and mr manley and the other appellants if you serve time tell me what you've asked for so minute if you would please yes judge we have requested three minutes for a bottle p please the court mr stover this case involves a van three year old child who was severely burned when he ignited his closing with a cigarette lighter after the child safety mechanism was removed from the lighter the child's guardian sued big usa who was the manufacturer of the cigarette lighter involved claiming that the lighter was on recently dangerous because the child resistant feature on the lighter was easily deactivated or overridden in violation of federal cigarette lighter safety standards after a jury found for big in the western district of kentucky the conservator now respectfully requests this court to vacate the jury's verdict and remand the case for a new trial the primary issue for consideration by this court is whether the trial court erred in permitting highly prejudicial testimony from a former top official of the consumer products safety commission to the effect that the commission the agency charged with regulating the safety of cigarette lighters had never cited big for a deficiency in this design had never requested big to redesign the lighter and had never issued a recall of the particular product that was involved thus implying that the commission had determined that the cigarette lighter in question in the design of that lighter and its child safety mechanism was safe and non defective mr mattingly let's get right to the heart of this twenty seventy four b claim it it appears to me that nobody in this case has focused on the specific language of the exclusion itself where it says shall not be admissible in evidence in litigation and then it goes on to say at common law or under the state's statutory law relating to such consumer product this statute on its face doesn't exclude any evidence about the failure of the commission to act or not act in connection with the federal claim in this case or you're bringing a federal claim and you're bringing a state claim arguably this statute depending on how you interpreted which is the source of all the argument in the briefs might be might limit that evidence under the state the state law claim or the state common law claim but it doesn't limit it under the federal clean well judge mckeague two things  you're right there were both state and federal claims that were asserted at the trial of this action and even if arguably the statute does not apply to cases that are brought under the federal clean that evidence still has got to be relevant it's still got to be admissible under rule four zero two and four zero three and in this case where there was no activity no evidence of any activity by the commission with respect to this specific product defect even if you look and make a relevance argument outside the space of two thousand and seventy four well the argument with respect twenty seven before b does go to relevance because if there is no activity by the by the commission with respect to this specific product defect then any evidence that's brought in to try to infer that there has been approval by the commission is not relevant because there is no basis for the connection between that evidence and the product if it involved but let me put it another way your whole relevance argument is predicated on this clause that i just read you under seven hundred twenty seven four b is not the relevance argument is predicated under twenty seventy four b that says that if the michelin x if twenty seventy four b doesn't apply least with respect to the federal claim then do you have an argument left sure because it should not have been admitted under the federal claim scheme it should not have been admitted under the state calling and it should have been admitted at all even if twenty seventy four was not applicable because it would not have passed the relevancy provisions of for zero two and four zero three and even if it was admissible for the limited purpose of the federal claim then the plaintiff would have been entitled to a limiting instruction advising the jury that they could not consider that same evidence on the state law claim instead the instructions in this case advise the jury even in the state kline that they should consider that evidence even though it was not determinative that it was a factor that they should consider so you objected to the instruction overall but you did not object to it on the basis of the language of the statute you didn't you didn't ask for a specific limiting instruction that says even if it is admissible under the federal claim it's not admissible under the state likely we had actually asked that that it not be admissible under either client understand it and the court ruled that it was going to be admissible for all purposes and at that point we did ask the court in both of those instructions to at least advise the jury that that that evidence was not  of the issue that that that it was it was it was not got that instruction we did get that instruction that we did get it that instruction but the specific issue though bottom line do you agree or do you disagree that it least in terms of the language of twenty seventy four be subject to your separate relevance argument it that there is nothing in twenty seventy four b that precludes the feel any evidence of the feel or the commission to act to be utilized in connection with your federal law claim if it's relevant and i would agree that twenty seventy four b does have language that says that that is why why would why would congress pass statute that deals with the failure of the commission to take any action or commence any proceeding if by definition it's always it's it's not relevant and it well it's not it's not by definition not relevant because if if you if you look at the evidence in this case where there is no activity at all in regard to the consumer defect in question if you look back at the honda case i mean there was no action taken  there no affirmative action taken there but there was activity that was directed to the specific product defect involved in the honda case you understand the statute doesn't extend itself to specific