                                   NUMBER 13-03-00560-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

BIC PEN CORP.,                                                                                Appellant,

                                                      v.

JANACE M. CARTER, INDIVIDUALLY AND
AS NEXT FRIEND OF BRITTANY CARTER,
JONAS CARTER, AND TARASHA GIPSON,                                                            Appellees.


 On appeal from the 130th District Court of Matagorda County, Texas.


                  MEMORANDUM OPINION ON REMAND
                Before Justices Hinojosa1, Yañez, and Garza
              Memorandum Opinion on Remand by Justice Garza
        Appellant, BIC Pen Corp. (“BIC”), challenges a jury verdict awarding actual and

exemplary damages to appellee, Janace M. Carter, individually and as next friend of her

children, Brittany Carter, Jonas Carter, and Tarasha Gipson. Carter sued BIC, claiming

that design and manufacturing defects in a cigarette lighter caused injuries to Brittany. The

jury found both design and manufacturing defects, and we affirmed based solely on an

analysis of the design defect finding. BIC Pen Corp. v. Carter, 171 S.W.3d 657 (Tex.

        1
         The Honorable Federico G. Hinojosa, form er Justice of this Court, did not participate in this
m em orandum opinion because his term of office expired on Decem ber 31, 2006. See T EX . R. A PP . P. 41.1(c).
App.–Corpus Christi 2005), rev’d, 251 S.W.3d 500 (Tex. 2008). Subsequently, the Texas

Supreme Court held that Carter’s design defect claim was preempted by federal law and

remanded the cause to us to address her manufacturing defect claim. BIC Pen Corp., 251

S.W.3d at 509, 511. We affirm in part and reverse and render in part.

                                                 I. BACKGROUND

         On May 27, 1998, five-year-old Jonas accidentally set fire to the dress of his six-

year-old sister, Brittany, using a BIC model J-26 cigarette lighter (the “Subject Lighter”).

As a result, Brittany suffered third-degree burns to over 55 percent of her body. In October

1998, Carter sued BIC, claiming that Brittany’s injuries were caused by manufacturing and

design defects in the lighter. A jury found in favor of Carter and awarded three million

dollars in actual damages. Upon finding that BIC acted with malice, the jury awarded an

additional two million dollars in exemplary damages.2

         On original submission to this Court, BIC contended that: (1) Carter’s design defect

and manufacturing defect claims were preempted by federal law; (2) the evidence adduced

at trial was legally and factually insufficient to support a finding of a design defect or a

manufacturing defect, that any such defect caused Brittany’s injuries, or that BIC had acted

with malice; (3) the trial court erred in giving a spoliation instruction; (4) the trial court erred

in admitting the testimony of certain expert witnesses; and (5) the trial court awarded

excessive interest. We affirmed, holding that: (1) the design defect claim was not

preempted by federal law; (2) the evidence was sufficient to prove that a design defect in

the lighter caused Brittany’s injuries and that BIC acted with malice; (3) the trial court did

not commit reversible error by admitting the challenged expert testimony; and (4) the trial

court did not award excessive interest. BIC Pen Corp., 171 S.W.3d at 662. Because we

         2
            The trial court reduced the exem plary dam ages award to $750,000 pursuant to section 41.008 of
the civil practices and rem edies code. See T EX . C IV . P RAC . & R EM . C OD E A N N . § 41.008(b) (Vernon 2008); BIC
Pen Corp. v. Carter, 171 S.W .3d 657, 662 n.1 (Tex. App.–Corpus Christi 2005), rev’d, 251 S.W .3d 500, 503
n.1 (Tex. 2008). The final judgm ent, rendered on August 8, 2003, also awarded Carter pre-judgm ent interest
on the awarded actual dam ages, as well as post-judgm ent interest on the entire dam ages am ount.


                                                           2
affirmed the jury’s verdict on Carter’s design defect claim, we did not address any of BIC’s

issues as they related to the manufacturing defect claim. Id. at 662 & n.3.

           The supreme court subsequently found that federal consumer product safety law

preempted Carter’s design defect claim. BIC Pen Corp., 251 S.W.3d at 509, 511. The

court noted specifically that the lighter safety standards set by the Consumer Product

Safety Commission (“CPSC”), which the Subject Lighter satisfied, could not be interpreted

as a “liability floor” that may be enhanced by state law.3 Id. at 507. Rather, because the

CPSC already performed a cost-benefit analysis when formulating its standard, the trial

court could not impose a more strict common law standard without conflicting with the

federal regulatory scheme. Id. at 509.

