Case studies – Page 3 – Packaging Expert Witness

Packaging expert on child burn case

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

Synopsis:

A child sustained disfiguring burns while standing next to her mother at the kitchen stove. The mother was making funnel cake, a carnival favorite made by letting batter “funnel” into hot oil, in a random, wiggly pattern.

The batter had been prepared using a branded product. The product consisted of dry ingredients packaged in a cylindrical plastic squeezable bottle, having a funnel-shaped closure that had an opening at the top that was covered with a removable cap.

The instructions required removing the capped closure, pouring in milk, replacing the capped closure, shaking the bottle to mix ingredients into a batter, removing the cap from the closure, and squeezing the batter into hot oil. During that last step, the closure suddenly came off, and it, along with a glob of batter, fell into the hot oil, splashing it onto the child.

The ensuing litigation against the product marketer alleged defective packaging and failure to warn.

I was retained by the attorney for the Plaintiff.

My opinions:

The packaging had a design defect and a marketing defect, each, of which, resulted in an unreasonably dangerous product, and each, of which, was a direct and proximate cause of the accident.

The design defect allowed multiple opportunities for failure under the intended use. It was foreseeable that the closure might not be applied sufficiently tight. It was foreseeable that the treaded area around the top of the bottle might become contaminated with dry or wet ingredient, interfering with the tight application of the closure. It was foreseeable that the pressure from squeezing the bottle might force off an insufficiently-tightened closure. It was foreseeable that children might be in the vicinity, given that funnel cake appeals to them.

The marketing defect was a failure-to-warn. There was no warning concerning the foreseeable scenarios under which the closure might be insufficiently tight. There was no warning concerning the foreseeable possibility that an insufficiently tight closure might come off under pressure. There was no warning concerning the foreseeable possibility of splattered hot oil and resulting burns. There was no warning concerning keeping children away from the vicinity.

One of the functions of packaging is to provide convenience, and that’s what the marketer of the funnel cake product meant to leverage; however, sufficient consideration was not given to product safety.

From a product safety perspective, it would have been better to have the consumer make the batter in a bowl or other container, similar to what’s required with cake mix, pancake mix, etc. The element of convenience would reside in prepackaged dry ingredients, possibly in a carton or pouch. Additional convenience could have been provided by including a collapsible, disposable tube (similar to a cake decorator) for squeezing out the batter.

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 intermodal cargo

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

Synopsis:

A shipment of beer out of China into the United States subsequently was declared unfit for consumption, and, therefore, a total loss. The beer had suffered organoleptic changes that negatively affected appearance, smell, and taste.

The shipment had been made in an intermodal container and had traveled by highway, rail, and ocean. The importing had been handled by a logistics company that arranged for transportation, warehousing, and documentation.

The ensuing litigation via an insurance claim brought by the importer against the logistics company alleged negligence in cargo care and an unnecessary time delay.

I was retained by the attorney for the Defendant.

My opinions:

The direct and proximate causes of the loss were choices in the type of packaging and the type of intermodal container.

The beer arrived stateside, physically intact, that is to say, without compromise to the palletized loads and without damage to the individual glass bottles.

The bottles were flint (clear) glass. Green or amber would have been better choices because they protect better against the harmful effects of light; relatedly, discovery revealed that the beer had been under lighted storage for an extended period prior to having been loaded into the intermodal container.

The intermodal container was not——but should have been—— the refrigerated type, known in the parlance as a “reefer.”

Discovery revealed that the intermodal container had sat at dockside at a port in China for more than a day beyond the scheduled loading; however, the logistics company had delivered the intermodal container on time, after which, the company had no authority over port operations. Since the time of year was summer, it could be reasonably inferred that the temperature inside the non-refrigerated intermodal container rose.

Discovery revealed that at no time did the logistics company hold itself out to be an expert in the factors that determine beer quality.

Discovery revealed that this was the Plaintiff’s inaugural importing of beer; that notwithstanding, a universally-held expectation and assumption is that being an importer is to have extensive knowledge about the salient characteristics of the product imported.

