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April 23, 2008

Texas Supreme Court Holds Defective Lighter Claim Preempted by Consumer Product Safety Act

In Bic Pen Corp. v. Carter, ___ S.W.3d ___ (Tex. 2008), decided April 18, 2008, the Texas Supreme Court held that a products liability design defect claim based on the use of a J-26 model BIC lighter was preempted by federal law. The case arose out of burns sustained by a six-year-old whose five-year-old brother accidentally set fire to her dress with the lighter. The jury found for the plaintiff, awarding three million dollars in actual damages and two million dollars in exemplary damages. The exemplary damages were reduced to $750,000, as required by Texas law. The Consumer Product Safety Commission adopted has adopted regulations requiring that disposal lighters be child-resistant and establishing a protocol for testing a lighter’s child resistance. Those regulations establish specific requirements for compliance. The J-26 lighter met the standards and the Commission issued a certificate of compliance for the lighter. The Consumer Product Safety Act contains both savings and preemption clauses. 15 U.S.C. §§ 2074(a) and 2075(a). The plaintiff argued that conflict preemption did not apply because of the savings clause. The Texas Supreme Court noted that two courts had considered the issue, with conflicting results. The Mississippi Supreme Court held in Frith v. BIC Corp., 863 So.2d 960, 967 (Miss. 2004) (en banc), that implied preemption should apply, while the United States District Court for the Southern District of New York rejected the preemption claim in Colon v. BIC, 136 F. Supp. 2d 196, 209 (S.D.N.Y. 2000). The Court considered and applied the policy analysis from Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008), in arriving at its conclusion that the plaintiff’s claim was preempted:

Although Riegel addressed an express preemption provision, its policy analysis is likewise applicable here. . . Both the MDA provisions in Riegel and the CPSA provisions at issue here require products to go through safety testing before being released on the market. In both cases, a careful analysis of the provisions reveal that the testing is not merely a safety floor, but a balancing of factors that ensure the product meets carefully prescribed safety standards. Particularly here, where the Commission rejected the idea of more stringent standards, we agree that, under Riegel, a common-law tort claim could impose duties that conflict with the federal regulatory scheme and therefore would "stand as an obstacle to the accomplishment and execution of the full purpose and objections of Congress."

MKS

April 23, 2008 | Permalink

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