           We must now address BIC’s three remaining issues:                             (1) whether Carter’s

manufacturing defect claim is preempted by federal consumer product safety law; (2)

whether the trial court erred in giving the spoliation instruction; and (3) whether the

evidence was legally and factually sufficient to support the jury’s findings that there was a

manufacturing defect in the Subject Lighter, that such a defect caused Brittany’s injuries,

and that BIC acted with malice.



           3
               On original subm ission, we described the lighter safety standards prom ulgated by the CPSC as
follows:

           Rather than dictating how lighters are to be designed or what safety features they m ust
           include, the [CPSC] has adopted regulations detailing a protocol for testing disposable
           lighters. 16 C.F.R. § 1210.1. T he regulations are intended to m ake lighters resistant to
           successful operation by children younger than five years of age. Id. The protocol requires
           testing of 100 random ly selected children between the ages of 42 and 51 m onths. See id.
           § 1210.4. The children are given two five-m inute opportunities to operate “surrogate lighters,”
           which have the sam e appearance and design as the actual lighter but em it a signal, such as
           a light or noise, rather than a flam e. See id. Each child’s first attem pt is undertaken without
           guidance from the tester. See id. If a child’s first five-m inute attem pt is unsuccessful, the
           tester dem onstrates how to use the lighter and the child is given an additional five m inutes
           to operate the lighter. See id. § 1210.4(f)(4). A lighter passes the protocol if at least 90
           percent of the 100 children cannot operate the lighter after [two five-m inute] attem pts. See
           id. 1210.4(h)(1). If m ore than ten percent of the children operate the lighter, a different group
           of 100 children is em paneled to test the lighter. See id. The lighter passes the protocol if at
           least 85 percent of the 200 children cannot operate it. See id. § 1210.3(a).

BIC Pen Corp., 171 S.W .3d at 663 n.4.

                                                           3
                                             II. DISCUSSION
A.     Preemption

       When a state law conflicts with federal law, it is preempted and has no effect. U.S.

CONST . art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 747 (1981); Mills v. Warner

Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005). State laws may conflict with federal laws

expressly, see Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); Great Dane

Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001), or impliedly, see

Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995); Great Dane Trailers, Inc., 52

S.W.3d at 743. Federal statutes and regulations impliedly conflict with state law when

such statutes and regulations “indicate[] that Congress intended federal law to occupy the

field exclusively or if state law actually conflicts with federal law or regulations.” Great

Dane Trailers, Inc., 52 S.W.3d at 743 (citing Freightliner Corp., 514 U.S. at 287). “State

law presents an actual conflict with federal law when: (1) it is impossible for a private party

to comply with both state and federal requirements; or (2) state law obstructs

accomplishing and executing” the “full purposes and objectives” of Congress. Id. Here,

BIC argues that Carter’s claims are impliedly preempted because validation of her claims

would impose standards that would obstruct the accomplishment and execution of the full

purposes and objectives of the federal Consumer Product Safety Act (“CPSA”).

Preemption is a legal issue which we review de novo. BIC Pen Corp., 171 S.W.3d at 663;

see City of Euless v. Dallas/Fort Worth Int’l Airport Bd., 936 S.W.2d 699, 702 (Tex.

App.–Dallas 1996, writ denied) (citing In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994)).

       On original submission, BIC contended that a finding in favor of Carter would

frustrate the purposes underlying the CPSA4 because it would impose a rule requiring: (1)

       4
           The CPSA states that its purposes are as follows:

       (1) to protect the public against unreasonable risks of injury associated with consum er
       products;

       (2) to assist consum ers in evaluating the com parative safety of consum er products;


                                                     4
a higher minimum percentage of children who cannot operate the lighter, and (2) a more

advanced age for children to be tested with surrogate lighters.5 Carter countered by

arguing that her common law claim is expressly preserved according to the saving clause

contained in the CPSA, which states that “[c]ompliance with consumer product safety rules

or other rules or orders under this chapter shall not relieve any person from liability at

common law or under State statutory law to any other person.” Id. § 2074(a). However,

although the saving clause allows state-law tort claims, it “does not permit claims that

actually conflict with federal regulations.” BIC Pen Corp., 251 S.W.3d at 506; see Geier

v. Am. Honda Motor Co., 529 U.S. 861, 872 (2000).

