Tutorials – Packaging Expert Witness

Packaging expert witness discusses crates

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

Crates are a form of packaging, constructed of wood, having a base, front, back, ends, and top. Designs range from open-lattice to fully-sheathed. Because of size and weight, crates have design features that allow them to be handled mechanically.

The sturdiness associated with crates explain their choice in applications involving items that are large and heavy; in fact, it’s not unusual for a crate and its contents to weigh hundreds, even thousands, of pounds. In addition to size and weight, the contents typically are of high monetary value.

When a crate fails, the result can be property damage, sure, but also personal injury. Especially when it’s the latter, triggering litigation, either or both sides would be wise to retain an expert.

The expert should have training, knowledge, and experience in the myriad factors involved in the specification, design, construction, and testing of crates; furthermore, it’s always a valued plus when the expert has served on other cases involving crates.

Strict liability

Determining whether a crate was unreasonably dangerous or defective, and if so, whether by a design defect or by a manufacturing defect, is seldom straight forward.

Even two crates built from the same specification can be meaningfully different, due to factors such as the quality of wood and the method of assembly.

Sometimes, only photos are available, because the actual crate has been scrapped. On the other hand, when the involved crate is available, it’s not unusual for that crate to have been damaged, either by an untoward incident or by having been opened. Consequently, an on-site inspection, if not conducted exactingly, likely will overlook pertinent information, resulting in a waste of time and expenses.

Negligence

The determination of whether there has been a breach of reasonable care is multifaceted. Customization is the norm in crate design; therefore, invoking a relevant standard (or portion thereof) requires knowledge of, among other things, good manufacturing practices and safe operational practices, in order to allege what a defendant knew, or should have known.

Complicating matters further is that breach of care is not limited to crate construction; it can extend to attending activities that can affect the safety of personnel and cargo. Those conditions include: loading and immobilization of contents; transportation; storage; material handling; method of opening; and, method of removal of contents.

Failure-to-warn

Determining whether a warning was warranted in regard to a crate requires delving beyond hazards that are inherent with any large, heavy object, for such hazards are subject to an open-and-obvious argument. On the other hand, that an unfortunate incident occurred, is not proof, in and of itself, of a need for a warning. More is required for that determination.

In conclusion, crates constitute a category of packaging that’s far different from retail and other categories; as such, an attorney should vet accordingly.

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 discusses miscommunications

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

Packaging is a medium, using graphics and structure to communicate. The communications can be explicit, for example, that which is conveyed by copy and images. The communications also can be implicit, forming the bases for any variety of perceptions. With any form of communication, the message intended is not always the message received; likewise, packaging sometimes miscommunicates, with varying consequences.

Children, because of their limited powers of discernment, are particularly vulnerable to miscommunications. Child-resistant (C-R) packaging is meant to address that vulnerability, but is best effective in the most foreseeable situations, for example, when the product embodies an inherent hazard. There are less obvious situations, in which the hazard derives from a miscommunication by the packaging. Examples include instances in which children mistakenly consumed products because the packaging was similar to that of another product. A canister of a leading brand of cleanser resembles that of a leading brand of grated Parmesan cheese. A box of pet food can be mistaken for cereal. See-through packaging can be a problem; for example, a liquid pine cleaner resembles apple juice, as does red shampoo resemble soda. By appearances, the contents of laundry detergent pods can be mistaken as edible.

A different type of miscommunication is when the elements of the packaging contradict one another. The labeling on the back of an aerosol can of furniture polish warns against its use on wooden stairs; however, on the front of the can are drawings of use applications, including one of a set of stairs with banisters. The accompanying copy mentions——among other applications——that the product can be used on bannisters; unfortunately, a consumer, having not read the copy, misinterpreted the drawing, sprayed her stairs, and suffered a fall. The misinterpretation aside, the packaging miscommunicated, in that, even if a consumer used the product on bannisters, the spray could land on the stairs.

When miscommunication by packaging results in litigation, either party should retain an expert, ideally one whose background includes experience in package research and design. Such as expert is well-positioned to opine whether the miscommunication was reasonably foreseeable and what methodologies would have foretold of likely miscommunication.

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 discusses stretch-wrap

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

Stretch-wrapping is the most common method for unitizing cargo onto a platform, typically a pallet. The method involves the tight application of plastic film, in overlapping layers, around the cargo, such that the cargo is held together as a unit that can be handled mechanically. Application can be done manually; however, at modest-to-high production rates, only application by machinery is practical.

Multiple factors play into the proper choice of stretch-wrap, chief among them: manufacturing method, thickness, toughness, aesthetics, and, of course, stretch characteristics. The proper choice, therefore, is application-specific, matching the film to the requirements that the film must fulfill. Another way of stating it is that the film must maintain load integrity (keep the load intact) until intentionally removed at the point of destination.

Throughout its movements in the stream of commerce, a stretched-wrapped load will encounter a variety of forces, induced by the activities of transportation, materials-handling, and storage. The forces are vibration, shock, and compression, and, whether singularly or in combination, can cause stretch-wrap to fail. The result is a load that can shift and even collapse.

Stretch-wrap never is the sole guarantor of load integrity; rather, it is a vital component of a system, which includes the aforementioned activities of transportation, materials-handling, and storage. Stretch-wrapped cargo should be loaded and secured within a transportation vehicle in a manner that renders the cargo immobile throughout transit. Stretch-wrapped cargo should be mechanically handled (by forklift, for example) in a manner that serves to keep the load intact. Stretch-wrapped cargo should be stored in a manner that serves to keep the load intact.

There are forces inherent in transportation, materials-handling, and storage that never can be eliminated, but, nonetheless, can be held within manageable limits. When that’s done, yet load integrity is compromised, it’s justified to investigate stretch-wrap as the possible weak component of the system. That’s because a properly stretch-wrapped load should withstand the forces under all reasonably foreseeable conditions.

Mention should be made of the role of stretch-wrapping machinery. The machinery not only should undergo scheduled maintenance but also should undergo daily calibration checks to assure that it’s operating within specified tolerances. In the absence of such Quality Assurance methods, loads can be stretch-wrapped with insufficient tension, among other negative results.

When stretch-wrap fails due to inadequacies in material or machinery, compromised load integrity is a predictable result. When it leads to damage to cargo or injury to people and litigation ensues, the parties would be wise to retain an expert.

The expert should have knowledge, experience, and training in the specifying and procurement of stretch-wrap and stretch-wrapping machinery, in addition to how they are mated for optimal results.

Packaging expert witness discusses pallets

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

Pallets carry 95% of the world’s cargo, and 90% of pallets are constructed of wood. Those overwhelming percentages establish wood pallets as the linchpin of logistics, affecting the cost, efficiency, and safety with which transportation, material handling, and storage are performed.

The pallet, on surface, is a simple concept, a platform on which items are placed, allowing the now palletized load to be moved mechanically, such as with a forklift truck. On the other hand, pallets should be engineered, designed for structural integrity, under all reasonably-foreseeable conditions encountered from the time they’re loaded until the time they’re unloaded.

Pallets need to embody the requisite combination of strength, stiffness, durability, functionality/compatibility, and affordability.

Strength refers to load-bearing capacity.

Stiffness refers to resistance to undue bending and flexing.

Durability (if not designed for just one trip) refers to the ability to give service across multiple trips.

Functionality/compatibility refers to being consistent with the materials loaded, material handling equipment, transportation regulations, etc.

Affordability refers to FIRST that the pallet be fit for its intended purposes and THEN that it be attainable at the lowest comparable price.

Pallets are of two design categories, referring to how the base is constructed: stringer and block. A block pallet is 4-way, meaning that material handling forks can enter from 4 directions (front, back, and ends). A stringer pallet is 2-way (ends) but can be made 4-way with spaced notches for fork entry, but at the sacrifice of weakening the pallet and making it more vulnerable to damage.

Regardless of design, pallets are different than mass-produced items that (barring a manufacturing defect) are indistinguishable, one from the other. More so than being manufactured, pallets can be said to be assembled and crafted; therefore, there is an inherent potential for variation, even across pallets built from the same design. Some factors that can contribute to said variation include:

Lumber. A pallet’s physical properties are influenced by the type of wood, that is to say, whether hardwood (from deciduous trees) or softwoods (from coniferous trees). Within any one type of lumber are grades, reflecting how free the lumber is from such defects as bark, knotholes, and dimensional irregularities. Yet another important consideration is the degree to which the lumber has been kiln-dried or remains green.

Number and positioning of deck boards. A deck comprised of abutting boards, with no spaces in between——all other things being equal——is sturdier than a deck with spaced boards. Of the latter type of decks, the greater the spacing the less sturdy and the greater the opportunity of an unstable load.

Type, number, and positioning of fasteners. Whether staples or nails are used affect how well the components remain attached, and within each category of fasteners, there are different sizes, with different holding strengths. How many fasteners are used affects how steadfastly the components are joined. Whether the fasteners are patterned in a straight line or staggered not only has an effect on holding strength but also on how likely a board, for example, might split.

By industry standards, any company that loads a pallet is responsible for the fitness of the pallet, and by extension, the fitness of the palletized load.

When pallets fail, the immediate consequence is that the load becomes dangerous to move, prone to tilting on the forks or even falling off. The danger to anyone in the vicinity hardly needs elaboration. Pallet failure also can occur during storage, with the sudden collapse of the load. Failure also can occur during transportation making the unloading——and even the opening of the doors of the equipment——hazardous.

When pallet failure causes or contributes to cargo lost or personal injury and litigation ensues, either party would be wise to retain an expert. The expert should have knowledge of, and experience in, the design, specification, sourcing, inspection, and care of pallets.

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 discusses corrugated boxes

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

At least 95% of consumer non-durables are shipped in corrugated boxes, a statistic that speaks to the many positives of corrugated board.

Think of corrugated board as sandwich-like structures, wherein a wavy (hence, the name, corrugated) board is glued between flat, liner boards. The wavy board is called flute and comes in various designations, the most popular being A-flute, B-flute, C-flute, and E-flute. The flutes differ in terms of vertical height and number per linear measure.

The majority of corrugated boxes are single-wall, meaning a flute between two liners; however, corrugated boxes come in double-wall and triple-wall, combining the requisite number of flutes and liners.

Corrugated boxes must have sufficient strength to protect their contents and to endure all reasonably-foreseeable environments associated with said protection; however, the seeming simplicity of corrugated boxes belies the complexity of designing them, given───in no way an exhaustive list───the many combinations of board grades, flute sizes, adhesives, coatings & treatments, and basis weights (a measure of density). In recent times, the era of sustainability has fostered increasing amounts of recycled content in the composition of corrugated boxes, complicating the prediction of and the measurement of performance.

So it turns out that corrugated boxes can be unfit for their intended purposes due to any of the many factors related to their design and manufacture; additionally, unfitness can be the result of pre-manufacture conditions, such as how the corrugated board was stored. Given the aforementioned predominance of corrugated boxes as shipping containers, and the many factors involved in same, failures, of varying degrees of seriousness, are inevitable.

When corrugated boxes fail, product damage is a decided possibility and so too is injury to people. One such scenario is the collapse of a palletized load caused by the inability of the lowermost boxes, in particular, to bear the superimposed weight. Whether litigation is in the form of an insurance claim for damaged goods or in the form of a personal injury/product liability suit, either Plaintiff, Defendant, or both might seek the services of an expert.

The expert should be knowledgeable about, and experienced in, all major aspects of the design, development, and specification of corrugated boxes. Another necessity is a matching expertise in the processes involved in the production of corrugated board and its conversion into boxes. The expert also should be well-versed in the laboratory testing of both corrugated board and corrugated boxes. Additionally, the expert should have a background in logistics and an acquaintance with the associated disciplines of transportation (including the regulations governing corrugated boxes), materials handling, and storage, along with the challenges they present throughout the supply-chain.

Packaging expert witness discusses levels of packaging

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

Packaging is first and foremost a system. The physical component of the system—— meaning what’s combined with the goods——comes in three levels, appropriately named: primary, secondary, and tertiary.

Primary packaging is in direct contact with the goods.

Secondary packaging contains one or more primary packages.

Tertiary packaging unitizes the two other levels.

An example of the interrelationships among the three levels is: a can (primary) of soup; a corrugated box (secondary) containing dozens of cans; and, the unitization (tertiary) of dozens of corrugated boxes onto a pallet, strapped and stretch-wrapped.

The traditional definitions notwithstanding, the lines of demarcation among the levels at times can blur. A box for cereal is considered a primary package, although an inner bag is what’s in direct contact with the product.

Not all three levels are present in every type of product; for example, sacks (primary) of fertilizer are palletized (tertiary) and there’s no secondary packaging.

Illustrating a different point, a wood crate and a metal rack perform as primary, secondary, and tertiary packaging.

What never blurs and what is always the case is that the levels are system components that should perform for a combined optimal result. The performance of any one level impacts the performance of the others. If, at any level, the packaging proves unfit, the results are never positive, sometimes causing damage to goods, or of greater concern, sometimes causing personal injury and even death.

In the case of substantial damage to goods and more certainly in the case of personal injury, litigation can ensue. When it does, one or both sides will need a packaging expert. But what should that expert bring?

The expert should be experienced in package design & development at all three levels. The expert also should be experienced in packaging-line operations and the involved machinery, calibration, trouble-shooting, and record-keeping. The expert should be conversant with applicable regulations and standards-of-care and be able to opine on what’s technologically and financially feasible. Overall, the expert should, indeed, be expert, in managing packaging for functionality and safety, consistent with reasonably foreseeable conditions encountered through the service life of the packaging.

