Case studies – Page 2 – Packaging Expert Witness

Packaging and warnings trial

by Sterling Anthony, CPP, expert in packaging, logistics, marketing, and human factors.

Synopsis:

Plaintiff, a food worker sustained hand lacerations on the cutting strip of an institutional-size carton of aluminum foil, resulting in surgery and nerve damage. Plaintiff claimed that she dropped the carton and was injured trying to catch it.

Suit was brought against the manufacturer of the aluminum foil, alleging defective packaging and failure-to-warn.

I was retained by the Defense and delivered services culminating at trial.

My opinions:

The packaging was not defective and there was no failure to warn.

The cutting strip concept has been on all carton sizes of aluminum foil, literally ever since the products have been marketed; even so, it is regarded in industry as state-of-the-art.

Sharpness is an inherent quality of the cutting strip and can not be designed out.

The function and characteristics of the cutting strip are evident upon sight.

A carton flap folds over the cutting strip, serving as a safeguard, and must be lifted before the cutting strip can be used.

A warning about the sharpness of the cutting strip was conspicuously positioned on the carton flap.

Plaintiff’s attorney cited that the manufacturer of the aluminum foil also markets plastic wrap in cartons that have a cutting device incapable of lacerating; however, I countered that the device is incompatible with aluminum foil.

Plaintiff admitted that she was familiar with the cutting strip, having used it numerous times, at home and on the job; as such, I opined that, although there was a warning, it wasn’t needed.

Result:

Verdict in favor of Defendant.

Sterling Anthony’s contact information is: 100 Renaissance Center-Box 176; Detroit, Mi. 48243; 313-531-1875; www.thepackagingexpertwitness.com; thepackagingexpertwitness@gmail.com

Warning expert on tire fatality

by Sterling Anthony, CPP, expert in packaging, marketing, logistics, and human-factors.

Synopsis: A tire on a semi-trailer blew and caught fire from friction with the aluminum wheel. After extinguishing the fire, the driver called a road service company. A service vehicle arrived with two occupants: a driver and a trainee. The service driver was told of the fire and saw the residue from the fire extinguisher; yet, he removed the damaged tire and replaced it with a new one. While the trainee was inflating the tire, it explosively separated from the wheel. The trainee was caught in the trajectory and killed.

The trainee’s father, as the estate administrator, sued the road service company and its driver. The road service company, in turn, filed a joinder complaint against (among others) the manufacturer of the aluminum wheel, alleging (among other allegations) failure-to-warn about a fire-damaged wheel’s susceptibility to explosive tire separation.

I was retained by the attorney for the wheel manufacturer. I had served as an expert in a variety of failure-to-warn cases, involving such products as charcoal grills, water beds, birth-control pills, cordless drills, car seats, foods, and pharmaceuticals.

Opinions: There was no failure-to-warn. The wheel manufacturer’s Service Manual explicitly warned against mounting a tire on a wheel that has been damaged by excessive heat, including fire. The warning appeared in multiple locations throughout the Service Manual; furthermore, in each location, the content and format of the warning met the criteria for adequacy proposed in the literature, by regulators, and by industry best practices.

Discovery revealed that more than 100 copies of the wheel manufacturer’s Service Manual than been given to the road service company. Deponents from the road service company not only admitted receipt, but said that the Service Manual was incorporated into the training of all employees, including that of the driver who serviced the call. Deponents from the road service company also said that the driver who serviced the call performed contrary to the warnings in addition to contrary to company policy that forbade trainees from going on service runs.

Result: The case settled.

Sterling Anthony’s contact information is: 100 Renaissance Center, Box-176, Detroit, MI 48243; 313-531-1875; www.thepackagingexpertwitness.com; thepackagingexpertwitness@gmail.com

Expert witness, warnings for water bed

By Sterling Anthony, CPP, expert witness, packaging, warnings, patent-infringement, cargo loading & securement

Case synopsis

As he slept, a paraplegic man was severely burned on his lower body by the heating element of a water bed that had sprung a leak and flattened, resulting in close contact between the man’s body and the heating element. Because of his paralysis, the man was insensate below the waist and didn’t know that areas of his flesh were melting. He had to undergo a series of skin graphs and continuous burn care.

The manufacturer of the water bed was sued for failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions

It is reasonably foreseeable that water beds are used by people who have varying degrees of paralysis.

It is reasonably foreseeable that water beds can spring leaks.

It is reasonably foreseeable that water beds flatten when they lose water.

It is reasonably foreseeable that the heating element of a water bed can cause contact burns.

It is reasonably foreseeable that a paralyzed person, unaware of lying on a flattened heated water bed, can suffer burns, due to being insensate.

By virtue of all of the aforementioned, there was a reasonably foreseeable hazard, of a nature that necessitated adequate warnings.

The warnings should have alerted to the possibility of burns to those who are without sensation in parts of the body.

Lacking such warnings, the water bed had a marketing defect that was causal to Plaintiff’s injuries.

Results

The case settled.

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors who also provides services to the legal community as an expert. 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

Packaging expert witness, warnings, CO poisoning

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement

Synopsis

A young man and woman went camping. That first night, they used a portable charcoal-burning grill to cook outdoors. Upon retiring, they brought the grill and the rest of their gear into the tent. The following day, they were discovered dead, having died from carbon monoxide poisoning, the source of which was the charcoal.

The ensuing litigation, alleging wrongful death due to unreasonably dangerous product and a failure-to-warn, was brought against the manufacturer of the grill, the manufacturer of the charcoal, and the retailer that sold the items.

I was retained by the attorney for the Plaintiff and testified at trial.

My opinions

It was known by both manufacturers that lit charcoal emits carbon monoxide, which can be fatal inside enclosed quarters.

It was known by both manufacturers that charcoal can seem to be exhausted, but, in truth, still be burning and emitting carbon monoxide.

It was reasonably foreseeable that a person, mistakenly believing that charcoal is no longer burning, could take the grill containing the still-lit charcoal into enclosed quarters, such as a tent.

It was reasonably foreseeable that the hazard of carbon monoxide poisoning posed by still-lit charcoal taken into enclosed quarters might not be obvious to a reasonably alert and safety-conscious person; therefore, a warning was warranted.

The warning should be conspicuous and unambiguous while communicating the nature of the hazard and instructing on how to avoid harm.

Without adequate warnings, the grill and charcoal were rendered unreasonably dangerous.

Result

Verdict for Plaintiff.

Footnote: There are now federal regulations mandating that charcoal carries warnings on the packaging, and the Consumer Product Safety Commission cited this case, among others.

Packaging expert witness on crates and warnings

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement

Synopsis

Company A contracted with Company B; afterwards, Company B subcontracted with Company C. The sequence went: Company B manufactured items, wood crated them, and shipped to Company C; and, Company C performed finishing work and reused the crates to ship to Company A. Serving as coordinator and problem-solver was an employee from a staffing agency, Company D.

At Company A, an employee assigned to opening crates cut a horizontal steel band, at which time, the front of the crate fell open and the contents, weighing more than a ton, fell forward, inflicting serious and permanent injuries.

The ensuing litigation against Companies B, C, and D alleged unreasonably dangerous packaged product and failure-to-warn.

I was retained by the attorney for the Plaintiff. My services included testimony at trial.

My opinions

The crate had design defects that rendered it unfit for its intended purpose.

The items were loaded within the crate in an unstable orientation and were inadequately blocked and braced, allowing the items to move and impact against the crate’s panels.

The crates were not fit for single-use and never should have been reused.

The first crate shipped from Company B to Company C came apart in transit; however, rather than investigate the roles of how the crate was designed and loaded, the solution taken was to place a horizontal steel band around the crate.

Companies B, C, and D believed safety depended on removing the top of the crate and unloading the crate without having cut the steel band; nonetheless, they provided no warnings, neither to follow a specific sequence, nor to not cut the band.

All of the Defendants lacked training, knowledge, and skill in the design and construction of wood crates and in the design of effective warnings; however, they made decisions about items that were inherently hazardous due to weight and size.

Had the crate been properly designed, constructed, and loaded, there would not have been a need for a band; even so, reliance on a band to contain tons of content violates all notions of safety. The ill-advised reliance on the band and the unreasonably dangerous nature of the crate and contents notwithstanding, at minimum, there should have been warnings.

Result

Verdict for Plaintiff.

Packaging expert witness on pallets case

By Sterling Anthony, CPP, expert witness, packaging, warnings, patent-infringement, cargo loading and securement, insurance claims on loss cargo

Case synopsis

The Plaintiff milled flour, which it packaged in 50-lb. bags, palletized. There came a time when Plaintiff contracted with Defendant for the supply of wood pallets. Subsequently, Plaintiff received a series of complaints about off-odors and illness associated with the flour.

