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 for the Sixth Circuit
August 14, 2013
727 F.3d 504
Before: KEITH and McKEAGUE, Circuit Judges; WATSON, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 13a0228p.06. Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 1:08-cv-00019—Joseph H. McKinley, Jr., Chief District Judge. Argued: July 25, 2013. Decided and Filed: August 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.
McKEAGUE, 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
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,
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
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
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,
(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.
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
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.
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
Accordingly, the motions in limine were denied, and Marchica was allowed to testify at trial. In relevant part, his testimony included the following points:
- that the child safety standard for cigarette lighters,
16 C.F.R. § 1210.3 , had been in effect since 1994; - that BIC first obtained “qualification” from the CPSC for the J-26 lighter in 1995;
- that there is no published set of specific criteria defining the
§ 1210.3(b)(4) term, “easily overridden or deactivated“; that the CPSC was aware in June 1999 (after examining a J-26 lighter used by a two-and-a-half-year old to start a fire in Minnesota) that the child resistant guard could be removed from the lighter, but that the CPSC did not undertake an investigation and analysis of the ease of its removability; - that the CPSC had, in February 2001 and February 2002, collected two sets of BIC model J-26 samples for protocol testing;
- that CPSC compliance officials had toured a BIC production facility in the 2002-04 time frame to inquire about quality assurance;
- that the CPSC had broad authority to investigate any product safety problem that came to its attention;
- that the CPSC had issued “dozens upon dozens” of recalls of disposable cigarette lighters that lacked required child resistant safety features;
- that the CPSC had never questioned the design of the child resistant guard on the J-26 and no such recall or request for replacement had ever issued to BIC;
- that the CPSC had, in May 2006, (1) acknowledged receipt of BIC‘s report of 2004 child-safety test results concerning the two-piece child resistant guard design change in the J-26 lighter; and (2) confirmed that BIC had complied with the reporting requirements;
- that the CPSC‘s May 23, 2006 letter states that it does not constitute CPSC “approval of the lighters or of the reports,” but the letter allows BIC to continue to import J-26 lighters for distribution and sale in the U.S., as long as they fully comply with applicable safety regulations; and
- that the May 23, 2006 letter indicates the new information on the BIC J-26 lighter would be added to the CPSC‘s list of “qualified” lighters (i.e., lighters as to which manufacturers and importers have submitted complete documentation), and that the BIC J-26 remained on the list as of the last time Marchica had consulted it, in 2010.
In relevant part, then, Marchica‘s testimony established that the J-26 lighter was not unknown to the CPSC and that the CPSC had had occasion to qualify the J-26 and evaluate different aspects of it. His testimony established that the CPSC had not completely failed to act in relation to the J-26; that the CPSC had taken some actions in relation to the J-26; that the CPSC had not found the J-26 to be in violation of any safety
In connection with both of plaintiff‘s claims (i.e., for knowing or willful violation of a federal consumer product safety rule, and for design and manufacture of a defective and unreasonably dangerous product under state law), the district court instructed the jury on the significance of Marchica‘s testimony. In substance, the court advised the jury that the fact that the CPSC had never cited BIC for violating the Consumer Product Safety rules was not necessarily determinative; that it was a factor to be considered, but was not conclusive.
Aggrieved by the jury‘s adverse verdict, plaintiff moved for a new trial. Plaintiff‘s argument is encapsulated in one sentence:
Thus, the evidence at trial was uncontradicted that at no time prior to BIC‘s manufacture of the two-piece lighter used by CAP or even prior to CAP‘s injury had the CPSC even considered the two-piece design in any fashion, let alone any specific consideration of whether the child-resistant feature of the BIC model J-26 two-piece lighter is “easily deactivated or overridden” in violation of
16 CFR § 1210.3(b)(4) .
R. 188-1, Memorandum at 5, Page ID # 4193 (emphasis in original). Focusing on the specific alleged defect at the heart of the instant claims, and the evidence of the CPSC‘s complete failure to take any action specifically with respect to the ease with which the two-piece child resistant guard on the J-26 can be deactivated or overridden, plaintiff argued to the district court and argues on appeal that Morales is distinguishable and that Marchica‘s testimony should have been excluded.
There is little case law interpreting
In so ruling, the Morales court followed the lead of Johnston v. Deere & Co., 967 F. Supp. 578 (D. Me. 1997). In Johnston, too, the CPSC declined to act after having initially issued notice of proposed rulemaking to regulate operation of riding lawn tractors. In Johnston, like Morales, the evidence scrutinized under
[S]ection 2074(b) reflects Congress‘s recognition that the new Commission it had established would be confronting thousands of consumer products, most of which it could not pay any attention to, at least for a long while. Congress was concerned, therefore, that the creation of the CPSC and its new authority would not impede common law litigation in the states over unsafe products, as subsection (a) directs. The most reasonable reading of section 2074(b), therefore, is that it is referring to the complete failure by the CPSC to engage in activity on a product; that failure is not to be introduced into evidence as somehow implying that a particular product is not unsafe. Where the CPSC has engaged in activity, on the other hand, those activities are admissible even if they lead ultimately to a decision not to regulate, just as an ultimate decision to regulate is admissible under subsection (a). They are not “failure . . . to take any action.”
Johnston, 967 F. Supp. at 580 (footnotes omitted).2 This construction was cited with approval in Morales.