        The Texas Supreme Court agreed with BIC that a finding in favor of Carter on her

design defect claim would conflict with the federal purposes underlying the CPSA by

imposing a more restrictive standard than that called for by the federal regulatory scheme.

BIC Pen Corp., 251 S.W.3d at 509. The court reasoned that, because the CPSC had

engaged in a cost-benefit analysis in formulating the safety standard for lighters, the

standard was not simply a “liability floor” which common law liability could supplement. Id.

at 507 (“The [CPSC] specifically noted that a higher ([ninety] percent) acceptance criterion

was also considered, but rejected because the higher performance level [was] not

commercially or technically feasible for many firms and would have substantial adverse

effects on manufacturing and competition, and would increase costs disproportionate to

benefits.”) (internal quotations and citations omitted).


        (3) to develop uniform safety standards for consum er products and to m inim ize conflicting
        State and local regulations; and

        (4) to prom ote research and investigation into the causes and prevention of product-related
        deaths, illnesses, and injuries.

15 U.S.C. § 2051(b).
        5
           BIC noted that the standards prom ulgated by the CPSC for lighter safety required only that 85
percent of the children tested be unable to activate the lighter. See 16 C.F.R. § 1210.3(a). BIC also noted
that the standards m andated testing only on children under five years of age, see id. § 1210.1, whereas Jonas
Carter was five years and two m onths old at the tim e of the accident.

                                                      5
       The court, however, noted that Carter’s manufacturing defect claim raises a

question separate from whether the design itself was faulty, and remanded to us to

determine whether the manufacturing defect claim is similarly preempted. Id. at 509. We

hold that it is not. The CPSC promulgates standards regulating the design of consumer

products, not their manufacture. Moreover, there is no mechanism in the CPSA or in the

corresponding federal regulations addressing products designed in accordance with the

federal standards yet manufactured in a way that deviates from those standards. See

Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (“A manufacturing

defect exists when a product deviates, in its construction or quality, from the specifications

or planned output in a manner that renders it unreasonably dangerous.”). Therefore, a

common law rule requiring a manufacturer to construct its products in conformance with

design specifications—which would result from a finding that BIC was liable on Carter’s

manufacturing defect claim—would not conflict in any way with the federal regulatory

scheme establishing standards for those specifications. On the contrary, such a common

law rule is necessary to ensure that manufacturers comply with the federal regulatory

scheme. To hold otherwise would be to nonsensically state that manufacturers have an

obligation to design products pursuant to regulatory standards but are free to deviate from

those standards when actually manufacturing the product. Such a holding would nullify the

stated federal objective of “protect[ing] the public against unreasonable risks of injury

associated with consumer products.” 15 U.S.C. § 2051(b).

       Accordingly, we conclude that Carter’s manufacturing defect claim is not preempted

by federal law. BIC’s first remaining issue is overruled.

B.     Spoliation Instruction

       BIC argues that it is entitled to a new trial because the trial court erred in giving a

spoliation instruction to the jury. Question number one of the jury charge, asking whether

there was a manufacturing defect in the Subject Lighter, contained the following instruction:


                                              6
        You are instructed that Bic Pen Corporation destroyed documents containing
        the testing results of Bic Pen Corporation lighters tested and manufactured
        the same week as the Subject Lighter after those documents had been
        requested from Bic Pen Corporation and after Bic Pen Corporation had a
        duty to preserve those documents and not destroy them. You are instructed
        that you may presume that the documents destroyed were unfavorable to Bic
        Pen Corporation.

        The use of a spoliation instruction is generally limited to two circumstances: (1) the

deliberate destruction of relevant evidence; and (2) the failure of a party to produce

relevant evidence or to explain its non-production. Wal-Mart Stores, Inc. v. Johnson, 106

S.W.3d 718, 721 (Tex. 2003) (citing Anderson v. Taylor Publ’g Co., 13 S.W.3d 56, 61 (Tex.

App.–Dallas 2000, pet. denied)). Under the first circumstance, a party who has deliberately

destroyed evidence is presumed to have done so because the evidence was unfavorable

to its case. Id. (citing Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d

379, 389-90 (Tex. App.–Amarillo 1994, no writ); Brewer v. Dowling, 862 S.W.2d 156, 159

(Tex. App.–Fort Worth 1993, writ denied)).                    Under the second circumstance, the

presumption arises because the party controlling the missing evidence cannot explain its

failure to produce it. Id. at 721-22 (citing Watson v. Brazos Elec. Power Co-Op., Inc., 918

S.W.2d 639, 643 (Tex. App.–Waco 1996, writ denied)). The trial court has considerable

discretion to determine necessary and proper jury instructions. Tex. Workers’ Comp. Ins.

Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex. 2000).

        It is undisputed that Carter propounded a discovery request upon BIC in December

of 1999 asking in part for manufacturing quality reports, and that BIC later destroyed some

of the documents that were requested.6 However, BIC contends that it was justified in


        6
           Although the record does not contain the Decem ber 1999 discovery request, neither party disputes
the fact that such a request was propounded. Moreover, the record does contain a “Motion to Com pel
Production of Docum ents” filed by Carter on Septem ber 24, 2002. This m otion included as an exhibit a “Fifth
Am ended Notice of Intention to Take the Oral and Videotape Deposition of Corporate Representative of BIC
Pen Corporation Subpoena Duces Tecum ,” which was filed on an earlier date and requested the production
of the following docum ents, am ong others:

        (18)    All docum ents which evidence or reflect the process engineering [sic] utilized in
                m anufacturing the lighter m odel at issue in this case, including all m ethods of quality
                control, whether statistical engineering was utilized for the m anufacture of the lighter

                                                       7
destroying the documents because it had kept the documents for the time period mandated

under the applicable federal regulations and “had no reason to contemplate” that Carter

was asserting a manufacturing defect claim until the eve of trial.

         BIC is correct that it was only required by federal regulations to keep records of

production testing for three years. See 16 C.F.R. § 1210.17.7 Nevertheless, a duty to

preserve evidence arises when a party knows or reasonably should know that there is a

substantial chance that a claim will be filed and that evidence in its possession or control


                   or any com ponents used in the lighter.

         (19)      All docum ents which evidence or reflect the engineering process used by Bic to
                   determ ine that the child resistant feature(s) on each and every child resistant lighter
                   m anufactured or sold by Bic functioned as designed (lim ited to the 10 year period
                   preceding the date suit was filed).

         (20)      All docum ents which evidence or reflect reports of m anufacturing line trouble,
                   m alfunction, stoppage or shutdown for the m anufacturing line or m achines used in
                   the m anufacture of the lighter at issue in this case; ten (10) year period preceding
                   the date suit was filed.

         (21)      All docum ents which evidence or reflect quality control, product safety feature testing
                   or product functionality testing reports for the m odel lighter at issue in this suit;

         (22)      All docum ents which evidence or reflect whether Bic has ever had trouble with,
                   experienced m alfunctions on or had to shutdown any of its m anufacturing processes
                   or lines that m anufacture child-resistant lighters, including the nature of the problem
                   and the dates(s) [sic] the problem s occurred.
         7
             The relevant federal regulation provides:

         (a)       Records. Every m anufacturer and im porter of lighters subject to the [safety standard
                   for cigarette lighters] shall m aintain the following records . . .

                   ....

                   (3)      Records of production testing, including the test results, the date and
                            location of testing, and records of corrective actions taken, which in turn
                            includes the specific actions taken to im prove the design or m anufacture or
                            to correct any noncom plying lighter, the date the actions were taken, the test
                            result or failure that triggered the actions, and the additional actions taken
                            to ensure that the corrective action had the intended effect. These records
                            shall be kept for 3 years following the date of testing. . . .

16 C.F.R. § 1210.17 (em phasis added); see 15 U.S.C. § 2065(b) (“Every person who is a m anufacturer,
private labeler, or distributor of a consum er product shall establish and m aintain such records, m ake such
reports, and provide such inform ation as the Com m ission m ay, by rule, reasonably require for the purposes
of im plem enting this Act . . . .”). Neither party disputes that this regulation was applicable to the m anufacturing
quality reports requested by Carter in discovery.

         It was uncontroverted that the Subject Lighter was m anufactured during the 42nd week of 1997. The
regulations therefore required BIC to keep records of testing done during that week until the 42nd week of
2000.

