Glover v. BIC Corp., Nos. 91-35793

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BEEZER, NOONAN and TROTT; TROTT
Citation987 F.2d 1410
Parties38 Fed. R. Evid. Serv. 183, Prod.Liab.Rep. (CCH) P 13,408 Patsy S. GLOVER, Personal Representative of the Estate of Roy Guy Weaver, (deceased), Plaintiff-Appellee, v. The BIC CORPORATION, Defendant-Appellant. Patsy S. GLOVER, Personal Representative of the Estate of Roy Guy Weaver, (deceased), Plaintiff-Appellant, v. The BIC CORPORATION, Defendant-Appellee.
Docket NumberNos. 91-35793,91-35584
Decision Date26 February 1993

Page 1410

987 F.2d 1410
38 Fed. R. Evid. Serv. 183, Prod.Liab.Rep. (CCH) P 13,408
Patsy S. GLOVER, Personal Representative of the Estate of
Roy Guy Weaver, (deceased), Plaintiff-Appellee,
The BIC CORPORATION, Defendant-Appellant.
Patsy S. GLOVER, Personal Representative of the Estate of
Roy Guy Weaver, (deceased), Plaintiff-Appellant,
The BIC CORPORATION, Defendant-Appellee.
Nos. 91-35793, 91-35584.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Sept. 18, 1992.
Decided Feb. 26, 1993.

Page 1413

Bernard Jolles and Evelyn Conroy Sparks, Jolles, Sokol & Bernstein, Portland, OR, for plaintiff-appellee-cross-appellant.

Robert J. Stumpf Jr., Bronson, Bronson & McKinnon, San Francisco, CA, and Steven O. Rosen, Miller, Nash, Wiener, Hager & Carlsen, Portland, OR, for defendant-appellant-cross-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BEEZER, NOONAN and TROTT, Circuit Judges.

TROTT, Circuit Judge:

BIC Corporation appeals the entry of judgment resulting from a jury verdict in favor of plaintiff Patsy S. Glover for $36,048 in general damages and $1,300,000 in punitive damages. Glover's claims arose from the death of her father allegedly caused by a defective BIC lighter. We have jurisdiction under 28 U.S.C. § 1291 (1988), and we affirm in part, reverse in part, and remand for a new trial.

Plaintiff Patsy S. Glover, as personal representative of the estate of her father Roy G. Weaver, brought suit against BIC for injuries suffered by her and her siblings from the death of their father. Glover's claims were grounded in both negligence and strict liability, including manufacturing defect, design defect, and defect due to a failure to warn.

At trial, Glover presented evidence showing Weaver, an alcoholic who had a blood alcohol content of .35 at the time of his death, was killed in a fire which started in his shirt between his chest and waist. His BIC lighter, which was in his shirt pocket, had ruptured in the fire. Weaver was survived by four children, plaintiffs herein.

Glover produced expert testimony from Dr. John Geremia, Chairman of the Department of Mechanical Engineering at the United States Naval Academy. Geremia attributed the source of the fire to the lighter, which he claimed had remained lighted, "afterburned," after Weaver used it and then returned it to his shirt pocket. Geremia testified the afterburn was caused by microscopic brass debris, tailings from BIC's manufacturing process, which, when left inside the body of the lighter, caused the lighter to continue to leak butane and to remain lighted even after Weaver had released the jet-valve lever.

BIC produced evidence suggesting Weaver was the victim of a cooking accident. Testimony showed Weaver was found badly burned and lying near the kitchen sink in which the water was still running. The left front burner on the electric stove was found still on and red hot, and bacon and other foodstuffs were found on the stove. Furthermore, BIC attempted to introduce testimony that several years prior to the deadly fire, a friend of Weaver had found Weaver at home asleep in a room full of smoke, apparently intoxicated. The evidence of that prior event was excluded by the district court along with testimony from local Fire Chief Newell that he had responded in the past to two other emergency calls involving fires at Weaver's residence. Newell would testify that in both instances Weaver was present, intoxicated and apparently unable to respond to the emergency situation without assistance.

BIC also complained Geremia's unilateral disassembly and examination of the lighter, and plaintiff's counsels' employees' later action of placing the lighter parts in an "oily" box, spoliated the lighter before BIC's expert, Paul Labrum, could examine it. Labrum, nevertheless, did examine the lighter and testified the lighter did not cause the fire.