product defects the statute extends itself to consumer products not not specific components of products not defects and products i understand that statute is not that specific but if you look at what congress must have meant by that statute in looking for example in the appendix to the briefs big has provided to the court a copy of a recall notice of a of a lighter that was recalled because that lighter did not have a child resistant feature at all it took two years for the c p s eat issue that recall notice and if a child had been injured by that defective product and a lawsuit filed against the manufacturer of that product within that two years before the recall was issued under bix interpretation of twenty seventy four b that manufacturer would have been able to put on proof that this product must not have been defective because at this point the commission has never recall to never cited the manufacturer never asked for redesign of that product surely congress was not intending back twenty seventy four b to permit a manufacturer of that which clearly was a defective product to rely upon the shield of c approval to defend a product liability claim twenty seventy four b in order to to to further the purpose of the consumer product act has to be interpreted as not providing a manufacturer a shield behind c p s the non action where there's been no consideration of the particular product defect at issue otherwise that defective product that was recalled two years after it started to be sold would have been able to rely on the powerful evidence that if there was something wrong with this product the c p s they would have done something about it by now and that's the interpretation that bit wants to place on twenty seventy four b and i understand that the statute does not say as to that specific product defect but it certainly can be read broadly enough and when considering what evidence has got to be relevant to the issues that are involved in a product defect case to in to two to go to that particular issue to go to the issue of the product defect itself because otherwise you get this powerful evidence and in that case where the product recall was made two years after it started to be sold the manufacturer gets this huge benefit by trying to raise to be shielded by the commission's non action before a jury trying to determine whether a product is defective or not and surely congress didn't intend twenty seven hundred b to be a shield for a manufacturer of a defective product in that regard and i understand that the language of twenty seventy four b is not crystal clear every court this court in the court in maine who interpret it indicated that it was in many respects and big u s but the only interpretation that appears to be consistent with the purpose of the consumer protections the consume the protection act would be one that would not provide the manufacturer of a defective product a shield behind the non action of the c p s and that's what we had here we had a circumstance where the commission had never even considered the product effected issue and yet bit was able to introduce evidence that the jury should presume that the product was no defective because if it had been then the commission would have done something by the end do you have any case that addresses or uses language like you're using it that says the commission not only has to consider the consumer product but has t of address the specific consumer product defect that's at issue in the lawsuit i have no case that says that your honor and as far as i know the only two cases that deal with twenty seven before with any substance are the two cases that are relied upon analyzed by us in these cases stronger in this case in particular where the standard is if error was made if this court must be fairly assured that that error did not affect the outcome of the jury the outcome of the case then certainly in this case where evidence as powerful as that that had no  basis there there simply was no activity by the c p s see with respect to that product and if you interpret twenty seven for that broadly then certainly that's not consistent with what the consumer product act is intended to protect official in that i believe at one point he was the deputy commissioner he was not the commissioner at the time that this these actions took place and actually was was expressing opinions based upon information that had been given to him vic not form an independent review of the commission's record itself and how long have you been gone from the commission by the time of the trial yeah it's my recollection he had been gone by that time person eight or ten years and had spent his his career there after consulting with the companies that previously he had regulated as deputy commissioner of the commission and yet he poured in to offer opinions on current meaning of please the court mr mattingly your honour's this case involves the challenge of a big lighter in its design particularly with regard to the design of the child resistant safety shield the matter was tried for two weeks before a jury and during that two weeks we heard evidence from some twenty five different witnesses experts on both sides and the jury determined after that trial that the product was not unreasonably dangerous and that it did not violate the c p c section twelve ten point four and that it was not easily deactivated or overridden the contention in th appeal is that the judge improperly allowed two or three questions of mr marc cica a former acting executive director of the c had only been retired from that commission for a relatively few number of years two to four is my recollection and mr maher cica simply stated based upon records nor had there been any recall or request that they redesigned the child safety shield in this case judge mckinley considered motions to exclude that evidence on two occasions before the trial specifically it was briefed and that a pretrial conference it was orally argued and on both occasions judge mckinley ruled first in an opinion on the topic and secondly readopted that opinion in a ruling shortly before the trial that this evidence was admissible the same arguments that had been made to this court