Green Division.

May 22, 2009.

Jeffrey L. Eastham, Greensburg, KY, Joseph H. Mattingly, III, Mattingly, Nally-Martin

& Fowler PLLC, Lebanon, KY, for Plaintiff.

Edward H. Stopher, Jeffrey W. Adamson, Boehl Stopher & Graves, Jennifer Kincaid Adams, Patrick Shane O'Bryan, Woodward, Hobson & Fulton, LLP, Philip M. Longmeyer, Dinsmore & Shohl LLP, Louisville, KY, Steven J. Kirsch, Murnane Brandt, St. Paul, MN, for Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, JR., District Judge.

This matter is before the Court on Defendant BIC USA's motion for summary judgment on the ground that Plaintiff's claims for product liability, breach of warranty, failure to warn, and violation of the Kentucky Consumer Protection Act are preempted by the Consumer Product Safety Act ("CPSA"), 16 C.F.R. 1210 (1993). For the reasons set forth below, Defendant's motion is DENIED.

I. FACTS

This case involves the tragic combination of a child and a cigarette lighter. On December 17, 2004, three-year-old C.A.P. was dropped off at his mother's apartment by his step-mother, and immediately went upstairs to his bedroom. A short while later, C.A.P.'s mother, Amy Cowles, heard him scream. She found him at the top of the stairs engulfed in flames from the waist up; he had, apparently, used a BIC Model J26 lighter to ignite his McKid's t-shirt. No one seems to know where the lighter came from, but the parties agree that the child-resistant guard (the metal band that a consumer must depress before rotating the spark wheel in order to generate a flame) had been removed. Plaintiff now brings suit against BIC, McDonald's, and Wal-Mart, the seller of the t-shirt, on various theories of liability. BIC moves to dismiss Plaintiff's claims on the ground that they are preempted by the CPSA.

II. STANDARD

To grant a motion for summary judgment, the Court must find that the pleadings, together with the depositions, interrogatories and affidavits, establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The rule requires the non-moving party to present "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

III. DISCUSSION

At issue here is whether the CPSA preempts Plaintiff's state law claims.¹ The preemption doctrine has its roots in the Constitution's declaration that "the Laws of the United States . . . shall be the supreme Law of the Land." U.S. Const., art. VI, cl. 2. Under that doctrine, state law is preempted by federal law in three circumstances: (1) where Congress has expressly stated its intent to preempt state law in a statute; (2) where Congress has impliedly preempted the field through regulation; or (3) where there is a conflict between the federal law and the state law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); State Farm Bank v. Reardon, 539 F.3d 336, 341-42 (6th Cir.2008). However, there is a presumption against preemption in areas of regulation typically left to the states. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) (explaining that to "avoid[] unintended encroachment on the authority of the States, . . . a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption").

Defendant argues that implied field preemption and conflict preemption apply here because the Consumer Product Safety Commission ("CPSC"), through its Congressionally-authorized regulations, "has fully occupied the field of child resistancy for disposable lighters." (Defendant's Reply, p. 4). BIC notes, for example, that the CPSC requires that lighters "shall be resistant to successful operation by at least 85 percent of the childtest panel" and that the child-resistant mechanism must "(1) Reset itself automatically after each operation of the ignition mechanism of the lighter, (2) Not impair safe operation of the lighter when used in a normal and convenient manner, (3) Be effective for the reasonably expected life of the lighter, and (4) Not be easily overridden or deactivated." 16 C.F.R. §§ 1210.3-.4. Plaintiff counters that his claims against BIC are not preempted because the CPSA expressly saves them and because there is no conflict between the state law standard and the applicable federal regulation. The Court considers these arguments in turn.

A. Field Preemption

Defendant's field preemption argument is based on the idea that CPSC's regulation of the field of lighter safety is so complete and "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); see also Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995); (Defendant's Reply, p. 4). This argument is a nonstarter. For one thing, Congress's intent to preempt state laws and regulations through the CPSA, under which the CPSC's disposable lighter regulations are enacted, is express not implied: "[w]henever a consumer product safety standard under this chapter is in effect and applies to a risk of injury associated with a consumer product, no State . . . shall have any authority either to establish or to continue in effect any . . . safety standard or regulation . . . unless such requirements are identical." 15 U.S.C. § 2075(a). More importantly, Congress has made clear that at least some common law tort claims are excluded from that preemption, i.e., "[c]ompliance with consumer product safety rules or other rules or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person." Id. § 2074(a); Geier v. American Honda Motor, Co., 529 U.S. 861, 868, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (finding that a "saving clause assumes that there are some significant number of common-law liability cases to save . . . . [and] reflects a congressional determination that occasional nonuniformity is a small price to pay for a system in which juries not only create, but also enforce, safety standards . . ."); see also 15 U.S.C. § 2073(c).

Defendant has not cited a single case in support his argument that Congress impliedly intended to preempt the entire field even though it expressly preempted part of the field and excluded state tort or product liability law from that express preemption. On the other hand, numerous courts have concluded that the CPSA does not completely preempt tort claims related to product safety. See, e.g., Greenawalt v. Philip Rosenau Co., Inc., 471 F.Supp.2d 531, 534 (E.D.Pa.2007) (finding that the CPSA does not completely preempt state law jurisdiction over all tort claims having anything at all to do with products regulated by the CPSA); Summerlin v. Scott Petroleum Corp., 324 F.Supp.2d 810 (S.D.Miss.2004) (holding that the CPSA was not intended to completely preempt state law tort claims against a disposable lighter manufacturer); Colon v. BIC USA, Inc., 136 F.Supp.2d 196, 205 (S.D.N.Y. 2000) (finding that "BIC does not argue that Congress intended the federal government to occupy the field of manufacture and safety of consumer products exclusively, and the language and history of the CPSA do not support such an assertion").² Accordingly, the Court has no trouble finding that as a matter of law and logic Congress's express intent to "save" certain state law actions precludes a finding that Congress simultaneously implied an intent to preempt a field that includes those claims.

B. Conflict Preemption

The only plausible basis for preemption in this case is that, as Defendant also argues, application of the state law would conflict with the federal requirements.³ See Geier v. American Honda Motor, Co., 529 U.S. 861, 869, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (explaining that a saving clause would not permit state-law tort claims in actual conflict with federal regulations and that usual preemption principles apply). Generally, conflict preemption occurs where "compliance with both federal and state regulations is a physical impossibility" or where the "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995). The question in this case—whether a standard imposed by state product liability law conflicts with the requirements of the CPSA—has prompted an array of answers from the...