                                                          8
will be material and relevant to that claim. Wal-Mart Stores, Inc., 106 S.W.3d at 722 (citing

1 W EINSTEIN & BERGER , W EINSTEIN ’S FEDERAL EVIDENCE § 301.06[4] at 301-28.3 (2d ed.

2003)). Thus, even if BIC was not required to retain records by federal regulation, it was

required to retain all material records once it knew or should have known that a relevant

claim would be filed. See id. BIC asserts that it did not know, and should not have

reasonably known, that Carter would assert a manufacturing defect claim, noting that

Carter first raised a manufacturing defect claim in her third amended petition filed on

October 31, 2002. However, BIC does not dispute that it destroyed the documents after

the original discovery request, asking in part for manufacturing quality reports, was

propounded. Accordingly, it should have reasonably known there was a “substantial

chance” that a claim would be filed relevant to those reports.8 See id.

        BIC next argues that the inclusion of a spoliation instruction was error because the

manufacturing quality reports dealt only with a “small sample of lighters made the same

week as the Subject Lighter,” which, BIC asserts, was not relevant to any issue in the case.

To support this assertion, BIC notes that the parties had the opportunity to test and

examine the Subject Lighter itself before trial, and that the only issue was whether the

Subject Lighter itself (and not other lighters made the same week) was manufactured

defectively. However, while the ultimate issue was whether the Subject Lighter was in fact

defective, a manufacturing quality report showing that other defective lighters were made

the same week as the Subject Lighter would have constituted circumstantial evidence that

the Subject Lighter was itself defective. See Shaun T. Mian Corp. v. Hewlett-Packard Co.,

237 S.W.3d 851, 863-64 (Tex. App.–Dallas 2007, pet. denied) (“[C]ircumstantial evidence

can give rise to both the inference of a product defect and the inference that the defect


         8
           BIC did object to the discovery request on the basis that the requested docum ents were irrelevant
to the design defect claim , which was the only active claim asserted by Carter at the tim e; BIC claim s that it
was therefore justified in destroying the m anufacturing quality reports. However, the record does not contain
any ruling by the trial court pertaining to BIC’s objection. Accordingly, BIC was not entitled to destroy the
docum ents that were requested by Carter.

                                                       9
existed at the time of sale.”). Moreover, Carter claims that the destroyed documents may

have identified more precise specifications for the manufacture of the Subject Lighter.

Thus, even if the destroyed documents did not specifically state whether or not the Subject

Lighter was defective, its contents may have been probative as to this ultimate issue.

Accordingly, the court was within its discretion to determine that the documents were

“material and relevant” to the case and that their destruction warranted the inclusion of a

spoliation instruction. See Wal-Mart Stores, Inc., 106 S.W.3d at 721; Ordonez v. M.W.

McCurdy & Co., 984 S.W.2d 264, 273 (Tex. App.–Houston [1st Dist.] 1998, no pet.).

       Finally, BIC contends that, even if the spoliation instruction was proper, the trial

court erred by failing to instruct the jury that BIC could have rebutted the presumption that

the destroyed documents would have been unfavorable to BIC. See Ordonez, 984 S.W.2d

at 273 (“[T]he alleged spoliator may rebut the presumption by showing that the evidence

in question was not destroyed with fraudulent intent or purpose.”). However, BIC does not

direct us to any point in the record where it actually attempted to rebut this presumption.

We therefore cannot say that the failure of the trial court to include the proposed instruction

on rebuttability is grounds for reversal. See id. (citing TEX . R. APP. P. 44.1) (“Any error in

failing to instruct [the jury] is reversible only if it probably caused the rendition of an

improper judgment.”).

       We conclude that the trial court’s inclusion of the spoliation instruction in the jury

charge was not error. BIC’s second remaining issue is overruled.

C.     Evidentiary Sufficiency

       BIC also contends that the trial court’s judgment should be reversed because there

was legally and factually insufficient evidence to establish:         (1) that there was a

manufacturing defect in the Subject Lighter; (2) that such a defect was a producing cause

of Brittany’s injuries; and (3) that BIC acted with malice.




                                              10
       1.     Standard of Review

       In reviewing the legal sufficiency of evidence, we credit evidence supporting the

judgment if reasonable jurors could, and disregard contrary evidence unless reasonable

jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Villagomez v.

Rockwood Specialties, Inc., 210 S.W.3d 720, 748 (Tex. App.–Corpus Christi 2006, pet.

denied). We will sustain a legal sufficiency challenge only if: (1) there is a complete

absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at 810. More than a

scintilla of evidence exists, and the evidence is legally sufficient, if the evidence furnishes

some reasonable basis for differing conclusions by reasonable minds about a vital fact’s

existence. Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001).

