Rodney Todd, as Special Administrator of the Estate of Tiffany Todd v. Societe Bic, S.A., and Bic Corporation

MANION, Circuit Judge.

Two-year-old Tiffany Todd died tragically when four-year-old Cori Smith used a Bic lighter to start a fire in Tiffany’s bedroom. Tiffany’s estate sued the lighter manufacturer and the district court granted summary judgment in favor of the defendants. After rehearing the appeal en banc,1 a majority of *1404this court concluded that the warning printed on the lighter — “KEEP OUT OF REACH OF CHILDREN” — was adequate, and that summary judgment on the issue of duty to warn was proper. However, to ensure that the law we applied on the other issues in the case was genuine state…