The Sixth Circuit Court of Appeals has determined that a trial court applied the correct standard when admitting evidence of Consumer Product Safety Commission (CPSC) inaction on a safety feature during a jury trial in a personal injury suit involving a purportedly defective cigarette lighter. Cummins v. BIC USA, Inc., No. 12-5635 (6th Cir., decided August 14, 2013). The alleged victim was a 3-year-old boy who used a cigarette lighter he found on the floor of a pickup truck in which he was riding to loosen a button on his shirt. His father had apparently removed the child safety guard before the child found it and set himself on fire. The plaintiff’s theory was that the two-piece guard did not comply with the federal consumer product safety requirement because it was too easily removable. The jury rendered a verdict in favor of the defendant.

On appeal, the plaintiff argued that the trial court erred in admitting evidence that CPSC had not investigated, expressed concern about, taken any enforcement action with respect to, or found this cigarette lighter model out of compliance with the 16 C.F.R. § 1210.3(b)(4) deactivation or override requirement. The plaintiff argued that this testimony was barred by federal law which provides that CPSC’s failure “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.” The Sixth Circuit had previously ruled that this prohibition bars evidence only that 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.” Finding that the contested evidence fit into the latter category, the trial court admitted the testimony of a former CPSC employee as to certain action the agency had taken in relation to the cigarette lighter, which it ultimately found did not violate any safety rule.

While the plaintiff acknowledged the rule, he argued that this case was distinguishable. According to the plaintiff, the testimony here “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.” The Sixth Circuit held that this is not a precondition to admissibility. The rule is “intended to exclude those instances where the CPSC has completely failed to act, as opposed to those instances where the CPSC engaged in activity that ultimately led to a decision not to regulate.” According to the court, the evidence “is fairly characterized as evidence of ‘CPSC activity that led to a decision not to regulate.’”