Plaintiff checked its warehouse and discovered that the off-odors consistently were present in product on Defendant’s pallets. Laboratory testing revealed that the pallets were the source of the off-odors and product contamination. It turned out that the pallets had been constructed out of lumber that had been sourced out of South America and had been treated with a certain fungicide to prevent the growth of mold.

The inventory was declared unsalvageable and Plaintiff sued for the value of the inventory and the amount of refunds to customers.

I was retained by Plaintiff.

My opinions

The fungicide breaks down into a chemical compound that emits off-odors that impregnates packaging and contaminates product. Such tendencies on the part of the fungicide is known within the U.S. food industry. Ingestion of the contaminated product can cause a variety of gastronomical distresses. The fungicide had been banned in the United States for use on wood pallets, 10 years prior to Plaintiff’s losses.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, knew or should have known about the unacceptable risk posed by the fungicide.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, should have taken steps to determine whether its lumber supplier used a banned fungicide.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, should have disclosed to Plaintiff any and all chemical-based treatments that had been used on the lumber.

Defendant, having visited Plaintiff’s facilities, knew Plaintiff’s purpose for the pallets.

Defendant breached the industry standard of care by failing to supply wood pallets fit for their intended use, specifically, the packaging, storage and shipment of bags of food grade flour.

Defendant breached the industry standard of care by failing to disclose to Plaintiff that the pallets were assembled with lumber that had been treaded with a banned fungicide.

Defendant’s actions and inactions were the direct and proximate causes of all damages claimed by Plaintiff.

Result:

The case settled

Packaging expert witness on inadequate warnings

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading and securement

Synopsis of case

A woman applied a hair treatment. Soon thereafter, she lit a cigarette and her hair caught fire. By the time she extinguished the fire, she had suffered disfiguring burns. She was not aware of any hazard associated with the use of the product in combination with smoking. The ensuing litigation alleged an unreasonably dangerous product by virtue of inadequate warnings.

I was retained by the attorney for Plaintiff.

My opinions

The warnings on the label were inadequate because they did not address the hazard of flammability, in general, nor of smoking cigarettes or other tobacco products, in specific.

The literature is clear on a number of principles. A warning is needed whenever there is a hazard not obvious to a reasonably alert person. In circumstances in which a person has knowledge of a hazard, a warning still can be needed as a reminder. As to content, a warning should: contain a signal word reflective of the severity of the hazard; identify the hazard by type; convey the consequences; instruct on avoidance; and, if warranted, provide first-aid information. As to format, a warning should: be conspicuous; be unambiguous; and, when practical, use pictograms (icons) in addition to wording.

Facts unfavorable to the Defendant included: the product’s Material Safety Data Sheet acknowledged that the product is flammable and warned to keep away from open flame; even if the warning to keep away from open flame had appeared on the label, it would not have been specific enough to be associated with smoking; the manufacturer knew of other similar incidents involving its product; and, some of the labels on competitor’s products carried warnings about flammability, staying clear of open flame, and about not smoking while the product is wet on the hair.

Result

The case settled.

Packaging expert witness in design patent-infringement

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement, and insurance claims regarding cargo.

Synopsis of facts

A trio of inventors were granted a design patent of a type of food container. For years, the assignee company had been selling the container before becoming aware that another company was selling a container, which, according to the assignee, infringed on the design patent. Litigation resulted.

The Defendant claimed that Plaintiff’s design was not unique and was confusingly similar to the prior art cited in the prosecution file history.

I was retained by the attorney for the Plaintiff.

An expert is not allowed to opine on the ultimate question of whether there has been infringement; nonetheless, my services involved consulting, advising, and applying my expertise to the comparisons between the patented design and the cited prior art. I also wrote reports and testified at trial.

My opinions

The prior art cited in the prosecution file history contained no design that is confusingly similar to that of the design patent-at-issue. In a comparison of the two aforementioned, the containers that practiced the design patent-at-issue emerged as unique as to their decorative/ornamental (i.e. non-functional) features. Those features were described by the drawings/figures of the design patent-at-issue; however, I provided a detailed comparison feature-by-feature.

The prior art cited by the defense contains no design that is confusingly similar to the design patent-at-issue. The same type of comparison of decorative/ornamental features referenced above was performed

Prior art known to me before I was retained for the case-at-issue contained no design that was confusingly similar to the design patent-at-issue. Again, I performed a detailed comparison of decorative/ornamental features.

Lastly, prior art, contained no design that was confusingly similar to the accused design, such determined by the same detailed comparison cited variously above.

My conclusions were: the patent design-at-issue was unique and that any comparisons between it and the prior art reveals differences in decorative/ornamental features, such that an ordinary observer would not confuse the patent design-at-issue with the prior art; and, nor would an ordinary observer confuse the accused design with the prior art.

Result:

Verdict for Plaintiff

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert who provides services 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

Packaging expert witness on forklift safety

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

A man was killed at a worksite when a rack of architectural glass fell from a forklift truck, crushing him. At the time, the man was one of two spotters serving as the “eyes” of the forklift driver, whose vision was obstructed by the load.

The ensuing litigation was against the manufacturer of the glass and against the manufacturer of the rack (known as an L-Buck because its side-profile resembles that letter) and alleged that the rack constituted defective packaging and that the rack should have contained warnings.

I was retained by the attorney for the Defendant glass manufacturer.

My opinions:

The direct and proximate causes of the fatality were breaches of standards governing forklift safety. The use of L-Bucks is regarded as a best practice throughout the architectural glass industry and is safe under the aforementioned standards. There is no need for warnings of the type alleged in the Complaint.

In his deposition, the forklift driver testified that obstacles close to the L-Buck prevented him from lifting it from the rear, so that the weight would lean against the mast, as he knew he should have done. He lifted it from the front to position it away from the obstacles; however, he didn’t set it down to reinsert the forks from the back. As a consequence, he traveled with the weight leaning forward, causing the load to rock unsteadily. In contrast, standards mandate that loads be carried low to the ground, forks angled upward, and the weight against the mast.

In his deposition, the forklift driver testified that the size of the load obstructed his vision as he drove the forklift in forward gear; so, he recruited two spotters to direct his travel. In contrast, standards mandate that the driver operate the forklift in reverse when vision is obstructed.

In his deposition, the forklift driver testified that the spotter who got killed was in front of the forklift at the time the load fell forward. In contrast, standards mandate that pedestrians in the vicinity maintain a safe distance from an operating forklift and that the driver remain alert to their presence.

In his deposition, the forklift driver testified that there came a time when the load rocked so violently that it came off the forks, during a time when the spotter who got killed was trying to manually steady the load. In contrast, the load would not have come off the forks had the driver been operating in accordance with standards; furthermore, the spotter would not have been trying to steady the load had standards regarding pedestrians been followed.

The L-Buck did not have a design defect by virtue of it being possible for a driver to carry it in the wrong orientation. There is no feasible way for a device designed for forklift handling to only permit entry of the forks from one direction. OSHA standards dictate that all forklift drivers be certified, meaning that they have been trained in safe operation practices.

The L-Buck did not have a marketing defect by virtue of not carrying warnings as to the correct way to engage the load and travel with it. Forklift drivers are sophisticated users, certified in safe operation practices. Besides, the forklift driver admitted that he knew the correct way to engage the L-Buck.

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

Packaging expert witness on cargo loading & securement

Sterling Anthony, CPP, expert witness, packaging, human factors, cargo loading & securement

Case synopsis:

A man operating a motorcycle sustained serious injuries when he collided with one of several industrial rolls of paper that had spilled off of an overturned flatbed trailer truck and onto the highway.

The ensuing litigation against the trucking company alleged negligence, claiming that the rolls had not been loaded and secured in accordance with applicable standards. Suit was also brought against the state of California, claiming inadequate maintenance of the involved stretch of highway.

I was retained by the attorney for the trucking company Defendant.

My opinions:

The loading and securing of the cargo was subject to federal standards, both the general requirements governing all categories of cargo plus the commodity-specific requirements governing rolls of paper weighing 5,000 lbs. or more.

The rolls of paper had been loaded and secured in accordance with the applicable standards. The claim that they hadn’t been, based on their having spilled onto the highway, was not justified. No standard——federal or otherwise——sets forth an expectation that cargo must remain contained and intact in the event of a truck rollover.

The rollover was not the result of improper loading, for example, improper weight distribution. Nor was the rollover the result of improper securement; for, prior to the rollover, the cargo had remained restrained in place.

Discovery revealed that the curved section of highway where the rollover occurred had been the scene of other such rollovers. Discovery also revealed that the driver of the truck had been ticketed for having negotiated the curve at too high a speed, given road conditions and ambient lighting.

Plaintiff’s expert opined that, had an enclosed trailer been used instead of a flatbed, the cargo would not have spilled onto the highway. Such an opinion was hypothetical, at best; more relevantly, the applicable standards allow for the use of flatbeds.

Whatever factors were causal to the accident, inadequate loading and securement of cargo was not among them.

Result:

The case settled.