by Sterling Anthony, CPP, expert in packaging, marketing, logistics, human-factors, and warnings.
Synopsis
A 20-month old boy was able to remove a button battery from its packaging and went on to swallow the battery. The boy was rushed to the hospital, where the battery was extracted; however, by then, the boy had suffered chemical burns to the esophagus. The treating doctors predicted that the boy would live under an increased probability of contracting cancer of the esophagus later in life.
The parents brought suit, alleging defective packaging and failure-to-warn.
I was retained by the attorney for the Plaintiff.
My opinions
The packaging was defective for not having been child-resistant (C-R). It was reasonably foreseeable that an exploring child, attracted to a shiny button battery, could, by happenstance, remove the battery. That the child would place the freed battery into his mouth also was reasonably foreseeable.
There were technologically and economically feasible ways to design the packaging to be child-resistant, without interfering with the packaging’s role as a marketing tool.
The packaging, called a blister, held two button batteries and consisted of a rigid plastic cover sealed to a card . The back of the card was perforated and the intended means of extracting the battery was to press down on the plastic cover with sufficient force to push the battery through the perforated card.
The front of the package gave no warning that the back was perforated, making it reasonably foreseeable that the parents would think that the packaging was more difficult to open than turned out to be the case.
The front of the package did not instruct the parents that there were warnings on the back of the card; nonetheless, the warnings, as they were, did not address the hazard of choking, even though the Material Safety Data Sheet for the product did address that hazard.
The manufacturer knew, or should have known, that there had been other incidents of ingestion of button batteries, because reports of such incidents were in the public domain, including reports by the Consumer Products Safety Commission.
With the proper combination of package design and warnings design, the accident would not have happened.
Result
The case settled.
Sterling Anthony, CPP, is a consultant and expert, specializing in packaging, marketing, logistics, human-factors, and warnings. His contact information: 100 Renaissance Center-Box 176; Detroit, Michigan 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com