                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0228p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                                                 -
 DAVID R. CUMMINS, Conservator for C.A.P.,

                           Plaintiff-Appellant, --
 a minor,

                                                 -
                                                      No. 12-5635

                                                 ,
                                                  >
                                                 -
           v.

                                                 -
 PRODUCTS MANUFACTURING COMPANY, INC., --
 BIC USA, INC. and BIC CONSUMER

                       Defendants-Appellees. N
                    Appeal from the United States District Court
              for the Western District of Kentucky at Bowling Green.
        No. 1:08-cv-00019—Joseph H. McKinley, Jr., Chief District Judge.
                                     Argued: July 25, 2013
                            Decided and Filed: August 14, 2013
    Before: KEITH and McKEAGUE, Circuit Judges; WATSON, District Judge.*

                                      _________________

                                           COUNSEL
ARGUED: Joseph H. Mattingly, III, MATTINGLY & NALLY-MARTIN PLLC,
Lebanon, Kentucky, for Appellant. Edward H. Stopher, BOEHL, STOPHER &
GRAVES LLP, Louisville, Kentucky, for Appellees. ON BRIEF: Joseph H. Mattingly,
III, MATTINGLY & NALLY-MARTIN PLLC, Lebanon, Kentucky, for Appellant.
Edward H. Stopher, Raymond G. Smith, Todd P. Greer, BOEHL, STOPHER &
GRAVES LLP, Louisville, Kentucky, for Appellees.




        *
           The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                 1
No. 12-5635         Cummins v. BIC USA, Inc., et al.                                  Page 2


                                   _________________

                                         OPINION
                                   _________________

        McKEAGUE, Circuit Judge. This products liability action stems, tragically,
from severe burn injuries suffered by a three-year old boy. After a nine-day trial, the
jury returned a verdict for the manufacturer of the cigarette lighter that started the
injurious fire. The jury found the lighter was not defective or unreasonably dangerous
in a way that causally contributed to the injuries. Plaintiff contends on appeal that the
trial was unfair because the court (1) allowed inadmissible evidence, and (2) improperly
refused to give a jury instruction concerning misconduct by opposing counsel. Finding
no error, we affirm the judgment of the district court.

                                   I. BACKGROUND

        The minor victim, referred to simply as “CAP,” sustained serious burns on
December 17, 2004, when he was three years old. He had just returned to his mother
Amy Cowles’ home in Greensburg, Kentucky, after an overnight visit with his father and
step-mother, Thor and Tammy Polley. CAP testified in trial that he found a cigarette
lighter on the floor in his father’s truck (driven by his step-mother) as he returned to his
mother’s home. CAP used the lighter to loosen a button on his shirt. He said he did not
know the lighter would cause a flame. When his shirt caught fire, CAP screamed. His
mother responded to the scream. She observed CAP in flames from the waist up,
attempted to remove the shirt, and poured water over his chest. She held him until the
ambulance arrived and went with him to the hospital. CAP 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 before being released on January 7,
2005.

        A black BIC model J-26 cigarette lighter was found at the scene of the fire and
delivered to Greensburg Police Chief John Brady. The lighter was admitted in evidence
at trial, and Chief Brady identified it as the lighter given to him at the scene. He testified
No. 12-5635            Cummins v. BIC USA, Inc., et al.                                           Page 3


that the lighter was worn, and the child safety guard had been removed from the lighter
when it was given to him.1 Thor Polley denied that the lighter belonged to him but
acknowledged that he usually bought BIC lighters and customarily removed the child-
resistant guards from them to make them easier to use.

         This action was commenced by David R. Cummins as Conservator for CAP on
January 8, 2008 in the Green Circuit Court, Green County, Kentucky. The complaint
set forth claims for compensatory and punitive damages based on various theories under
state and federal law. Named as defendants were BIC USA, Inc., and BIC Consumer
Products Manufacturing Company, Inc. (collectively “BIC”), as manufacturer of the
lighter. BIC removed the action to federal court based on the parties’ diversity of
citizenship.

