WASHINGTON, D.C. — (Mealey's) The U.S. Supreme Court on Jan. 13 denied a petition for a writ of certiorari filed by a man who claims that a child suffered burn injuries due to an allegedly defective cigarette lighter (David R. Cummins v. Bic USA Inc., et al., No. 13-574, U.S. Sup.).
David R. Cummins, conservator for a minor identified as C.A.P., sued Bic USA Inc. and Bic Consumer Products Manufacturing Co. Inc. on Jan. 8, 2008, in the Green County, Ky., Circuit Court. Cummins brought claims of product liability, breach of warranty, failure to warn and violation of the Kentucky Consumer Protection Act against the defendants.
The action was removed to the U.S. District Court for the Western District of Kentucky on Feb. 7, 2008.
On Dec. 17, 2004, then-3-year-old C.A.P. was found by his mother, Amy Cowles, engulfed in flames from the waist up. The child allegedly used a BIC Model J26 lighter to ignite his T-shirt. The parties agreed that the child-resistant guard had been removed from the lighter at the time of C.A.P.’s accident.
C.A.P. 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.
After nine days of trial, the jury deliberated for two hours and returned a defense verdict, finding that the lighter was not defective or unreasonably dangerous.
Cummins appealed to the Sixth Circuit U.S. Court of Appeals, contending that the trial court erred by permitting the defendants’ attorney to argue that the child’s parents were to blame for his injuries and refusing to instruct the jury to disregard the argument.
The appeals panel affirmed Aug. 14, noting that the trial court judge stopped the defense’s argument and held a sidebar in the presence of the jury.
“In fact, the district court’s sudden interruption of counsel’s argument midstream, 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,” Judge David W. McKeague wrote for the panel. Judges Michael H. Watson and Damon J. Keith concurred.
Cummins filed a petition for a writ of certiorari on Nov. 6. The high court denied the petition without comment.
Joseph H. Mattingly III of Mattingly Nally-Martin & Fowler in Lebanon, Ky., represents the plaintiffs. The Bic companies are represented by Edward H. Stopher of Boehl Stopher & Graves in Louisville, Ky.
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