Packaging expert witness discusses functions of packaging

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

Packaging performs these functions: containment, protection, communication, and utility. Any given packaging attribute can be categorized under one of the functions. Because the functions are interrelated and the lines of demarcation overlap, a given packaging attribute can be categorized under more than one function.

Containment. Packaging restrains a thing or things within prescribed confines, UNTIL such restraints are intentionally removed.

The function is typically associated with the concept of contents: for example, the packaging contains the contents until the packaging is opened and the contents are removed.

A quite different example is lumber, with the packaging consisting of strapping. Here, the packaging keeps the lumber held together until such function is no longer needed.

Examples of the containment functions are of endless variety; however, what they have in common is, that, at some point, packaging and something else are combined into a packaged unit, and that combination should stay intact until intentionally separated.

Implicit in the foregoing comments is that the containment function be maintained throughout all reasonably foreseeable conditions, notably, those associated with handling, storage, transportation, and stocking——among other activities and environments.

When packaging fails the containment function, results can include leaks, spills, and things leaning, rolling, tumbling, and falling, easily leading to injuries and fatalities.

Protection. Protection and containment are so much interdependent as to be almost indistinguishable; however, there are some differences. Packaging provides protection to that which is packaged, against harmful forces. Said forces are shock, vibration, compression, temperature, and atmosphere——just to name the main ones.

The packaging must be imbued with the requisite strength and properties to provide protection. Depending on circumstances, multiple levels (primary, secondary, tertiary) of packaging are applied (see tutorial on levels of packaging).

When packaging fails the protection function, the impacts can range from rendering whatever has been packaged merely blemished, to rendering it unfit for intended purposes.

The protection function is not limited to that which is packaged. It must extend to people, namely, whoever reasonably can be expected to encounter the packaged entity. If, for example, the contents have the potential of inflicting harm, perhaps as a consequence of an inherent property, such as corrosiveness, the packaging must serve as a protective safeguard.

In instances in which the contents ordinarily are deemed safe but can be dangerous in the possession of particular persons——children are the quintessential example——packaging, through features such as child-resistant closures, must provide adequate protection.

Protection isn’t limited to individual things but also extend to collections or assemblies. Cargo that has loosened or otherwise been compromised, such that it cascades down onto the person opening the doors of a truck or intermodal container, for example, has not been protectively packaged. So too, when a packaged load weakens during handling or storage to a degree that it poses a safety hazard.

When packaging fails the protection function, the results can be damaged or loss goods, leading to injuries and fatalities, and both.

Communication. The communication function reflects the fact that packaging is a medium. Packaging communicates through its graphics, that is to say, through its labeling, including the printed word, symbols, icons, images, colors, and fonts. It also communicates through its structure, i.e. size, shape, and composition, while engaging any of, to all of, the five senses. Especially as applied to retail goods, packaging, through its communication function, is a potent marketing tool that can impart shelf-appeal and give a brand a competitive advantage.

But the communication function of packaging also is vital in the conveyance of warnings and safety instructions (hereafter, warnings). A wide variety of packaged goods pose hazards that might not be known to a reasonably alert and prudent user, thereby triggering a duty to warn on the part of the product marketer. Even when a user has some familiarity with the nature of a hazard, a warning can serve as a valuable reminder.

The easier determination, in the failure-to-warn sense, is when there’s a duty to warn but no warning is provided. The more difficult determination is when a supposed warning is not adequate, in that, an inadequate warning is tantamount to no warning at all.

An adequate warning abides by a variety of factors related to what the warning says (content) and the framework within which it’s presented (format). Specific to packaging, and in addition to content and format, other issues factor into adequacy. One is conspicuity, how easily the warning can be perceived. A warning must be prominently displayed, such that it stands out from the surrounding visual elements.

When packaging fails the warnings component of the communication function, the results can be an unreasonably dangerous product, leading to injuries and fatalities.

Utility. Packaging facilitates the interaction between people and what’s packaged; as such, the utility function is also referred to as the convenience function.

A feature that’s typically associated with utility is that of easy opening. As innocuous as that might sound, it can have a safety consequence, if an instrument (a knife?) is used and the instrument cuts fingers. Then again, there are types of packaging, such as clamshells, that can bear sharp edges that can cut all on their own.

A different example demonstrates the utility function on two levels. A corrugated box with die-cut slots for inserting one’s hands facilitates manual handling; however, how safely the handling can be performed is contingent on the location of the slots and the construction of the box. By contrast, unitizing dozens of those boxes on a pallet facilitates mechanical handling; however, how safely the handling can be performed is contingent on how solidly the unit has been assembled, as to pallet pattern, strapping, and stretch-wrapping.