However, “when the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla

and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601

(Tex. 2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

       In conducting a factual sufficiency review, we do not substitute our judgment for that

of the jury; rather, we view all the evidence in a neutral light to determine whether the

contested finding is so contrary to the great weight and preponderance of the evidence as

to be manifestly unjust, shock the conscience, or clearly demonstrate bias. See Golden

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Pool v. Ford Motor Co.,

715 S.W.2d 629, 635 (Tex. 1986); Villagomez, 210 S.W.3d at 749.

       2.     Manufacturing Defect

       To establish a manufacturing defect cause of action, a plaintiff must prove the

following elements: (1) the product deviated from its specifications or planned output in


                                              11
a manner that rendered the product unreasonably dangerous; (2) the defect existed at the

time the product left the possession of the defendant;9 and (3) the defect was a producing

cause of the injury. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 41-42 (Tex. 2007).

Texas law does not generally recognize a product failure or malfunction, standing alone,

as sufficient proof of a product defect. Id. at 42. Instead, “a specific defect must be

identified by competent evidence and other possible causes must be ruled out.” Id.

        At trial, Carter produced evidence in the form of letters sent by BIC to the CPSC in

1995 and 1997 detailing the precise specifications for the model J-26 lighter. The

specifications were expressed as, among other things, a list of measurements representing

the forces that must be exerted upon the lighter in order to activate it. The three forces

listed on the CPSC letters were: (1) “Shield force,” the amount of force necessary to move

the shield (or guard) which must be depressed in order to operate the lighter; (2) “Fork

force,” the amount of force necessary to move the fork mechanism that releases butane

gas to create a flame; and (3) “Sparkwheel rotation force,” the amount of force necessary

to rotate the steel wire sparkwheel to create a spark as it makes contact with the flint.

        Prior to trial, BIC conducted two tests of the Subject Lighter in order to determine

whether it met specifications. The results of the tests, and the figures to which the results

were compared, are as follows:

                         1995 CPSC          1997 CPSC          Subject Lighter      Subject Lighter
                         specifications     specifications     test 1 result        test 2 result
 Shield force            1.0–2.0 kg         1.0–2.0 kg         1.892 kg             1.889 kg
 Fork force              0.4–0.6 kg         0.3–0.6 kg         0.353 kg             0.349 kg
 Sparkwheel
 rotation force          1.0–1.7 kg         0.7–1.7 kg         0.975 kg             0.962 kg

        The testing revealed that the Subject Lighter met both the 1995 and 1997


        9
         BIC did not argue that there was a defect in the Subject Lighter that arose after it left BIC’s
possession.

                                                  12
specifications for shield force, as well as the 1997 specifications for fork force and

sparkwheel rotation force.           However, the Subject Lighter did not meet the 1995

specifications for fork force or sparkwheel rotation force.

        BIC argues that only the specifications listed in the 1997 letter are applicable, and

that those listed in the 1995 letter are inapplicable. Specifically, it claims that the pre-trial

test administered on the Subject Lighter was the one used for the 1997 specification and

could not be used to test the 1995 specification.10 According to BIC, the 1997 testing

protocol differed from the 1995 testing protocol in that it required the fork mechanism to

travel a lesser distance in order for the lighter to register as activated. BIC’s expert, Paul

Labrum, who administered the tests, testified that because the tests were performed using

the 1997 testing protocol, only the 1997 specifications applied. Conversely, Carter asserts

that the specifications contained in the 1995 letter to the CPSC, rather than those

contained in the 1997 letter, applied to the Subject Lighter. Carter notes that, although the

Subject Lighter was the initial version of the J-26 lighter, BIC introduced a re-engineered

J-26 design in 1997, and the 1997 CPSC letter contained the specifications for the new

design. Carter presented expert testimony by William Kitzes, a safety analyst and product

safety manager, who stated that only the 1995 specifications applied to the Subject Lighter.

Kitzes reasoned that the 1995 specifications applied because only the 1995 version of the

J-26 lighter, like the Subject Lighter, had a round-wire sparkwheel and a one-piece hood,

whereas the re-engineered 1997 version had a square-wire sparkwheel and a two-piece

hood. Given the test results and Kitzes’ testimony, we find that there was sufficient

evidence adduced for the jury to have concluded that the 1995 specifications applied and

that the Subject Lighter deviated from those specifications.