         A jury trial began on January 23, 2012, limited to plaintiff’s claims for violation
of Kentucky’s Consumer Protection Act and violation of the federal Consumer Product
Safety Rule. After nine days of trial, the jury deliberated for two hours before finding
(1) that BIC had not knowingly or willfully violated the Consumer Product Safety Rule,
16 C.F.R. § 1210.3(b)(4), in a way that was a substantial factor in causing CAP’s
injuries; and (2) that the BIC model J-26 lighter was not defective and unreasonably
dangerous in a way that was a substantial factor in causing CAP’s injuries.

         Plaintiff moved for a new trial, contending (1) that the court erred in allowing
BIC to introduce evidence of the failure of the Consumer Product Safety Commission
to take action concerning the lighter that caused CAP’s injuries, in violation of 15 U.S.C.
§ 2074(b); and (2) that the court erred by permitting BIC’s counsel to argue that CAP’s
parents were to blame for his injuries and refusing to instruct the jury to disregard such
arguments. Plaintiff argued that these two errors combined to mislead the jury and deny


         1
           The testimony as to who found the lighter, and where, is unclear. Defendants argue that the
record evidence is so unclear as to be insufficient to support a finding that the lighter delivered to the
Police Chief caused the fire or that BIC manufactured the lighter that caused the fire. Defendants contend
this evidentiary void represents an independent basis for affirming the judgment, rendering harmless any
error the court may have made in admitting improper evidence or denying a requested instruction. Because
we hold the district court did not err in either of the challenged rulings, we need not reach defendants’
harmless error argument. For purposes of this appeal, the lighter admitted in evidence is presumed to be
the one that caused the fire.
No. 12-5635         Cummins v. BIC USA, Inc., et al.                                  Page 4


him a fair trial. The district court denied the motion in a one-sentence order. On appeal,
plaintiff challenges this ruling, renewing the same two arguments.

                                      II. ANALYSIS

        A. Standard of Review

        The district court’s denial of plaintiff’s motion for new trial is reviewed for abuse
of discretion. Static Control Components, Inc. v. Lexmark Int’l, Inc., 697 F.3d 387, 414
(6th Cir. 2012). A new trial is appropriate when the jury reaches a “seriously erroneous
result as evidenced by (1) the verdict being against the [clear] weight of the evidence;
(2) the damages being excessive; or (3) the trial being unfair to the moving party in some
fashion, i.e., the proceedings being influenced by prejudice or bias.” Id. (quoting Mike’s
Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir. 2006)). An abuse of
discretion may be established if the district court is held to have relied on clearly
erroneous findings of fact, improperly applied the law, or used an erroneous legal
standard. Mike’s Train House, 472 F.3d at 405. The district court will be deemed to
have abused its discretion only if the reviewing court is left with “a definite and firm
conviction that the trial court committed a clear error in judgment.” Id.

        To the extent the motion for new trial was based on an erroneous evidentiary
ruling, the evidentiary ruling, too, is evaluated under the abuse-of-discretion standard.
United States v. Morales, 687 F.3d 697, 701–02 (6th Cir. 2012). The district court has
broad discretion to determine questions of admissibility; an evidentiary ruling is not to
be lightly overturned. Nolan v. Memphis City Schools, 589 F.3d 257, 265 (6th Cir.
2009). An erroneous evidentiary ruling amounts to reversible error, justifying a new
trial, only if it was not harmless; that is, only if it affected the outcome of the trial.
Morales, 687 F.3d at 702; Nolan, 589 F.3d at 265.

        Similarly, to the extent the motion for new trial was based on the court’s refusal
to give a requested jury instruction, the refusal is reviewed for abuse of discretion.
Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 387 (6th Cir. 2008). “A district court’s
refusal to give a jury instruction constitutes reversible error if (1) the omitted instruction
No. 12-5635         Cummins v. BIC USA, Inc., et al.                                 Page 5


is a correct statement of the law, (2) the instruction is not substantially covered by other
delivered charges, and (3) the failure to give the instruction impairs the requesting
party’s theory of the case.” Id. (quoting Tompkin v. Philip Morris USA, Inc., 362 F.3d
882, 901 (6th Cir. 2004)).

