David Cummins v. BIC USA, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0228p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

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DAVID R. CUMMINS, Conservator for C.A.P.,

Plaintiff-Appellant, --

a minor,

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No. 12-5635

,

>

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v.

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PRODUCTS MANUFACTURING COMPANY, INC., --

BIC USA, INC. and BIC CONSUMER

Defendants-Appellees. N

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

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

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COUNSEL

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.

*

The Honorable Michael H. Watson, United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 2

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OPINION

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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

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 3

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

1

The testimony as to who found the lighter, and where, is unclear. Defendants argue that the

record evidence is so unclear as to be insufficient to support a finding that the lighter delivered to the

Police Chief caused the fire or that BIC manufactured the lighter that caused the fire. Defendants contend

this evidentiary void represents an independent basis for affirming the judgment, rendering harmless any

error the court may have made in admitting improper evidence or denying a requested instruction. Because

we hold the district court did not err in either of the challenged rulings, we need not reach defendants’

harmless error argument. For purposes of this appeal, the lighter admitted in evidence is presumed to be

the one that caused the fire.

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 4

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

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 5

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

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 6

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 complied with § 1210.3. Because the

evidence BIC would introduce was in the nature of activity leading to a decision not to

regulate, rather than a complete failure to act, the court deemed the evidence not barred

by § 2074(b). The court recognized that the challenged evidence of the CPSC’s failure

to take enforcement action with respect to the BIC J-26 lighter would not be conclusive

of liability but would be relevant and not inadmissible.

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”;

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 7

– 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 been 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

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 8

rule; and that the CPSC had not exercised its authority to recall J-26 lighters or taken any

other enforcement action in relation to the J-26. His testimony was thus allowed

notwithstanding 15 U.S.C. § 2074(b).

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 15 U.S.C. § 2074(b). The Morales decision

is the most authoritative ruling. In Morales, the trial court was deemed to have erred

when it applied § 2074(b) “with wooden literalness” to exclude evidence of a CPSC

report explaining why the CPSC denied a petition to regulate motorbikes. Morales,

151 F.3d at 512. The court held the report “was not evidence of the CPSC’s inaction;

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 9

rather, it was evidence of the CPSC’s action in denying the rule-making petition.” Id.

at 513 (emphasis in original).

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 § 2074(b) consisted

of the CPSC’s “articulated reasons” for withdrawing the proposed rulemaking and

deciding not to regulate. Id. at 580. The court explained why such evidence was not

inadmissible under § 2074:

[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 § 2074(b) was evidence of

2

Subsection (a) of § 2074 provides: “Compliance 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.” 15 U.S.C. § 2074(a).

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 10

activity—the CPSC’s report in Morales and the CPSC’s “articulated reasons” in

Johnston—in relation to the subject product’s specific alleged defect. Here, in contrast,

plaintiff contends that BIC’s evidence of CPSC’s involvement with the two-piece guard

on the J-26 lighter, specifically, amounted only to inaction and should not have been

admitted.

BIC notes in response that Congress, in § 2074(b), made inadmissible evidence

of the CPSC’s failure to act “with respect to the safety of a consumer product.”

Consistent with this language, BIC contends, Morales and Johnston construed § 2074(b)

as barring evidence of the CPSC’s inaction only where there has been a complete failure

to engage in activity on “a product.” The CPSC has not completely failed to act in

relation to the J-26 lighter; rather, it has promulgated numerous regulations, including

regulations governing the child resistant guard. See 16 C.F.R. § 1210. Because the

CPSC has not completely failed to act in relation to the J-26 lighter, BIC contends that

§ 2074(b), as construed in Morales, does not to bar Marchica’s testimony on the CPSC’s

failure to expressly determine the suitability of the two-piece guard. In other words, in

view of the CPSC’s substantial activity in regulating the J-26 lighter, BIC maintains the

evidence that no enforcement action has ever been instituted regarding a particular

feature of the product, the child resistant guard, is probative and was properly admitted.

