Severe burns are some of the most serious injuries I see in my work as a personal injury attorney. Burns damage the skin, which is not only our first defense against infection but an important regulator of body temperature and hydration. Losing large amounts of it can land the patient in a burn ward for weeks or months, require skin grafts and ultimately scar the patient, sometimes even with surgeries. That’s why I was sad to read Cummins v. Bic USA, a lawsuit alleging that Bic USA made a defectively designed lighter that ultimately led to severe burns for a three-year-old child. David Cummins, the conservator for the minor, CAP, appealed to the Sixth U.S. Circuit Court of Appeals after a Kentucky jury found that the lighter was not defective or unreasonably dangerous in a way that caused CAP’s injuries. The Sixth Circuit upheld that verdict.
CAP, age three, found a lighter on the floor of his father’s truck as he was being taken back to his mother’s home. He brought it into his mother’s home and used it to loosen a button on his shirt, setting the shirt on fire. His mother stopped the fire and called an ambulance, but CAP ultimately spent three weeks at the hospital with burns to his chest and face, and underwent several skin graft surgeries. The lighter recovered from the scene was worn, and the local police chief testified that the child guard had been removed before it was turned over to police. CAP’s father, who is not Cummins, testified that he didn’t own this particular lighter, but did buy Bic lighters and typically removed the child guard. Cummins sued Bic for violations of Kentucky consumer protection laws and federal safety rules. The jury found for Bic.
On appeal, Cummins argued that the court erred by allowing Bic to introduce evidence of the federal government’s failure to regulate the lighter. He said this was barred by a federal law saying the CPSC’s failure to take action shall not be admissible evidence. But the Sixth Circuit had previously ruled that this law only applies to utter failure to regulate, not an investigation and eventual decision not to regulate, so the trial court permitted evidence about an investigation that ended without regulation. The Sixth Circuit upheld this choice, saying the admitted evidence did not concern a complete failure to regulate, and was thus admissible. It also upheld the trial court’s refusal to give a curative instruction after allowing Bic to argue that CAP’s parents were responsible for his injuries. The trial judge interrupted Bic’s closing argument to admonish them for overreaching, but didn’t give a similar jury instruction later. The Sixth found the remarks unnecessary and inappropriate, but not inaccurate or inflammatory enough to merit a new trial.
It’s unfortunate that this family will not be able to pursue this case further, particularly given the serious injuries suffered by CAP. Serious burns are life-threatening, literally scarring and often very painful; as a result, they are typically expensive to treat. As a lawyer, I know the expense can quickly get to be too much for an ordinary middle-class family, which is often the reason that families start to consider a defective products lawsuit. It’s not clear whether every court has the same approach to this CPSC-related law that the Sixth Circuit does; the Sixth noted that the rule is not subject to much litigation. I do not believe it’s good public policy for courts to soften clear Congressional dictates—particularly when full compensation to a person injured by a dangerous product is at stake.
Carey, Danis & Lowe represents clients who suffered serious injuries or lost a loved one because of defective and unreasonably dangerous products. If you’d like to talk to our experienced attorneys about your rights and your legal options, don’t hesitate to contact us for a free consultation. You can send us a message online or call 1-877-678-3400 today.
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