cargo loading & securement – Packaging Expert Witness

Button batteries packaging case

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

The case of ego vs. testimony

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

For an expert, ego is a job requirement; otherwise, there is no justification for holding oneself out as more knowledgeable, than is the jury, the attorneys, and the judge, about a subject before the court. Too much ego, however, undermines an expert’s effectiveness, particularly when testifying at deposition or at trial.

Too much ego does not mean that the expert is egotistical, or worse, egomaniacal. Such extremes are difficult to mask and likely would have manifested themselves before a matter progressed to testimony. Too much ego is any amount that hurts the case; after all, an expert is retained to be an asset, not a liability.

Rational experts don’t intentionally sabotage their testimonial effectiveness; therefore, they must guard against doing it unintentionally. One safeguard is to avoid being needlessly defensive.

When testifying at deposition, the expert’s qualifications, through vetting, already has been accepted by the retaining attorney. When testifying at trial, the expert’s qualifications, through proffer, already has been accepted by the court. The expert should bear those acceptances in mind and not fall into a defensive posture, distracted from letting the soundness of the testimony prove his/her qualifications.

The opposing attorney will appear unimpressed, and, overtly or covertly, impugn the expert’s qualifications vis-à-vis the matter-at-issue. That’s the nature of the adversarial system, and the expert should not be seen as taking umbrage, as if to say, “How dare you, when I’m the smartest person in the room.”

The expert should not engage in verbal combat but should leave it to the retaining attorney and the judge to reel in an overreaching opposing attorney. The expert should refrain from giving snide responses or saying anything personally directed at the opposing attorney. The expert who descends to that level has lost perspective.

It particularly can be damaging at trial, when everything is on the line and so much time and resources have been expended in getting to that point. The last thing needed is for the expert’s ego to alienate the jury.

Regarding what’s important, it’s about the expert only to an extent; what’s most important is the retaining attorney’s theory of the case. In that regard, the expert should subscribe to a Hippocratic oath, of sorts, in that, first, do no harm.

An expert’s susceptibility to allowing ego to interfere with testimonial effectiveness might not be discovered during the vetting process; therefore, the retaining attorney needs to stay alert to warning signs.

It’s a warning sign whenever the retaining attorney’s responsibly for case strategy is challenged by the expert, beyond the giving of advice. It’s a warning sign, for example, when the expert resists any and all proposed changes in his/her Report, down to the last comma. More worrisome is the expert who ignores instructions, for example, when the retaining attorney, concerned with what’s discoverable by the opposing side, specifies the channels (phone, email, regular mail) through which communications are to be made.

The saying goes, “Check your ego at the door.” That might not be totally possible or even desirable for the expert; nonetheless, ego should not be allowed to negatively affect the testifying expert’s temperament and comportment.

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

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

Packaging expert discusses exhibits

by Sterling Anthony, CPP

Effective demonstrative exhibits leave jurors with a better understanding of the expert’s opinions than what they would have been left with otherwise. Not all demonstrative exhibits meet that criterion. Those that don’t are a waste of time, materials, and energy; worse, they can be counterproductive, if they confuse jurors.

The expert must know his/her opinions thoroughly, but not just in the professional sense; for, demonstrative exhibits should explain in ways that are juror-friendly. Any expert may utilize demonstrative exhibits; however, the more technology-immersed and/or exotic an expert’s field, the greater the need.

Demonstrative exhibits should fulfill their purposes, without competing with the expert; for example, exhibits should not allow jurors to read ahead of the expert’s comments. A good policy in that regard is for any one exhibit to feature only one opinion and to present it succinctly. Jurors won’t resent multiple exhibits as long as the purpose and effectiveness of each are evident. Jurors want to understand the issues. Jurors want to feel intelligent. Demonstrative exhibits should meet those jurors’ wants.

Experts should be mindful that their demonstrative exhibits might end up in the jury room during deliberations; but, of course, experts are not allowed in those sacrosanct quarters. The significance is that the exhibits should be designed to be understandable in the absence of the expert.

Demonstrative exhibits should not be any more hi-tech than needed; for example, transparencies can be just as effective as PowerPoint. Certain equipment, such as laptop computers and flash-drives, can be brought to court by the expert. Anything not as transportable should be arranged well in advance; furthermore, the expert should arrive early to court to confirm that all needed equipment is present.

As advance preparations go, none is more important than that between the expert and the retaining attorney. The expert contemplating demonstrative exhibits should get permission from the retaining attorney; after all, the development of such exhibits represents billable time by the expert. In requesting permission, the expert must explain why demonstrative exhibits would be helpful; after which, the discussion can proceed to the nature and quantity of the exhibits.

Often, the retaining attorney will be able to provide valuable guidance; however, regardless of how involved the attorney is in the development of the exhibits, it’s the attorney who must clear the way for their use, whether by stipulation from opposing counsel or by court approval. The expert who appreciates the time element never takes an eleventh-hour approach.

Depending on the types of demonstrative exhibits, the expert might have to involve other parties, such as graphic artists, animators, model-makers, etc. Here, as with anything that affects billing, the expert must receive permission from the retaining attorney.

No matter who else is involved in the development of the demonstrative exhibits, it’s the expert who should be ever-diligent. That’s because jurors aren’t concerned with the history of the exhibits, and nor should they be. Jurors, nonetheless, will form opinions of the exhibits, and by association, form opinions about the expert, and even the attorney who called him/her to the stand.

In summary, the expert who uses demonstrative exhibits needs to demonstrate mastery over those tools.

Sterling Anthony, CPP, is a consultant and expert, specializing in packaging, marketing, logistics, and human-factors. His contact information is 100 Renaissance Center P.O.B 176, Detroit, MI 48243. 313-531-1875. www.thepackagingexpertwitness@gmail.com

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 on the value of objections

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

Of all rules of testifying, there is one that a packaging expert should hold as inviolate: Always tell the truth. To do so, however, requires that the expert hear the question, understand it, give due reflection, and THEN give a truthful response.

As a consequence, at deposition and at trial, the expert needs to stay vigilant, constantly alert and attentive. It can take its toll, especially under lengthy examination.

Rare is the examination that is not interrupted by objections; and, when they come, the expert might regard them as respites, opportunities to tune out and to relax, as the attorneys wrangle. Such would be a mistake. An expert should regard objections as valuable information.

Since attorneys typically begin with the word, objection, before proceeding to declare what kind, all present are immediately put on notice. Just as immediately, the expert should STOP, even if in mid-sentence, even if in mid-syllable. If it’s a deposition, the expert should not make another utterance until the attorney-client gives permission to answer; if it’s at trial, silence should be maintained until the judge’s ruling. Such restraint might be difficult for inexperienced experts, victims of a misguided eagerness to demonstrate their ability to answer all questions.

An expert should understand that it’s not uncommon for the same objection to be raised by both attorneys, at different times during the testimony. The expert can stay focused by remembering that it’s an adversarial system. Attorney-clients want to protect their experts’ credibility and effectiveness; opposing attorneys want to undermine it. If, for example, an opposing attorney objects to form, to ambiguity, to the question as compound, or something else along those lines, the motive won’t be to clarify the question as a favor to the other side’s expert. The expert should be ever mindful that the operative word in the term, opposing attorney, is, opposing, no matter how seemingly congenial the attorney.

In contrast, an opposing attorney who’s disrespectful and overbearing is likely to draw an objection from the attorney-client. The expert should not regard the objection as merely protective nor as license to match the opposing attorney’s behavior; instead, the expert should regard it as an unspoken instruction to remain professionally calm. The stark contrast between the conducts of expert and opposing attorney will be evident in a deposition transcript and even more so before a jury.

In a different, although, related example, rather than regarding an attorney-client’s asked-and-answered objection as relief from the tediousness of repetition, the expert should regard it as an indication that the attorney-client is satisfied with the answer. An inexperienced expert might alter the answer, in an attempt to better make the point, thinking that the alteration is not substantive. That’s risky because it opens the door for the opposing attorney to exploit the differences in answers. An experienced expert, under these described conditions, will give the same answer to the same question, no matter how many times the opposing attorney asks.