Indeed, BIC’s position and the district court’s ruling are consistent with the

teaching of Morales and Johnston. Plaintiff maintains, however, that Morales 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, § 2074(b), as construed in Morales and Johnston, does not

establish such a specific precondition to admissibility. The “standard” established in

Morales and Johnston, which plaintiff concedes is applicable, recognizes that § 2074(b)

is intended “to exclude those instances where 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.” Morales, 151 F.3d at 513 (quoting Johnston, 967 F. Supp. at

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 11

580). The evidence introduced by BIC cannot be fairly characterized as a complete

failure by the CPSC to engage in any activity on the safety of the product, the J-26

lighter. And although the evidence does not amount to a report or statement of reasons

for deciding not to regulate, it is fairly characterized as evidence of “CPSC activity that

led to a decision not to regulate.”

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

§ 2074(b) was faithful to the governing teaching of Morales.

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 § 2074(b). The court was not asked to assess the

probative value or weight of the evidence, or the nature and strength of any inference

that might reasonably be drawn from it. Such matters were properly left for argument

by counsel for the parties and determination by the jury. Indeed, plaintiff’s counsel

cross-examined Marchica, highlighting the weaknesses in his testimony and

undermining its impact. Counsel also argued the significance of the evidence to the jury.

And the district court clearly instructed the jury that the CPSC’s failure to cite BIC for

violating product safety rules was merely a factor to be considered and not determinative

in relation to either of plaintiff’s claims.3

3

Section 2074(b), the only asserted grounds for excluding Marchica’s testimony, excludes

evidence only in relation to state law claims. It does not exclude evidence in relation to a claim under

federal law, such as plaintiff’s first claim, for knowing or willful violation of a federal consumer product

safety rule.

Marchica’s testimony regarding the CPSC’s inaction was relevant and admissible in relation to

plaintiff’s federal claim, to show BIC did not knowingly or willfully violate 16 C.F.R. § 1210.3(b)(4). It

follows that outright exclusion of the evidence from trial under § 2074(b) was never a proper option.

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 12

Thus, in ruling on the admissibility of the evidence, the district court used the

correct legal standard. The court is not shown to have committed a clear error in

applying it. Nor has plaintiff shown that admission of the evidence—the accuracy of

which is not contested—contributed to a “seriously erroneous result.” It follows that the

district court did not abuse its discretion in denying the motion for new trial.

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, Charles

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.

Rather, even if § 2074(b) were deemed to have barred some of Marchica’s testimony in relation to the

claim under Kentucky law, the most plaintiff could have hoped for was a limiting instruction—a limiting

instruction only slightly more limiting than the instruction that was given—advising the jury that they

could consider the evidence of the CPSC’s inaction only in relation to the claim under federal law and not

at all regarding the state law claim.

Considering the limited relief § 2074(b) could have afforded, the likelihood that the district

court’s failure to give such a slightly more limiting instruction, even if erroneous, contributed to a

“seriously erroneous result” warranting a new trial, is negligible.

4

Plaintiff identifies several instances where he says Mr. Stopher transgressed the court’s directive

in his opening statement and questioning of Amy Cowles. First, Stopher mentioned that the accident

would not have occurred unless CAP had been alone at the time. Second, Stopher alluded to Thor Polley’s

deposition testimony that he customarily removed the safety guards from his lighters. Third, Stopher

elicited testimony from Amy Cowles that she failed to discover that CAP had something in his pocket

when he returned from visiting his father. Obviously, none of these instances involved a direct “casting

of blame on others.” Each represents an allusion to the undisputed facts and circumstances that contributed

to cause the tragic accident. None of these instances represents a violation of the court’s directive, much

less the sort of flagrant misconduct that could be expected to unfairly influence the jury in its deliberations.

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 13

210, Trial tr. vol. VIII at 145-46, Page ID # 6086-87. The court ruled it was not

inappropriate for BIC’s counsel to bring out the former point; as to the latter point, the

court observed that BIC’s counsel had been successfully kept from “demonizing Thor

Polley or Amy [Cowles].” Id.

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-

No. 12-5635 Cummins v. BIC USA, Inc., et al. Page 14

sentence, admonishing him in the presence of the jury, and directing the jury to disregard

the offending reference, plaintiff contends the court’s failure to repeat the admonition

in the final jury instructions was reversible error.

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.