The opinion of the court was delivered by: Simandle, District Judge
1. This matter comes before the Court on the motion by Defendant Scripto USA ("Scripto" or "Defendant") for summary judgment [Docket Item 11] pursuant to Fed. R. Civ. P. 56(b). Because Plaintiff has provided no evidence that Defendant's allegedly defective product design was the cause of the damage in this case, the Court must grant the motion for summary judgment.
2. For purposes of this motion, the following facts are not disputed. On or about May 8, 2002, a fire occurred at the Marlton, New Jersey home of Bernard Wille and Pamela Smith-Wille causing property damage. While there are no eyewitnesses to the cause of the fire, the investigating police and fire responders believe that the fire was started by Brendan Wille, the then four-year-old son of the Willes, with a utility lighter manufactured for and distributed by Scripto. When questioned by police, Brendan indicated that he obtained the lighter from the countertop in his family's kitchen and used it to ignite his father's chair. Both of Brendan's parents testified that they knew the lighter should be kept out of their son's reach and that he should not be allowed to play with it because he could start a fire or hurt himself if he did.
3. A blue Scripto utility lighter was recovered from the front porch of the Wille home after the fire and Plaintiff Quincy Mutual Fire Insurance Company ("Quincy Mutual") has alleged that the lighter that was recovered was the one Brendan used to start the fire. That lighter is a model GM9C, also known as an Aim 'n Flame II.
4. To operate that lighter and generate a flame, an individual must exert sufficient pressure to roll forward a small wheel located on top of the lighter and simultaneously depress a trigger located on the underside of the lighter. Once the flame is generated it will extinguish when the trigger is released. This model lighter was tested on behalf of Scripto in accordance with the test protocol set forth in 16 C.F.R. Part 1212 and successfully resisted operation by 91% of the child test panel. In December 2000, the federal Consumer Product Safety Commission accepted these testing results and authorized Scripto to import and sell the lighter as a child resistant lighter. The packaging for the lighter included warnings that the contents were "extremely flammable" that it should be "kept out of the reach of children" and that "the child resistant feature of this lighter is no substitute for proper adult supervision."
5. Plaintiff alleges that the Scripto lighter contained a design defect because the flame did not extinguish when a person released the rolling wheel, only when a person released the trigger. In other words, Plaintiff alleges that the lighter should have required a person to turn the wheel and hold the trigger not only to ignite the flame, but also to keep it lit. Plaintiff bases this argument on the report of its proffered expert, Richard Hallowell, Jr., who concluded the lighter is defective simply because Brendan was able to start a fire with it.
6. Mr. Hallowell has no formal engineering education beyond a basic undergraduate degree. Prior to becoming a litigation consultant, Mr. Hallowell's engineering experience consisted of designing and installing HVAC and fire protection systems in buildings. He has never designed any kind of lighter, nor any other product. He has never been a member of any standards-setting organization, other than the Building Officials Conference of America. Hallowell has never authored any standards or codes, nor has ever published in any peer-reviewed journals regarding human factors, warning effectiveness, or child-resistant design. He has no training in psychology, children's behavior, language comprehension, or child-resistant design. When asked at his deposition to state the fields in which he would consider himself to be an expert, Hallowell identified heating, air conditioning, plumbing, fire protection, and the mechanical components of related machinery. He specifically denied expertise in warnings, human factors, and human factors with regard to children.
7. Mr. Hallowell knows virtually no factual information about the fire at the Wille home that gave rise to this case. He knows nothing about the fire or its potential causes. His first information about this case came in the form of a letter from Plaintiff's counsel that set forth the defect theory counsel wanted him to pursue. "You and I have discussed on several occasions, a potential cause of action regarding the safety mechanisms used for grill lighters. The issue is, should the child safety mechanism used in these type of lighters prevent the flow of fuel to the end of the lighter, as opposed to just preventing the igniter. In the typical case, a rolling thumb button must be activated before the lighter trigger is pulled, in order to allow the igniter to ignite, however, once [the lighter is] lit, the rolling thumb button can be released and the light will continue to burn as long as the trigger is depressed. We have several of these type cases now in our office, and we would like to develop a cause of action based in products liability for this defective design."
8. Mr. Hallowell does not know how Brendan obtained the lighter or where in the Wille home the fire started. He does not know where Brendan's parents were at the time, whether Brendan was supervised, or if not, for how long Brendan was unsupervised. Hallowell does not know how long Brendan had the lighter in his possession before the fire started, how long it took Brendan to ignite the lighter, or how many times Brendan tried to do so before he was successful. Hallowell does not know if Brendan used one or two hands to operate the lighter or for how long he was able to maintain a flame. He does not know if Brendan operated the lighter accidentally or purposefully.
9. Importantly, Hallowell does not know for how long Brendan kept the wheel on top of the lighter rolled forward or if Brendan kept the wheel rolled forward the entire time that he kept the trigger depressed. Hallowell does not know for how long the average four year-old child would be capable of maintaining the wheel rolled forward or the trigger depressed. There is no other evidence about how Brendan operated the lighter or to suggest that if the lighter had a second cut-off switch in the wheel that would have prevented the property damage in this case.
10. Hallowell examined the lighter and some packaging for no more than ten minutes at the office of Plaintiff's counsel. He is able to describe the two-step process a person must use to operate the lighter, but does not know how the existing fuel cut-off mechanism operates inside the lighter. He has not constructed a prototype of his proposed alternative design to determine feasibility and cannot explain how he would design the second fuel cut-off or how it would work. He admitted that the dimensions of the lighter's handle would have to grow to accommodate his alternative design, but does not know by how much or in what manner, or if the handle would still be usable or would be more likely to be dropped. In short, he does not know how to create his alternative design and does not know if it would pose any new or increased hazards to users. Hallowell was unable to identify any other utility lighters on the market that employ his proposed secondary fuel cut-off.
11. Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed. 2d 731 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
12. Although entitled to the benefit of all justifiable inferences from the evidence, the nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth 'specific facts showing that there is a genuine issue for trial,' else summary judgment, 'if appropriate,' will be entered." U.S. v. Premises Known as 717 South Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993) (quoting Fed. R. Civ. P. 56(e))(citations omitted).
13. Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof ...