Not everyone heads to the Texas Supreme Court two times on the same case and wins both times. But Reagan Simpson can now add that accomplishment to his score sheet.

For seven years, Simpson, a partner in King & Spalding in Austin, has defended BIC Pen Corp. on appeal in a product liability case. Now, he says, the case finally is over.

The high court sets out the following in its June 17 opinion in BIC PEN Corp. v. Janace M. Carter, as Next Friend of Brittany Carter: 5-year-old Brittany Carter was playing with her brother when he accidentally set fire to Brittany’s dress with a J-26 BIC lighter. Janace Carter sued BIC as Brittany’s next friend, alleging that Brittany’s injuries were the result of manufacturing and design defects in the lighter. A jury found that both types of defects were producing causes of Brittany’s injuries. BIC appealed, and Corpus Christi’s 13th Court of Appeals affirmed. BIC then appealed to the state Supreme Court.

On the case’s first trip to the high court, Simpson argued that federal law pre-empted Carter’s design defect claim — an argument with which the Supreme Court agreed in a 2008 decision reversing and remanding the case to the 13th Court for consideration of the remaining issues.

On remand, the 13th Court concluded that federal law did not pre-empt Carter’s manufacturing defect claim and evidence supported the jury’s finding on that claim, among other things. BIC appealed again to the high court.

While the Supreme Court held in its June 17 decision that federal law does not pre-empt the manufacturing defect claim, it also ruled that the evidence was legally insufficient to support a finding that a manufacturing defect caused Brittany’s injuries.

Carter had asserted that the court should apply a Havner theory to the causation evidence — that’s a toxic-tort theory that increased relative risk may be evidence of causation. The issue in Havner was whether a woman’s use of a drug while pregnant caused her baby’s birth defects.

BIC argued that the court should not apply this theory to the case, and the justices agreed. “The nature of the injury-causing activities and testing that would have to be done to show causation in this case are not similar to, nor do they pose the practical difficulties posed by, those we considered in Havner,” Justice Phil Johnson wrote for the 8-0 court. Justice Paul Green did not participate.

“In this case, testing of J-26 lighters posed no unreasonable risk of injury to the test subjects as would have been the case if testing of the drug on humans had been performed under the facts of Havner,” Johnson wrote. [See the court's opinion.]

The decision is important for future product liability cases, Simpson says.

“It means you can’t use a Havner theory in a traditional products liability case,” Simpson says. “Havner is the epidemiological approach to proving causation in toxic-tort cases if there’s a connection between exposure and disease. And the plaintiffs were trying to do that in this case” to prove causation.

The briefing in the case was highly technical, Simpson says, and he had to bring the court up to speed on the differences in “spark wheel rotation force,” among other things.

Lisa Powell, a partner in McAllen’s Atlas & Hall who represents the plaintiffs at the high court, did not return a telephone call seeking comment.

To suggest an Appellate Lawyer of the Week, e-mail cmcgushin@alm.com.

Previous Appellate Lawyers of the Week:

* “Appellate Lawyer of the Week: Third Time’s the Charm
* “Appellate Lawyer of the Week: Get It in Writing
* “Appellate Lawyer of the Week: Double-Recovery Argument Unsuccessful at 14th Court
* “Appellate Lawyer of the Week: Back to State Court
* “Appellate Lawyer of the Week: Arbitrators and Class Certification
* “Appellate Lawyer of the Week: The 411 on 202
* “Appellate Lawyer of the Week: Fee Application Redo
* “Appellate Lawyer of the Week: The Power of Friendship
* “Appellate Lawyer of the Week: Invoking Arbitration
* “Appellate Lawyer of the Week: First Time’s the Charm