        B. Evidence of CPSC’s Failure to Take Action

        Plaintiff’s theory, in support of both tried claims—that the design of the BIC
model J-26 lighter that caused CAP’s injuries was in violation of federal law, and was
defective and unreasonably dangerous under Kentucky law—is based largely on the
contention that the lighter was not in compliance with a federal consumer product safety
requirement, 16 C.F.R. § 1210.3(b)(4), because the child resistant guard was too easily
removable. The regulation provides in relevant part:

        (b) The mechanism or system of a lighter subject to this part 1210 that
        makes the product resist successful operation by children must:
        ....
        (4) Not be easily overridden or deactivated.

16 C.F.R. § 1210.3(b). Focusing on this requirement, plaintiff relied on evidence that
the design of the child resistant guard on the J-26 lighter had been changed in 2004 from
a one-piece guard to a two-piece guard. While plaintiff conceded that the one-piece
guard was not easily overridden or deactivated, he contended that the two-piece guard
removed from the subject J-26 lighter was too easily removable and did not satisfy
§ 1210.3(b)(4).

        BIC responded with evidence that the Consumer Product Safety Commission had
never investigated, expressed concern about, taken any enforcement action with respect
to, or found either J-26 model out-of-compliance with, the § 1210.3(b)(4) requirement.
This evidence was introduced primarily through the expert testimony of Nicholas
Marchica, a product safety consultant who was formerly employed by the Consumer
Product Safety Commission (“CPSC”) from 1978 to 2005. Anticipating this testimony,
plaintiff had made pre-trial motions in limine, asking the district court to exclude
No. 12-5635        Cummins v. BIC USA, Inc., et al.                                 Page 6


Marchica’s testimony about inaction by the CPSC as barred by federal law. The motions
were based in relevant part on 15 U.S.C. § 2074(b), which provides:

       The failure of the [Consumer Product Safety] Commission 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.

15 U.S.C. § 2074(b).

       The district court denied the motions in limine, relying on Morales v. American
Honda Motor Co., 151 F.3d 500 (6th Cir. 1998). In Morales, we construed § 2074(b)
as only barring evidence that the 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.” Id. at 513 (emphasis in original). The district court was satisfied that
Marchica’s anticipated testimony would include evidence that the CPSC had examined
and tested samples of the BIC J-26 and declined to initiate an investigative action or
recall because it concluded that the BIC J-26 complied with § 1210.3. Because the
evidence BIC would introduce was in the nature of activity leading to a decision not to
regulate, rather than a complete failure to act, the court deemed the evidence not barred
by § 2074(b). The court recognized that the challenged evidence of the CPSC’s failure
to take enforcement action with respect to the BIC J-26 lighter would not be conclusive
of liability but would be relevant and not inadmissible.

       Accordingly, the motions in limine were denied, and Marchica was allowed to
testify at trial. In relevant part, his testimony included the following points:

              – that the child safety standard for cigarette lighters, 16 C.F.R.
       § 1210.3, had been in effect since 1994;
               – that BIC first obtained “qualification” from the CPSC for the J-
       26 lighter in 1995;
              – that there is no published set of specific criteria defining the
       § 1210.3(b)(4) term, “easily overridden or deactivated”;
No. 12-5635        Cummins v. BIC USA, Inc., et al.                                   Page 7


               – that the CPSC was aware in June 1999 (after examining a J-26
       lighter used by a two-and-a-half-year old to start a fire in Minnesota) that
       the child resistant guard could be removed from the lighter, but that the
       CPSC did not undertake an investigation and analysis of the ease of its
       removability;
               – that the CPSC had, in February 2001 and February 2002,
       collected two sets of BIC model J-26 samples for protocol testing;
                – that CPSC compliance officials had toured a BIC production
       facility in the 2002–04 time frame to inquire about quality assurance;
               – that the CPSC had broad authority to investigate any product
       safety problem that came to its attention;
               – that the CPSC had issued “dozens upon dozens” of recalls of
       disposable cigarette lighters that lacked required child resistant safety
       features;
               – that the CPSC had never questioned the design of the child
       resistant guard on the J-26 and no such recall or request for replacement
       had ever been issued to BIC;
              – that the CPSC had, in May 2006, (1) acknowledged receipt of
       BIC’s report of 2004 child-safety test results concerning the two-piece
       child resistant guard      design change in the J-26 lighter; and
       (2) confirmed that BIC had complied with the reporting requirements;
               – that the CPSC’s May 23, 2006 letter states that it does not
       constitute CPSC “approval of the lighters or of the reports,” but the letter
       allows BIC to continue to import J-26 lighters for distribution and sale
       in the U.S., as long as they fully comply with applicable safety
       regulations; and
                – that the May 23, 2006 letter indicates the new information on
       the BIC J-26 lighter would be added to the CPSC’s list of “qualified”
       lighters (i.e., lighters as to which manufacturers and importers have
       submitted complete documentation), and that the BIC J-26 remained on
       the list as of the last time Marchica had consulted it, in 2010.