         10
            BIC also asserts that the 1995 specification for fork force was inapplicable because it “was
expressed as an approxim ate specification only.” The 1995 letter sent to the CPSC by BIC stated the fork
force specification as follows: “approx. 0.9 – 1.3 pounds (400 - 600 gram s).” The jury could have reasonably
concluded that the term “approx.” referred to the fact that “0.9 - 1.3 pounds” was “approxim ately” equivalent
to “400 - 600 gram s,” with the m etric m easure being the m ore precise specification.

                                                     13
       Carter also notes that the spoliation instruction, which we have determined was

properly given, provided an additional basis for the jury to conclude that a manufacturing

defect existed. Although the presumption generated by a spoliation instruction does not

relieve the non-spoliating party of the burden to prove each element of its case, the

presumption does have probative value and it may be sufficient to support the non-

spoliating party’s assertions. Trevino v. Ortega, 969 S.W.2d 950, 960-61 (Tex. 1999). It

is a factor that may be used by the factfinder in weighing the evidence. Id. Carter claims

that “the destroyed documents would have identified [BIC]’s internal manufacturing

specifications for the [S]ubject [L]ighter” and that the jury was entitled, pursuant to the

spoliation instruction, to assume that the internal manufacturing specifications were “at the

high end of the CPSC specifications.” With that presumption, Carter argues, all of the

Subject Lighter test results could be considered out of specification. We agree. Labrum,

BIC’s expert, testified as follows:

       Q. [Carter’s attorney]         . . . Now, from a standpoint of your
                                      manufacturing specs, do the manufacturing
                                      specifications—are they designed to exceed
                                      what the Consumer Product Safety Commission
                                      requires for child-resistancy features?

       A. [Labrum]                    No. In fact, just the opposite. They don’t exceed
                                      those. They are lower or tighter.

       Q.                             In other words—

       A.                             Yeah. Your word “exceed” can be taken a
                                      couple of ways.

We find, given this testimony, that the jury could have presumed pursuant to the spoliation

instruction that the destroyed documents reflected manufacturing specifications that were

more strict than those expressed to the CPSC in the 1995 and 1997 letters.

       Even if the evidence, including the presumption arising from the spoliation

instruction, was sufficient to establish that the Subject Lighter failed to meet BIC’s internal

specifications, Carter was still obligated to provide sufficient evidence that the Subject


                                               14
Lighter was “unreasonably dangerous.” See Am. Tobacco Co., Inc. v. Grinnell, 951

S.W.2d 420, 434 (Tex. 1997). We find that she did. “Unreasonably dangerous” is defined

as “dangerous to an extent beyond that which would be contemplated by the ordinary

consumer with knowledge common to the community.” Id. at 426 (quoting RESTATEMENT

(SECOND ) OF TORTS § 402A cmt. i (1965)). Carter produced evidence at trial showing that

the Subject Lighter failed to meet the fork force and sparkwheel rotation force

specifications provided by BIC in 1995 to the CPSC, and that the Subject Lighter was

therefore easier to operate than it would have been had it complied with the specifications.

This provided a basis for reasonable minds to differ as to whether the Subject Lighter was

unreasonably dangerous; accordingly, the evidence was legally sufficient to allow the jury

to arrive at such a conclusion. See Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d at 782-

83.

       Carter was also required to show legally and factually sufficient evidence that the

Subject Lighter’s manufacturing defect was a producing cause of Brittany’s injuries. See

Ford Motor Co., 242 S.W.3d at 41-42. A producing cause is one that is: (1) a substantial

cause of the event in issue; and (2) a but-for cause, or one without which the event would

not have occurred. Id. at 46. The jury may determine causation based on circumstantial

evidence. See Ridgway, 135 S.W.3d at 601. The evidence at trial showed that Jonas was

playing with the Subject Lighter when he accidentally set fire to Brittany’s dress and that

the Subject Lighter failed to meet BIC’s specifications for child resistancy as reflected in

its 1995 letter to the CPSC. A reasonable finder of fact could infer from the circumstances

of the case that the Subject Lighter’s defect was a substantial cause of Brittany’s injuries

and that such injuries would not have occurred if the Subject Lighter complied with BIC’s

specifications. Moreover, as we noted on original submission, a child burn victim is not

precluded from recovering against the manufacturer of a defective lighter simply because

he or she was burned as a result of another child’s use of the lighter. BIC Pen Corp., 171