were once again submitted to judge mckinley in post trial motions for a new trial and they were denied again it was not something that judge mckinley did not consider and that was not presented to him as has been presented to this court today but nevertheless your honour's our position was then and is now that there was indeed action by the c p s see with regard to disposable cigarette lighters in the testimony of mr maher cica again you want to define action in action as broadly as possible he wants to define it as narrowly as possible already discussed with mr mattingly his statements about they'd never taken action with respect to the specific product defect that's of course no you seem to argue that if they've ever considered any disposable cigarette lighter anywhere any time that means they've they've consciously decided not to regulate the version of the cigarette lighter here at issues that th that can't be any more correct than his argument well sir with all due respect i think the facts in this case go beyond that simple broad application in fact not only did of the dangers of cigarette lighters to little children the c p s the spent some nine years holding hearings accepting position papers doing their own investigation and in one nine five january of one thousand nine hundred within just a few months of the effective date of those regulations big submitted all of the reports including example our lighters specifications the drawings and the child testing reports required by that chapter under twelve ten specifically in early one nine hundred ninety five the c issued a document in which they accepted big filings as complying with all of the sections of twelve ten including the particular section they checked it and it's the appendix they checked that the big lighter that was submitted in one nine hundred ninety five met the requirement that it not be easily deactivated or overridden that was the one piece of the two piece that was the one piece and accordingly so let's assume you changed it from the one piece guard to the two piece guard and for whatever reason the two piece guard was completely ineffective your honor not asking you to concede that but i want you to assume that for purposes of the question you seemingly are saying well gee they looked at you're either saying they looked at disposable waiters in general so they're for ok or they looked at disposable lighters with a one piece guard so therefore we're ok his argument is wait a minute you change the guard they hadn't looked at the one with the to be scared so how do we address that the answer to that is a factual matter that was proven at trial what was proven in a trial was that under sixteen c f r twelve point one four a the regulations provide that when the manufacturer develops a lighter design that was submitted and it subsequently develops quote another model of a lighter that differs from the first model only but differences that would not have an adverse effect on child resistance when we switched the design from the one piece to the two piece it had absolutely no effect adversely on the child resistant characteristics of the lighter there was no evidence presented by anyone that that was not true so watch it do it we did it because of the materials in the one piece where it was affixed at the top it was a low carbon steel design because of the complexity of the manufacturing of the part and the low carbon steel had to be tempered to create the necessary hardness there were some inconsistency some were too easy to depress some were too hard to depress and in order to cure that design specification issues to get more conformity we switched to the two p which was affixed in the chim the plastic body of the lighter and not a fixed at the top the specifications for deflection that is the amount of distance that the child resistant shield had to be pushed down and the force to push it down remains the same between the one piece and the two p's so you're saying that the plaintiffs didn't offer any evidence that addressed itself to the switch in design making it more easy to disengage or disable the well that was always their contention and they attempted to prove that the the change between the one piece and the two and the two piece change the deflection distance nor the amount of force those were the child resistant characteristics that were identical in both ends now they argued with the jury obviously that they think that the one piece was a better design but in fact no one said that we should have resubmitted testing when we went to the two piece because the deflection distance and the force were different maybe i'm missing something here which demonstrates fact that i don't smoke when i use lighters this deflection distance and the force are features that i'm assuming that make it so that a child can actually activate the lighter yes the claim here doesn't go to that as i understand the claim goes to whether that feature whatever it was was easily removable and i thought their claim was that it was easier to remove the two piece design than it had been to remove the one piece design that was certainly  contention now did they offer evidence on that they did offer evidence on that and we offered evidence you say there's no evidence that this violated the very rule that they are trying that they're saying you violated which was you made a change that made it easier to take it off as opposed to you made a change that made it easier for the a child to light the light your honor the difference is twofold number one we are talking about adults as compared to children the difficulty for a child to remove or to light the light are between the two peas in the one piece it was more difficult for toward children it is it is geared toward children and the contention here was that they wanted us to make a lighter that was fail safe that are in the dope with an intent and a two could not defeated or deactivated no one has ever been able to design such a lighter that was undisputed an adult with a tool can deactivate override every cigarette lighter on the market you know with all due respect mr stover it seems to me you just keep redefining the law and the claims every time we ask you