As the importer, Plaintiff knew, or should have known, that choices in packaging and in transportation equipment impact the quality of beer. Discovery revealed that Plaintiff made both choices. The latter choice was made knowing that a refrigerated intermodal container was an option. Given that international/intermodal shipments, by definition, involve considerable distances that can complicate being aware of conditions on a real-time basis, it’s prudent to build in margins-of-safety in all phases of planning.

Result:

The case settled.

Packaging expert on newborn blindness case

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

Case synopsis:

An obstetrician delivered a baby and afterwards placed erythromycin ointment into the newborn’s eyes, a common safeguard against eye infections from bacteria in the birth canal. The ointment had come packaged in a 1-gram metal tube, having a keen dispenser end, the tip of which required breaking off in order to squeeze out the ointment.

Days later, it was discovered that the newborn had become blind in one eye. The tip of the dispenser had not been broken off completely and had ended up in the newborn’s eye, thereafter repeatedly scratching the retina and otherwise damaging the eye such that blindness resulted.

The ensuing litigation against the product manufacturer alleged defective packaging and an unreasonably dangerous product. The physician and the hospital also were sued.

I was retained by the attorney for Plaintiff.

My opinions:

The packaging had a design defect, shared by every exemplar manufactured to that specification. The design defect was that the dispensing tip could be snapped but remain attached, dangling. When an unaware physician administers the ointment, the tip can fall into the eye; in fact, the pressure from the squeezing of the ointment can dislodge a dangling tip and the viscosity of the ointment can entrap the tip, assuring that both ointment and tip end up in the eye.

The packaging had a marketing defect. The defect was the absence of warnings regarding the possibility that a partially detached tip, undetected, might end up in the eye of a newborn.

The design defect and the marketing defect resulted in an unreasonably dangerous product. The unreasonably dangerous product was the direct and proximate cause of the accident.

It was the responsibility of the product manufacturer to have factored into account all reasonably foreseeable conditions under which the packaged product would be used. Such an exercise, performed adequately, would have alerted to the possibility of the subject accident.

There were better, safer ways to package the product; for example, a tube with a dispensing tip that didn’t require breaking, but instead, required a puncture by a pin-like feature molded into the top of a cap.

Since such a package had not been chosen, there should have been warnings, alerting to the hazard and instructing how to assure that the tip has been completely detached before the administering of the ointment. Given the small size of the tube, the warnings additionally could have been printed on a carton and on carton inserts.

Results:

The case settled.

Packaging expert on fatal medical error

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

Case synopsis:

A man at a country club experienced a severe allergic reaction to a bee sting. An ambulance team, consisting of a paramedic and a technician, arrived. During the on-site treatment, the ambulance workers administered the wrong drug. The medical error sent the man into respiratory distress. He was rushed to the hospital but died shortly thereafter.

The mistaken drug had been packaged in a clear IV (intravenous) bag and had a see-through overwrap.

Litigation for wrongful death was filed against the ambulance company and against the manufacturer of the drug that had been mistakenly administered. The allegations against the drug manufacturer were defective packaging and failure-to-warn, the theory being that the mistaken drug was packaged in a manner that facilitated the medical error and that there should have been warnings.

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

My opinions:

The direct and proximate cause of the medical error was the failure by the ambulance team to read the labeling . The sequence disclosed in their depositions was: the paramedic asked for a saline solution; the technician retrieved a drug named lidocaine, without confirming his believed choice; the paramedic administered the lidocaine, without checking what he’d been handed.

There was nothing about the packaging that prevented nor even hampered the reading of the labeling. The word, lidocaine, was in such bold, large print, that it was the most prominent feature of the labeling. The labeling also incorporated red markings, known in the medical field as indication that the drug is therapeutically-active, which, saline solution is not.

The Complaint alleged that the packaging for the lidocaine should have been more distinguishable, in terms of size, shape, and overall tactile feel, from those of the saline solution. There is a reason for such standardization: it facilitates the procedure for hanging an IV bag, connecting the tubing, and starting the IV drip.

The Complaint alleged that, since lidocaine is a clear liquid, as are various other drugs, the packaging for lidocaine should have been color-coded. Color-coding, however, quickly can become counterproductive. In the midst of corporate colors and other design elements——with their possible hues, tones, shades, and tints——an attempt to assign meaning via colors would overwhelm the memory. Besides, the lidocaine incorporated red coloring, signaling that it’s therapeutically-active.