       In relevant part, then, Marchica’s testimony established that the J-26 lighter was
not unknown to the CPSC and that the CPSC had had occasion to qualify the J-26 and
evaluate different aspects of it. His testimony established that the CPSC had not
completely failed to act in relation to the J-26; that the CPSC had taken some actions in
relation to the J-26; that the CPSC had not found the J-26 to be in violation of any safety
No. 12-5635         Cummins v. BIC USA, Inc., et al.                                  Page 8


rule; and that the CPSC had not exercised its authority to recall J-26 lighters or taken any
other enforcement action in relation to the J-26. His testimony was thus allowed
notwithstanding 15 U.S.C. § 2074(b).

        In connection with both of plaintiff’s claims (i.e., for knowing or willful violation
of a federal consumer product safety rule, and for design and manufacture of a defective
and unreasonably dangerous product under state law), the district court instructed the
jury on the significance of Marchica’s testimony. In substance, the court advised the
jury that the fact that the CPSC had never cited BIC for violating the Consumer Product
Safety rules was not necessarily determinative; that it was a factor to be considered, but
was not conclusive.

        Aggrieved by the jury’s adverse verdict, plaintiff moved for a new trial.
Plaintiff’s argument is encapsulated in one sentence:

                Thus, the evidence at trial was uncontradicted that at no time
        prior to BIC’s manufacture of the two-piece lighter used by CAP or even
        prior to CAP’s injury had the CPSC even considered the two-piece
        design in any fashion, let alone any specific consideration of whether the
        child-resistant feature of the BIC model J-26 two-piece lighter is “easily
        deactivated or overridden” in violation of 16 CFR § 1210.3(b)(4).

R. 188-1, Memorandum at 5, Page ID # 4193 (emphasis in original). Focusing on the
specific alleged defect at the heart of the instant claims, and the evidence of the CPSC’s
complete failure to take any action specifically with respect to the ease with which the
two-piece child resistant guard on the J-26 can be deactivated or overridden, plaintiff
argued to the district court and argues on appeal that Morales is distinguishable and that
Marchica’s testimony should have been excluded.

        There is little case law interpreting 15 U.S.C. § 2074(b). The Morales decision
is the most authoritative ruling. In Morales, the trial court was deemed to have erred
when it applied § 2074(b) “with wooden literalness” to exclude evidence of a CPSC
report explaining why the CPSC denied a petition to regulate motorbikes. Morales,
151 F.3d at 512. The court held the report “was not evidence of the CPSC’s inaction;
No. 12-5635            Cummins v. BIC USA, Inc., et al.                                           Page 9


rather, it was evidence of the CPSC’s action in denying the rule-making petition.” Id.
at 513 (emphasis in original).

