by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims
Case Synopsis:
A mother purchased a plastic tub of Plaster of Paris at an arts-and-craft store for a project with her daughter. Said project involved making a cast of the daughter’s hand. After mixing the Plaster of Paris, the mother told the daughter to insert the right hand. The plaster hardened, entrapping the daughter’s hand, during which time, the daughter complained of a burning sensation in that hand. After various failed attempts to free the daughter’s hand, the mother did so by breaking the plaster with a hammer. By then, the daughter had incurred burns to the hand, so severe that surgery and partial amputation of fingers resulted.
The ensuing litigation against the manufacturer of the Plaster of Paris alleged that the product was defective and unreasonably dangerous due to failure-to-warn.
I was retained by the attorney for the Defense.
My opinions:
A duty to warn manifests when a product embodies a hazard, such that a reasonably prudent and alert person nonetheless needs to be informed/reminded and instructed, in order to be able to behave in a manner that avoids harm. To be adequate, a warning must conform to well-established guidelines as to content and format.
The Plaster of Paris was not defective nor unreasonably dangerous. Adequate warnings were prominently displayed on the packaging (plastic tub). The warnings, rendered in capitals, included statements directly relevant to the incident, namely: AVOID CONTACT WITH SKIN AND EYES; WHEN MIXED WITH WATER, THIS MATERIAL HARDENS AND THEN SLOWLY BECOMES HOT; DO NOT ATTEMPT TO MAKE A CAST ENCLOSING ANY PART OF THE BODY; and, FAILURE TO FOLLOW THESE INSTRUCTIONS MAY CAUSE BURNS.
The mother admitted in her Deposition that she had read the warnings in the store and again at home; irrespectively, she claimed that she did not voluntarily assume risk because she was not left with an appreciation for the degree of the hazard and the extent of the risk. In support of her claims, the lawyer for Plaintiff had argued in the Complaint that there were differences in wording between the warnings on the packaging and those on the Material Safety Data Sheet (MSDS).
Plaintiff’s claims notwithstanding, the warnings on the packaging were unambiguous. The mother was not claiming that she could not interpret their meanings; rather, the mother chose not to comply. Such was not the fault of the warnings, since warnings can’t force compliance; after all, people are known to intentionally disregard red traffic lights or even flashing railroad-crossing signals. A warning on a package and a warning on a MSDS are directed to separate readers (the consumers of the product and the employees of the product manufacturer, respectively). The two don’t have to be identical syllable-for-syllable, only adequate for the given reader. In the case-at-issue, the differences in wording were neither substantive nor causal to the incident.
Result: The case settled.
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com