questions about this they might have liked the law to be that it that it's failsafe but they're claiming that this letter violates the regulations that not be easily overridden nerdy activity that's a far cry from being failsafe or it can't possibly be deactivated well the fact of the matter is your honor that they made that argument and presented the evidence to that effect we countered that with proof that it is not easily do you activated or overridden and the jury accepted that evidence but got that but you're ignoring their underlying claim here that the scales were improperly tipped by the admission of this how do you say his name or more chief of march opinions about whether or not there had been any regulatory activity with respect to this product so you first said product was any disposable lighter then you reluctantly narrowed it down to maybe the typical later but it seemed to be that we only narrowed it down to the one piece design well your honor how do we address the specific question here not the rephrasing of yours the specific question about whether there was a here in allowing this testimony in connection with the two piece design in the year two thousand and six your honor we proposed to the c p s see a slight reduction in deflection distance and force we submitted again testing in the year two thousand and six on the two piece and that was accepted by the c p s see if they're vapid in what form except it in the form of the letter that we received that is in evidence in two thousand and six in which the c p s c accepted our specifications the exemplars the child testing the basically knowledge c well sir i think it's more than that they did not but also more when they did that occur before or after this incident it was two years after the accident and some six years before the trial and there was no finding by the c p s see that we had improperly submitted data or that we had withheld data just out of  curiosity still make this two piece design same one today as it has ever been found by the commission to my late and he saved and as the record in this case reflects big controls has a market share of eighty five percent we make and sell two hundred fifty million of these lighters per year and cents the time of the submission in two thousand and six there have been well over one and a half billion lighters sold with this design it is still the same design today what evidence in the record leads you to believe that the jury found that this was not your client's lighter used to start a fire there certainly there was clear evidence that there were no clear chain of custody of this lighter and are ignorant or was it was no inner organs or no and as a result it's equally consistent that the jury the term that the lawyer that was involved in this incident was not a bic lighter i see that my time was appreciate thank you your honors in rebuttal i would like to make about three points one is the argument that mr stover makes that under twelve ten point fourteen that if the modification and the lighter design did not affect the proficiency of the lighter to two to keep the child from operating it that there was no new reporting that was required and mr stouffer ignores section b of that very same regulation a says you don't have to go through new qualification tests to show the proficiency of the lighter to prevent operation by child if that doesn't change what section b says that if you're changing the design would adversely may adversely impact your compliance with any other part of the regulation then you are required to go back and do new testing that section b we have never argued in this case that the two piece lighter was less difficult for a child to operate our claim has always been the section of the regulations that were violated had to do with the change that made a new and adult user more likely to disable them because it was easier to do so so that a curiosity and i don't know what i would do the information other than satisfy their curiosity if there's really if there really are one point five billion of these disposable lighters out in the field with this two piece child safety feature has any cord or any agency ever found it to be defective under these regulations not that i'm aware of i'm not aware of it ever being presented to you any agency in requesting an evaluation of that particular item surely the mother court cases and gathering that these things get removed whether easily or otherwise they certainly  do remove them from every letter and there was evidence from other witnesses that they removed them and there was evidence that big news that a percentage of their users intentionally removed the child safety device to make it easier always harder on the premis they clearly are removable nobody apparently disputes that you're not saying that they need to be absolutely unremovable that's already that's currently we're somewhere in this rocky area in the middle of it whether it's easily removable i'm just curious are there any other cases that address whether this particular design was easily removable i don't know of any reported cases i don't know of very many other cases that have been filed or claims that have been made but there are no appellate decisions that deal with that specifically the other two points i would make briefly and we made those these in our arguments there was no substantial evidence in this case that this was not the lighter that was used by this child on that particular date and we've cited that in our briefs and so that argument i think should be rejected and the other thing and the other point that i want to make is the standard that mr stover has claimed for reversal in this case is incorrect he cites the american honda case and the language there when in fact back to the bank case in two thousand and four and recently the candle versus local seventeen case the standard has always been whether or not this court can say with fair assurance that the outcome of the trial was not affected by the evidentiary error that's the standard and with that standard we believe that this case should be returned for a new trial in the district court thing right i think you are an interesting case the case will be