         In so ruling, the Morales court followed the lead of Johnston v. Deere & Co.,
967 F. Supp. 578 (D. Me. 1997). In Johnston, too, the CPSC declined to act after having
initially issued notice of proposed rulemaking to regulate operation of riding lawn
tractors. In Johnston, like Morales, the evidence scrutinized under § 2074(b) consisted
of the CPSC’s “articulated reasons” for withdrawing the proposed rulemaking and
deciding not to regulate. Id. at 580. The court explained why such evidence was not
inadmissible under § 2074:

                  [S]ection 2074(b) reflects Congress’s recognition that the new
         Commission it had established would be confronting thousands of
         consumer products, most of which it could not pay any attention to, at
         least for a long while. Congress was concerned, therefore, that the
         creation of the CPSC and its new authority would not impede common
         law litigation in the states over unsafe products, as subsection (a) directs.
         The most reasonable reading of section 2074(b), therefore, is that it is
         referring to the complete failure by the CPSC to engage in activity on a
         product; that failure is not to be introduced into evidence as somehow
         implying that a particular product is not unsafe. Where the CPSC has
         engaged in activity, on the other hand, those activities are admissible
         even if they lead ultimately to a decision not to regulate, just as an
         ultimate decision to regulate is admissible under subsection (a). They are
         not “failure . . . to take any action.”

Johnston, 967 F. Supp. at 580 (footnotes omitted).2 This construction was cited with
approval in Morales.

         Plaintiff concedes that the standards discussed in Morales and Johnston are
applicable but contends the instant facts are distinguishable.                      That is, plaintiff
acknowledges that evidence of CPSC activity in relation to a product is admissible but
maintains that evidence of inaction by the CPSC is not admissible. In both Morales and
Johnston, the evidence deemed admissible despite § 2074(b) was evidence of


         2
           Subsection (a) of § 2074 provides: “Compliance 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.” 15 U.S.C. § 2074(a).
No. 12-5635        Cummins v. BIC USA, Inc., et al.                               Page 10


activity—the CPSC’s report in Morales and the CPSC’s “articulated reasons” in
Johnston—in relation to the subject product’s specific alleged defect. Here, in contrast,
plaintiff contends that BIC’s evidence of CPSC’s involvement with the two-piece guard
on the J-26 lighter, specifically, amounted only to inaction and should not have been
admitted.

       BIC notes in response that Congress, in § 2074(b), made inadmissible evidence
of the CPSC’s failure to act “with respect to the safety of a consumer product.”
Consistent with this language, BIC contends, Morales and Johnston construed § 2074(b)
as barring evidence of the CPSC’s inaction only where there has been a complete failure
to engage in activity on “a product.” The CPSC has not completely failed to act in
relation to the J-26 lighter; rather, it has promulgated numerous regulations, including
regulations governing the child resistant guard. See 16 C.F.R. § 1210. Because the
CPSC has not completely failed to act in relation to the J-26 lighter, BIC contends that
§ 2074(b), as construed in Morales, does not to bar Marchica’s testimony on the CPSC’s
failure to expressly determine the suitability of the two-piece guard. In other words, in
view of the CPSC’s substantial activity in regulating the J-26 lighter, BIC maintains the
evidence that no enforcement action has ever been instituted regarding a particular
feature of the product, the child resistant guard, is probative and was properly admitted.

       Indeed, BIC’s position and the district court’s ruling are consistent with the
teaching of Morales and Johnston. Plaintiff maintains, however, that Morales and
Johnston are factually distinguishable. He argues that Marchica’s testimony, unlike the
evidence allowed in Morales and Johnston, 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. Yet, § 2074(b), as construed in Morales and Johnston, does not
establish such a specific precondition to admissibility. The “standard” established in
Morales and Johnston, which plaintiff concedes is applicable, recognizes that § 2074(b)
is intended “to exclude those instances where the 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.” Morales, 151 F.3d at 513 (quoting Johnston, 967 F. Supp. at
No. 12-5635            Cummins v. BIC USA, Inc., et al.                                           Page 11


580). The evidence introduced by BIC cannot be fairly characterized as a complete
failure by the CPSC to engage in any activity on the safety of the product, the J-26
lighter. And although the evidence does not amount to a report or statement of reasons
for deciding not to regulate, it is fairly characterized as evidence of “CPSC activity that
led to a decision not to regulate.”

         Accordingly, we conclude the district court did not abuse its discretion by
allowing Marchica to testify concerning the CPSC’s activity in relation to the J-26
lighter and its undisputed failure to take any enforcement action in relation to the J-26
lighter and the one-piece or two-piece child resistant guard. The court’s application of
§ 2074(b) was faithful to the governing teaching of Morales.