At the close of the evidence, the court dismissed Glover's claims based on design defect and defect due to a failure to warn, but submitted the case to the jury on both the negligence and manufacturing defect claims. The jury returned a verdict in favor of the plaintiff, and awarded her $36,048 in general damages and $1,300,000 in punitive damages. The court entered judgment accordingly, and denied BIC's motions for judgment notwithstanding the verdict and new trial. BIC timely appealed, and Glover timely cross-appealed.

Page 1414

Specifically, BIC contends the judgment must be reversed because (1) an adequate warning on the product precludes the finding of a defect as a matter of law; (2) Glover failed to produce sufficient evidence of a standard of care; and (3) Glover's alleged spoliation of the evidence prejudiced BIC's defense. In the alternative, BIC argues the court should vacate the award of punitive damages. Finally, BIC seeks a remand of the matter for a new trial on all liability issues because of alleged erroneous rulings on key evidentiary issues. Glover cross-appeals the dismissal of its design defect claim.


Defendant BIC argues that the district court's striking of Glover's inadequate warning claim precluded a finding that the lighter was defective or unreasonably dangerous. The question of whether an adequate warning on the lighter would preclude strict tort liability in this case is a question of law. Questions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The substantive law of the state of Oregon applies to this diversity action. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

In Oregon, a "product liability civil action"

means a civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of: (1) Any design, inspection, testing, manufacturing or other defect in a product; (2) Any failure to warn regarding a product; or (3) Any failure to properly instruct in the use of a product.

Or.Rev.Stat. § 30.900 (1991). The language adopted by the Oregon legislature describing strict tort product liability actions closely mirrors the language found in § 402A of the Restatement (Second) of Torts (1965):

(1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer is subject to liability for physical harm or damage to property caused by that condition, if:

(a) The seller or lessor is engaged in the business of selling or leasing such a product; and

(b) The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased.

(2) The rule stated in subsection (1) of this section shall apply, even though:

(a) The seller or lessor has exercised all possible care in the preparation and sale or lease of the product; and

(b) The user, consumer or injured party has not purchased or leased the product from or entered into any contractual relations with the seller or lessor.

(3) It is the intent of the Legislative Assembly that the rules stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965).

Or.Rev.Stat. § 30.920 (1991). "Unreasonably dangerous defects in products come from two principal sources: (1) mismanufacture and (2) faulty design, including failure to warn as a design defect." Harris v. Northwest Natural Gas Co., 284 Or. 571, 576, 588 P.2d 18, 21 (1978) (emphasis supplied). BIC's argument that a product with an adequate warning is thereby immune from claims grounded in strict liability entangles the several disjunctive strands of strict tort products liability.

An adequate warning will preclude strict liability when the claim brought by a plaintiff is based on a failure to warn: "[A] product, although faultlessly made, may nevertheless be deemed 'defective' under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given." Anderson v. Klix Chemical Co., 256 Or. 199, 202, 472 P.2d 806, 808 (1970) (emphasis supplied) (quoting Canifax v. Hercules

Page 1415

Powder Co., 237 Cal.App.2d 44, 53, 46 Cal.Rptr. 552, 558 (1965)); see also Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir.1977) ("If a product lacks warnings or instructions as to its proper and safe use and this absence renders the product 'defective,' its manufacturer is liable for any proximately caused injuries." (emphasis supplied)). Comment j of the Restatement, as adopted by the Oregon Legislature, confirms this approach:

j. Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.


Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.

Restatement (Second) of Torts § 402A cmt. 3 (1965).

Although an adequate warning will prevent the reliance on a theory of strict liability in a failure to warn defect case, such a warning will not make safe a product with a manufacturing defect as alleged in this case. The distinction between manufacturing defects and defects due to lack of warning has been recognized by the Oregon courts. In Gunstone v. Blum, 111 Or.App. 332, 825 P.2d 1389, rev. denied, 313 Or. 354, 833 P.2d 1283 (1992), the plaintiff sued the manufacturer of a mini drill press in which he had injured his hand. Plaintiff claimed the manufacturer was strictly liable for the injury based on the machines's...

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