Plaintiff concedes that the standards discussed in Morales and Johnston are applicable but contends the instant facts are distinguishable. That is, plaintiff acknowledges that evidence of CPSC activity in relation to a product is admissible but maintains that evidence of inaction by the CPSC is not admissible. In both Morales and Johnston, the evidence deemed admissible despite
BIC notes in response that Congress, in
Indeed, BIC‘s position and the district court‘s ruling are consistent with the teaching of Morales and JohnstonMorales and Johnston are factually distinguishable. He argues that Marchica‘s testimony, unlike the evidence allowed in Morales and Johnston, did not refer to a report or statement of reasons explaining the CPSC‘s decision not to take action specifically in relation to the two-piece guard. Yet,
Accordingly, we conclude the district court did not abuse its discretion by allowing Marchica to testify concerning the CPSC‘s activity in relation to the J-26 lighter and its undisputed failure to take any enforcement action in relation to the J-26 lighter and the one-piece or two-piece child resistant guard. The court‘s application of
Plaintiff argues that because Marchica‘s testimony falls short of establishing that the CPSC ever passed specifically on the ease with which the two-piece guard could be deactivated or overridden, it does not necessarily justify an inference that the two-piece guard was approved or was safe. This is true. In fact, the evidence of CPSC‘s most recent activity on the J-26 lighter, the May 23, 2006 letter, clearly states that it is not to be considered “an approval” of the lighter. But the question the district court was asked to decide was admissibility under
C. Refusal to Give Curative Instruction
Plaintiff also contends the trial court erred when it refused to give the jury a curative instruction following BIC‘s counsel‘s repeated improper suggestions that CAP‘s parents were to blame for his injuries. In a pre-trial ruling on one of plaintiff‘s motions in limine, the district court had ruled that the fault of others was not relevant to the question whether the child resistant guard on the J-26 lighter could be easily deactivated or overridden. The court directed BIC‘s counsel to make sure that his interrogation and/or argument did not cast blame on others. Plaintiff contends BIC‘s counsel, Edward Stopher, repeatedly violated this directive during trial.
None of the alleged transgressions was flagrant.4 Yet, at the close of proofs, plaintiff‘s counsel asked the court for an instruction admonishing the jury not to consider the fault of any person other than BIC. The court denied the request. The court explained that the fact that “somebody” removed the child resistant guard from the lighter was relevant, “but who it was that removed it was not necessarily relevant.” R.
Then, during closing argument, Mr. Stopher made the misstep that is the focus of plaintiff‘s present claim. Plaintiff contends that Stopher “castigated” CAP‘s father in the following remarks:
Presumably, if this was the lighter, presumably that lighter was disabled by Thor Polley. He made an intentional adult choice to disable that lighter. And by his testimony, he disabled it not because it is easy to deactivate it or override it, he disabled it because he said it made it easier to light.
It is undisputed that no one can make a fool-proof lighter. No one based on the evidence that we have heard can make a Thor-proof lighter. With this intent—
R. 212, Trial tr. vol. IX at 21, Page ID # 6145. At this point, the district court interrupted Stopher and admonished him for implying Polley was the “fool” who “presumably” removed the guard. The court then turned to the jurors and advised them to disregard Stopher‘s reference to Polley:
Ladies and gentlemen, I have in this trial cautioned Mr. Stopher many times not to try to demonize the parents in this accident. An issue in this case is whether or not somebody removed this. We don‘t know who did it. It doesn‘t really matter who did it. The fact that matters most to you is that somebody did it.
Id. at 22, Page ID # 6146. Plaintiff‘s counsel was not satisfied with this admonition. At the end of closing arguments, counsel renewed his request for an “additional instruction on the jury not being able to blame other parties.” Id. at 81, Page ID # 6205. Again, the district court denied the request.
It is this refusal that plaintiff now contends was an abuse of discretion so grievous as to warrant a new trial. That is, even though the district court took the unusual measure of sua sponte interrupting Mr. Stopher‘s closing argument mid-
Granted, implying that CAP‘s father was “foolish” for presumably removing the child resistant guard from the lighter that presumably caused the fire was unnecessary and inappropriate. Stopher‘s argument—to the effect that a lighter manufacturer simply cannot design a lighter that is functional and safe and defies modification by an adult who wishes to disable a safety mechanism—could have been made more discreetly than it was. But Stopher‘s various comments were neither inaccurate nor inflammatory. And Stopher was duly chastened for his indiscretion by the district court—abruptly and directly. In fact, the district court‘s sudden interruption of counsel‘s argument mid-stream, to scold him in a sidebar and contemporaneously admonish the jury to disregard the inappropriate remark, was arguably more effective than a reiteration of the standard final instruction that lawyers’ arguments are not evidence.
Considering the elements plaintiff must meet to merit a new trial based on the court‘s refusal to give a requested jury instruction, plaintiff‘s argument falls short. Yes, (1) the district could have given the requested instruction as a correct statement; but (2) the instruction appears to have been substantially and adequately covered by the court‘s contemporaneous curative admonishment and instruction; and (3) counsel‘s misconduct was not so grievous that the refusal to give the instruction could reasonably be deemed to have materially prejudiced plaintiff‘s theory of the case. See Taylor, 517 F.3d at 387. The district court‘s refusal to give the requested instruction was not, therefore, an abuse of discretion. It follows that the district court‘s denial of plaintiff‘s motion for new trial on this ground was also not an abuse of discretion.
III. CONCLUSION
Neither of the asserted claims of error presents grounds for disturbing the judgment. Accordingly, the district court‘s denial of plaintiff‘s motion for new trial is upheld and the judgment in favor of BIC is AFFIRMED.