                                            15
S.W.3d at 673 (citing Hernandez v. Tokai Corp., 2 S.W.3d 251, 257 (Tex. 1999)).

       We conclude that Carter produced more than a scintilla of evidence to support a

finding that the Subject Lighter deviated from its specifications or planned output, that such

deviation rendered the lighter unreasonably dangerous, and that the defect was a

producing cause of Brittany’s injuries. Ford Motor Co., 242 S.W.3d at 41-42; Lee Lewis

Constr. Co., 70 S.W.3d at 782-83. Further, viewing all the evidence in a neutral light, we

cannot say that such a finding is manifestly unjust, shocks the conscience, or clearly

demonstrates bias. See Golden Eagle Archery, Inc., 116 S.W.3d at 761.

       3.     Malice and Exemplary Damages

       Generally, exemplary damages may only be awarded if the plaintiff proves by clear

and convincing evidence that the harm with respect to which the plaintiff seeks recovery

of such damages results from fraud, malice, or gross negligence. TEX . CIV. PRAC . & REM .

CODE ANN . § 41.003(a) (Vernon 2008). This standard may not be satisfied by evidence of

ordinary negligence, bad faith, or a deceptive trade practice. Id. § 41.003(b) (Vernon

2008). Here, the jury found, by clear and convincing evidence, that the harm to Brittany

Carter resulted from the malice of BIC. Because malice must be proved by clear and

convincing evidence, an elevated standard of proof, we apply a more exacting sufficiency

review on appeal by looking at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding of malice was true. BIC Pen Corp., 171 S.W.3d at 674 n.20 (citing Sw. Bell

Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004); In the Interest of J.F.C., 96 S.W.3d 256,

264-68 (Tex. 2002)).

       At the time this case was filed, malice was defined under the Texas Civil Practice

and Remedies Code as:

       (A)    a specific intent by the defendant to cause substantial injury to the
              claimant; or

       (B)    an act or omission:

                                             16
              (i)    which when viewed objectively from the standpoint of the actor
                     at the time of its occurrence involves an extreme degree of
                     risk, considering the probability and magnitude of the potential
                     harm to others; and

              (ii)   of which the actor has actual, subjective awareness of the risk
                     involved, but nevertheless proceeds with conscious
                     indifference to the rights, safety, or welfare of others.

Act of Apr. 20, 1995, 74th Leg., R. S. ch. 19, § 1, 1995 Tex. Gen. Laws 108, 109, amended

by Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847,

899. At the time, this statute also provided that the claimant could recover exemplary

damages even if only nominal damages were awarded, but only if it established by clear

and convincing evidence that the harm resulted from malice as defined in subpart A above;

that is, by clear and convincing evidence of the defendant’s specific intent to cause

substantial injury to the claimant. BIC Pen Corp., 251 S.W.3d at 510 (citing TEX . CIV. PRAC .

& REM . CODE ANN . § 41.004(b)).

       Carter contends that BIC’s conduct involved an extreme degree of known risk, and

that BIC acted with conscious indifference to the safety and welfare of children such as

Brittany. Although most of Carter’s allegations of malice involve the design of the lighter,

she does also contend that “[BIC] knew that lighters were leaving its factory that did not

conform to its specifications.” Nevertheless, Carter provided no evidence showing specific

intent on the part of BIC to cause substantial injury to its customers. Moreover, Carter did

not establish that BIC acted with an actual, subjective awareness of an extreme degree of

risk in its manufacturing process. Accordingly, we cannot say that a reasonable trier of fact

could have formed a firm belief or conviction that BIC acted with malice in its

manufacturing of the Subject Lighter. See BIC Pen Corp., 171 S.W.3d at 674 n.20.

       Because Carter did not produce a scintilla of probative evidence showing that BIC

acted with malice in manufacturing the Subject Lighter, there was no basis upon which the

jury could have properly awarded exemplary damages to Carter. See TEX . CIV. PRAC . &


                                             17
REM . CODE ANN . § 41.003(a). BIC’s third remaining issue is therefore sustained.

                                    III. CONCLUSION

      We affirm that portion of the trial court’s judgment awarding actual damages, and

we reverse and render that portion of the trial court’s judgment awarding exemplary

damages.


                                                      DORI CONTRERAS GARZA,
                                                      Justice

Memorandum Opinion on remand delivered
and filed this the 4th day of December, 2008.




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