AUSTIN � Federal law prohibits lawsuits in state courts that allege design defects in Bic lighters, but it doesn't prevent suits in state courts that allege manufacturing defects in the lighters, the Texas Supreme Court decided April 18.

The Justices sent a $5 million jury verdict back to the 13th District appellate court in Corpus Christi for a fresh look from several angles.

Bic Pen Corporation fell short of total victory, failing to persuade the court that plaintiff Janace Carter's manufacturing defect claim was merely a restatement of her design defect claim.

The justices rendered no decision on whether Bic acted with malice, dropping that hot potato in the laps of the 13th District.

A declaration that Bic acted without malice would wipe out a $2 million award of exemplary damages.

Carter sued Bic in 1998 after her son Jonas, at age 5, set fire to the dress of 6-year-old sister Brittany Carter with a Bic J-26 lighter. Brittany suffered severe burns.

At trial before District Judge Craig Estlinbaum in 2003, jurors awarded her $3 million in actual damages and $2 million in exemplary damages.

On appeal, 13th District judges affirmed the entire verdict on the design defect claim without even considering the manufacturing defect claim.

They saw it backwards, however, for according to the Supreme Court they should have disregarded the design defect and paid attention to the manufacturing defect.

The design defect claim must fail, Justice David Medina wrote, because the Consumer Product Safety Commission certified that the J-26 lighter complied with regulations.

"Before receiving a certificate of compliance from the Commission," Medina wrote, "manufacturers must provide the Commission with a complete description of the child resistant features of the lighter and all related dimensions and force requirements."

A lighter must resist successful operation by at least 85 percent of children on a test panel, he wrote, and 90 percent could not operate the J-26.

The 85 percent standard, he wrote, "encouraged the manufacture of child resistant lighters and yet did not discourage adults from using them."

The commission rejected a 90 percent standard, he wrote, because it would reduce the utility and convenience of the product and increase its cost.

He knocked down Carter's argument that common law can supplement liability under federal regulations.

"Interpreting federal regulation in this area as a liability floor that may be enhanced by state law, however, undercuts the federal regulations," he wrote.

Any state can enhance product liability by applying to the commission for exemption, Medina pointed out.

"This process would serve no purpose were the states free to raise the liability bar through application of their common law," he wrote.

Having granted a victory to Bic, the Court then directed 13th District judges to decide two questions that might result in victories for Carter.

They must decide whether Carter can pursue a manufacturing defect claim and they must decide if Bic acted with malice, justifying exemplary damages.

Darrell Barger, Kyle Dreyer, Reagan Simpson and Bert Huebner represented Bic.

Daniel Gurwitz, Daniel Worthington and Lisa Powell represented Carter.

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