The Complaint alleged that ambulance workers operate under severe time restraints, and failing to read the labeling is a foreseeable consequence; and, therefore, there should have been warnings. Rather than being an excuse for not having read the labeling, the conditions under which ambulance work is performed make reading the labeling essential; after all, lives are at risk. Additionally, since the ambulance team didn’t read the labeling, including the most salient elements of same, a warning would not have been read under those same circumstances.

The conduct of the ambulance team was indefensible and contrary to their expected levels of knowledge, education, and training.

Result:

The case settled.

Packaging expert on carton patent infringement

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

Case Synopsis:

A packaging supply company (A) was issued utility patents for a type of paperboard carton that holds and dispenses canned soft drinks. The carton went on to become the best-seller throughout the soft drink industry. There came a time when another packaging supplier (B) started marketing its own paperboard carton/dispenser. Company A sued B over patent infringement. B mounted an affirmative defense, claiming: 1) there was no infringement; and, 2) even if there was infringement, the patents were invalid.

I was an expert for the attorney for Plaintiff.

My services rendered:

As an expert, it was not my role to opine on infringement and invalidity, as those determinations are to be made by the triers-of-fact, namely, a judge or jury.

I was a consultant to the attorney-client, educating him on packaging’s role as a marketing tool, in general, and that role within the soft drink industry, in specific.

I advised on Claim Charts, comparing the claimed features of the patented design to those of the accused.

I advised on Claim Constructions for the Markman Hearing, advising as to the definitions that certain terms-of-art carry within the involved industries. I advised on intrinsic and extrinsic evidence.

I wrote an Expert Report on Infringement. I also wrote Rebuttal Reports to the reports written by Defendant’s expert.

I gave testimony, first in a Deposition. Finally, I testified at trial, both in the Infringement phase and in the Invalidity phase.

Result:

Verdicts in favor of Plaintiff on both Infringement and Invalidity.

Packaging expert witness on warnings case

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.

Packaging expert on in-store fall case

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

Case synopsis:

A woman shopper at a major retailer took an aerobic stepper from the shelf. The packaging consisted of: a printed placard, sized to cover the top surface of the stepper; and, plastic shrink wrap that completely enshrouded the stepper. Prominently depicted on the placard was a woman dressed in exercise tights, performing step aerobics. The shopper placed the stepper, still packaged, on the floor and then stepped up and onto the product. The product slid forward along the floor. The woman fell to the floor and sustained serious injuries.

The ensuing litigation against the manufacturer and the retailer alleged defective packaging, an unreasonably dangerous product, and failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions:

I testified at trial.

The packaging embodied a design defect, inherent in each exemplar. The defect was that the packaging neutralized a safety feature of the product, namely, the non-skid discs, one each at the four corners of the stepper. As long as the stepper was in the packaging, the non-skid discs couldn’t be in contact with the floor.

The packaging embodied a marketing defect. The defect was the failure-to-warn that the packaging should be removed before any use of the product.

The two defects resulted in an unreasonably dangerous product and were direct and proximate causes to the accident.

It was foreseeable that a shopper might attempt an in-store trial of the stepper. The sturdiness of the product, required for its being fit for its intended use, was not dissuasive of such a trial. Nor was it dissuasive that such a trial would not sully the surface of the product and its placard, since both were protected by the shrink wrap.

It was foreseeable that an uncarpeted, hard surface store aisle would not provide sufficient friction to prevent a stepper enshrouded in plastic shrink wrap from sliding.

It was foreseeable that, without adequate warnings, a shopper would not be aware of the hazard to safety associated with attempting an in-store trial. Plaintiff’s actions were not reckless, nor did they constitute a willing assumption of risk. The placard’s depiction promoted the belief that it was not dangerous to step up and onto the product. The difference between what the placard depicted and what Plaintiff attempted was that, in the latter case, the product still was in its packaging. Plaintiff had no way of knowing that the difference was crucial.

The state-of-the-art in packaging afforded alternatives that were technologically and financially feasible. One would have been to package the stepper in a carton, printed with necessary product promotion and information. A shopper would have been less prone to step on a carton; furthermore, even if stepped on, a carton would have been less prone to sliding along a floor.

Result:

Verdict for Plaintiff.