         Plaintiff argues that because Marchica’s testimony falls short of establishing that
the CPSC ever passed specifically on the ease with which the two-piece guard could be
deactivated or overridden, it does not necessarily justify an inference that the two-piece
guard was approved or was safe. This is true. In fact, the evidence of CPSC’s most
recent activity on the J-26 lighter, the May 23, 2006 letter, clearly states that it is not to
be considered “an approval” of the lighter. But the question the district court was asked
to decide was admissibility under § 2074(b). The court was not asked to assess the
probative value or weight of the evidence, or the nature and strength of any inference
that might reasonably be drawn from it. Such matters were properly left for argument
by counsel for the parties and determination by the jury. Indeed, plaintiff’s counsel
cross-examined Marchica, highlighting the weaknesses in his testimony and
undermining its impact. Counsel also argued the significance of the evidence to the jury.
And the district court clearly instructed the jury that the CPSC’s failure to cite BIC for
violating product safety rules was merely a factor to be considered and not determinative
in relation to either of plaintiff’s claims.3


         3
            Section 2074(b), the only asserted grounds for excluding Marchica’s testimony, excludes
evidence only in relation to state law claims. It does not exclude evidence in relation to a claim under
federal law, such as plaintiff’s first claim, for knowing or willful violation of a federal consumer product
safety rule.
          Marchica’s testimony regarding the CPSC’s inaction was relevant and admissible in relation to
plaintiff’s federal claim, to show BIC did not knowingly or willfully violate 16 C.F.R. § 1210.3(b)(4). It
follows that outright exclusion of the evidence from trial under § 2074(b) was never a proper option.
No. 12-5635             Cummins v. BIC USA, Inc., et al.                                              Page 12


         Thus, in ruling on the admissibility of the evidence, the district court used the
correct legal standard. The court is not shown to have committed a clear error in
applying it. Nor has plaintiff shown that admission of the evidence—the accuracy of
which is not contested—contributed to a “seriously erroneous result.” It follows that the
district court did not abuse its discretion in denying the motion for new trial.

         C. Refusal to Give Curative Instruction

         Plaintiff also contends the trial court erred when it refused to give the jury a
curative instruction following BIC’s counsel’s repeated improper suggestions that CAP’s
parents were to blame for his injuries. In a pre-trial ruling on one of plaintiff’s motions
in limine, the district court had ruled that the fault of others was not relevant to the
question whether the child resistant guard on the J-26 lighter could be easily deactivated
or overridden. The court directed BIC’s counsel to make sure that his interrogation
and/or argument did not cast blame on others. Plaintiff contends BIC’s counsel, Edward
Stopher, repeatedly violated this directive during trial.

         None of the alleged transgressions was flagrant.4 Yet, at the close of proofs,
plaintiff’s counsel asked the court for an instruction admonishing the jury not to consider
the fault of any person other than BIC. The court denied the request. The court
explained that the fact that “somebody” removed the child resistant guard from the
lighter was relevant, “but who it was that removed it was not necessarily relevant.” R.


Rather, even if § 2074(b) were deemed to have barred some of Marchica’s testimony in relation to the
claim under Kentucky law, the most plaintiff could have hoped for was a limiting instruction—a limiting
instruction only slightly more limiting than the instruction that was given—advising the jury that they
could consider the evidence of the CPSC’s inaction only in relation to the claim under federal law and not
at all regarding the state law claim.
          Considering the limited relief § 2074(b) could have afforded, the likelihood that the district
court’s failure to give such a slightly more limiting instruction, even if erroneous, contributed to a
“seriously erroneous result” warranting a new trial, is negligible.
         4
           Plaintiff identifies several instances where he says Mr. Stopher transgressed the court’s directive
in his opening statement and questioning of Amy Cowles. First, Stopher mentioned that the accident
would not have occurred unless CAP had been alone at the time. Second, Stopher alluded to Thor Polley’s
deposition testimony that he customarily removed the safety guards from his lighters. Third, Stopher
elicited testimony from Amy Cowles that she failed to discover that CAP had something in his pocket
when he returned from visiting his father. Obviously, none of these instances involved a direct “casting
of blame on others.” Each represents an allusion to the undisputed facts and circumstances that contributed
to cause the tragic accident. None of these instances represents a violation of the court’s directive, much
less the sort of flagrant misconduct that could be expected to unfairly influence the jury in its deliberations.
No. 12-5635         Cummins v. BIC USA, Inc., et al.                                 Page 13


