The role of the Consumer Product Safety Commission (CPSC) in product liability cases is often a two-sided coin.  Evidence of a recall is sometimes allowed to establish notice of a defect though the standard to invoke a recall of a product is not the same as proving a design, manufacturing or failure to warn claim in a court of law.

The flip side, the “failure” of the CPSC to recall a product presents other evidentiary issues.  The failure of the CPSC to take any action or commence a proceeding with respect to the safety of a consumer product is inadmissible in a products liability action by statute (15 USC  2074(b)).

So what does “Failure” mean?

On August 14, 2013, the 6th Circuit addressed “failure” in an unfortunate fact situation where a 3 year old boy (identified as CAP in the opinion) incurred severe burn injuries.  After finding a BIC (model J-26) cigarette lighter on the floor of his father’s pick-up truck, CAP lit his shirt on fire.  The evidence also established that the father had removed the safety guard but the court dealt with that issue in another part of the opinion.  The additional fact that CAP was being dropped off by his step-mother after a non-custodial parent visit adds additional drama to the case.

In Cummins v. BIC, USA, Inc., the Appellate Court reviewed a jury verdict in favor of BIC against claims that BIC violated the Kentucky Consumer Protection Act and the CPSC’s Safety Standard for Cigarette Lighters (16 CFR § 1210).  The jury found the model J-26 was neither  defective in design nor unreasonably dangerous.  The plaintiff appealed contending, among other issues,  that allowing BIC to introduce evidence of the failure of the CPSC to take action concerning the lighter that caused CAP’s injuries in violation of 15 USC 2074(b) was reversible error.

Trial evidence established that the child resistant guard on the J-26 had been changed in 2004 from a one piece to a two piece guard.  Plaintiff contended that the two piece guard was too easily removed and did not satisfy the CPSC’s Safety Standard for Cigarette Lighters.

BIC responded with evidence that the CPSC had never investigated, expressed concern about, taken any enforcement action with respect to, or found either J-26 model out of compliance with Federal requirements.  This evidence was elicited through the expert testimony of Nicholas Marchica, a product safety consultant and an ex-CPSC employee from 1978 to 2005. Marchica’s testimony, set forth in detail in the opinion, established that the J-26 lighter was not unknown to the CPSC and that the CPSC had had opportunities to qualify the J-26 and evaluate different aspects of it.  The trial court advised the jury that the fact that the CPSC had never cited BIC for violating the CPSC’s cigarette lighters regulation was not necessarily determinative; that it was a factor to be considered , but was not conclusive.

Plaintiff’s argument on appeal becomes nuanced at this point.  Plaintiff acknowledged that evidence of CPSC’s activity in relation to a product is admissible but maintained that evidence of inaction by the CPSC is not admissible.  In response, the 6th Circuit pointed out that there was little case law interpreting the evidence standard at issue in this case.  The court declared that the law that did exist barred such evidence only where the CPSC completely failed to act.  The Court also pointed out that the trial court decided only upon admissibility of the evidence of Marchica and not the weight of such evidence.

Takeaways

Under Cummins, evidence of activity by the CPSC that led to a decision not to regulate is not a failure to act and such evidence is admissible.

Another takeaway: The market for former CPSC employees to become expert witnesses is bullish.

Case is Cummins v. BIC USA,  Inc., (6th Cir.) (August 14, 2013).