When packaging fails the utility function, the results are inconveniences as to time and effort, at minimum, and injuries and fatalities, at most.

In summary, packaging performs only a handful of functions; nonetheless, they can take on a wide variety of complexities that have a direct impact on safety. As established, failure in any function can result in injuries and fatalities. When that happens, litigation is mostly a foregone conclusion, taking such forms as product liability, personal injury, failure-to-warn, and insurance claims.

Packaging expert witness defines packaging

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

Whether at a deposition or at trial, an expert might be asked to define his/her specialty. In most instances, the response can be kept short without undue sacrifice in comprehension, for example: Marketing is a business discipline concerned with the identification of customer wants and needs and the fulfillment of those wants and needs with products and services.

Unless a specialty is arcane, preexisting familiarity on the parts of the stakeholders (i.e. attorneys, jury, and Court) likely will only need to be confirmed. Packaging is an exception; for, the familiarity that practically everyone claims is based on misconceptions. That’s because what most people have in mind are packages, understandable given that packages are ubiquitous in our lives——in stores, in markets, and in our homes. But packaging and package are not synonymous terms: a package is an element; packaging is a system.

Definition:

Packaging is a system, within which, containers, materials, accessories, and components are combined to enable and facilitate the manufacture, distribution, and marketing of goods.

Containers include those that most readily come to mind, such as bottles, jars, cans, boxes, cartons, bags, pouches, wraps, trays, tubes, etc., but also the likes of sacks, crates, barrels, bins, and racks. The categories of products that utilize the containers include consumer non-durables, institutional, military, and industrial.

Materials can be rigid, semi-rigid, or flexible, used singularly or in combination, namely: wood, paper, paperboard, metal, glass, and plastics.

Accessories include closures, labels, stretch-wrap, shrink-wrap, seals, ties, fasteners, strapping, dunnage, cushioning, and adhesives.

Components include pallets, slip-sheets, and skids.

Containers, materials, accessories and components comprise the physical packaging, and their combination with goods and products is at the core of the system. There are components of the system that precede that combination and others that proceed it. The former includes research, design, development, sourcing, testing, trials, receipt, storage, line-feed, and line machinery operations. The latter includes line-takeaway, and unitizing, in addition to those components enacted upon the now packaged goods, namely: in-house storage, transportation, warehousing, selling (whether through retail or another form of acquisition), use, and disposal/reuse.

The overwhelming majority of goods require packaging, the exception being raw materials, in bulk, for example, ore. The more the value that’s added to raw materials through manufacturing and processing, the more the need for packaging. Without packaging, as herein defined, the mass manufacturing, distribution, and marketing of goods would not be possible, and, hence, nor would the associated conveniences, notably, uniformity of quality, time-saving, labor-saving, and personal health & safety. An example: rather than modern, self-service retailing, we’d still be in the era of the cracker barrel store, the old-fashioned apothecary, and the nails-scooped-into-a-paper bag-hardware store.

For all its contributions to our quality-of-life, packaging’s variety and complexity renders it subject to an equal variety and complexity of issues, and depending on the nature of an issue and its consequences, litigation might ensue. Packaging-related litigation has been known to include product liability, personal injury, failure-to-warn, falling merchandise, material-handling safety, cargo loading & securement, insurance claims for loss and damaged cargo, patent infringement, and trade-dress infringement——the list not offered as being exhaustive.

An attorney involved in packaging-related litigation will recognize the need for an expert, who, if required, can also serve as an expert witness. But what should the attorney seek in an expert, beyond, of course, talents related to the facts of the case? Ideally, the expert will have expertise, experience, education, training, and an overall background that empower the expert to deliver services from multiple perspectives. In contrast, if, for example, the curriculum vitae shows that the expert’s career(s) have been spent wholly or mostly in a single industry or institution, that expert’s approach might be commensurately restricted. On the other hand, the approach of an expert whose credentials are relevant AND diversified can enable greater creativity and keener insights.

Past employment in industry is a plus, especially when it includes managerial positions; for, it bestows insider’s knowledge that’s difficult, if not impossible, to otherwise obtain. Current work as a consultant is valuable, particularly of aid in benchmarking and the determination of best practices and state-of-the-art. A stint in academia bespeaks honed skills as a teacher and a communicator, useful throughout a case and in front of a jury. Rounding out the profile, commitment to one’s specialty, as evidenced by memberships, offices held, and certifications add to credibility.

In summary, by definition, packaging-related litigation is fraught with a multitude of factors, necessitating that, in the vetting of candidates, the attorney seeks the best “package deal” in an expert.