210, Trial tr. vol. VIII at 145-46, Page ID # 6086-87. The court ruled it was not
inappropriate for BIC’s counsel to bring out the former point; as to the latter point, the
court observed that BIC’s counsel had been successfully kept from “demonizing Thor
Polley or Amy [Cowles].” Id.

        Then, during closing argument, Mr. Stopher made the misstep that is the focus
of plaintiff’s present claim. Plaintiff contends that Stopher “castigated” CAP’s father
in the following remarks:

                Presumably, if this was the lighter, presumably that lighter was
        disabled by Thor Polley. He made an intentional adult choice to disable
        that lighter. And by his testimony, he disabled it not because it is easy
        to deactivate it or override it, he disabled it because he said it made it
        easier to light.
               It is undisputed that no one can make a fool-proof lighter. No one
        based on the evidence that we have heard can make a Thor-proof lighter.
        With this intent—

R. 212, Trial tr. vol. IX at 21, Page ID # 6145. At this point, the district court interrupted
Stopher and admonished him for implying Polley was the “fool” who “presumably”
removed the guard. The court then turned to the jurors and advised them to disregard
Stopher’s reference to Polley:

                 Ladies and gentlemen, I have in this trial cautioned Mr. Stopher
        many times not to try to demonize the parents in this accident. An issue
        in this case is whether or not somebody removed this. We don’t know
        who did it. It doesn’t really matter who did it. The fact that matters most
        to you is that somebody did it.

Id. at 22, Page ID # 6146. Plaintiff’s counsel was not satisfied with this admonition. At
the end of closing arguments, counsel renewed his request for an “additional instruction
on the jury not being able to blame other parties.” Id. at 81, Page ID # 6205. Again, the
district court denied the request.

        It is this refusal that plaintiff now contends was an abuse of discretion so
grievous as to warrant a new trial. That is, even though the district court took the
unusual measure of sua sponte interrupting Mr. Stopher’s closing argument mid-
No. 12-5635         Cummins v. BIC USA, Inc., et al.                                Page 14


sentence, admonishing him in the presence of the jury, and directing the jury to disregard
the offending reference, plaintiff contends the court’s failure to repeat the admonition
in the final jury instructions was reversible error.

        Granted, implying that CAP’s father was “foolish” for presumably removing the
child resistant guard from the lighter that presumably caused the fire was unnecessary
and inappropriate. Stopher’s argument—to the effect that a lighter manufacturer simply
cannot design a lighter that is functional and safe and defies modification by an adult
who wishes to disable a safety mechanism— could have been made more discreetly than
it was. But Stopher’s various comments were neither inaccurate nor inflammatory. And
Stopher was duly chastened for his indiscretion by the district court—abruptly and
directly. In fact, the district court’s sudden interruption of counsel’s argument mid-
stream, 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.

        Considering the elements plaintiff must meet to merit a new trial based on the
court’s refusal to give a requested jury instruction, plaintiff’s argument falls short. Yes,
(1) the district could have given the requested instruction as a correct statement; but
(2) the instruction appears to have been substantially and adequately covered by the
court’s contemporaneous curative admonishment and instruction; and (3) counsel’s
misconduct was not so grievous that the refusal to give the instruction could reasonably
be deemed to have materially prejudiced plaintiff’s theory of the case. See Taylor, 517
F.3d at 387. The district court’s refusal to give the requested instruction was not,
therefore, an abuse of discretion. It follows that the district court’s denial of plaintiff’s
motion for new trial on this ground was also not an abuse of discretion.

                                  III. CONCLUSION

        Neither of the asserted claims of error presents grounds for disturbing the
judgment. Accordingly, the district court’s denial of plaintiff’s motion for new trial is
upheld and the judgment in favor of BIC is AFFIRMED.