On direct examination, the expert can benefit from certain objections from the opposing attorney. Good examples include: leading; argumentative; and, assumes facts not in evidence. Whether they come during a deposition or a trial, embedded in the question that drew the objection is the attorney-client’s preferred answer. Knowing that, the expert must determine whether it’s possible to ethically give that answer, consistent with the sworn oath. Incidentally, the same advice can apply during cross-examination, if the opposing attorney characterizes an objection made by the attorney-client as a speaking objection.

When during cross-examination the opposing attorney declares, “Objection. Non-responsive. Move to strike,” and it’s sustained, the expert should not attempt to append the answer to a later question. The backdoor tactic likely would draw the ire of the judge; furthermore, the expert could be seen as behaving like an advocate. An attorney-client who wants the answer in the record can solicit it through a properly-worded question during redirect examination.

An expert who has been adequately prepared by the attorney-client will know what will be asked during direct examination. That, plus the open-endedness of the questioning, might lull the expert into long narratives, even though the expert should be committed to complete, but succinct answers. To that objective, an experienced expert can recognize the attorney-client’s objection, even when it’s not in the classic form. If, for example, the attorney-client interjects, “Thank you, Mr./Ms. Expert for your answer,” the translation is, “You’ve said enough.”

On the other hand, if, during cross-examination, the opposing attorney tells the expert that the question has been answered, the expert likely will still be in the process of answering. The attorney-client likely will raise an objection, requesting that the expert be allowed to finish; but, even if the attorney-client doesn’t, the expert should insist on being allowed to finish. The expert should always remember: sworn testimony is carved into a permanent record; and, the expert will not have the convenience of having it assumed what would have been said had the expert finished the answer.

The expert should regard certain objections as red flags, regardless of which side raises them. Examples are, “Calls for speculation,” and “Calls for a legal conclusion.” At trial, the judge’s ruling might prevent the expert from answering; however, in a deposition, the attorney-client will give the expert permission to answer. Under the former objection, the expert should be careful not to give an answer that might suggest a propensity to guess. Such would undercut the expert’s reliability. Under the latter objection, the expert should be careful not to give an answer outside the expert’s area of expertise, assuming, of course, that the expert is not an attorney. Such also would undercut the expert’s reliability, in addition to exposing the expert to possible disqualification at trial.

Not all objections have been mentioned herein and they don’t have to be in order to make the point that an expert needs to know that there’s value in staying attuned to objections. If an expert demonstrates that knowledge, the attorney-client likely will raise no objections to retaining the expert in the future.

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.

The packaging expert witness on site inspections

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

A packaging expert witness’ performance in a site inspection depends on two factors: knowledge of the type of facility, process, machinery, or whatever happens to be at issue; and, preparation. No expert should be convinced of having knowledge in such quantities as to be able to go to a site inspection and “wing” it. On the other hand, without a requisite amount of knowledge, the expert’s preparation is sure to have deficiencies.

Having the knowledge and the ability to prepare notwithstanding, the privileges granted to the inspecting expert will depend largely on which side the expert represents. An expert inspecting the opposing side’s site, unsurprisingly, will be under more restraints than faced by an opposing expert. It’s prudent for an expert to communicate to the attorney-client what privileges are desired, so that the attorney-client can request them.

Regardless of how many privileges are granted, the expert can prepare accordingly, and, for example, need not arrive with camera, video recorder, or other equipment and not be permitted to use them. Similarly, communications between expert and attorney-client can spare the former from arriving at a site, expecting interviewing privileges, but learning belatedly that it’s not to be.

An expert should insist on being able to observe operations that are, indeed, in operation. Such daringness is justified from the common-sense perspective that there’s limited information and knowledge to be gained from dormant operations. Agreement as to what’s to be up and running should be detailed in a formal memorandum; and, if the opposing side withholds such agreement, the aggrieved attorney-client can assist the expert by threatening to cancel the inspection and/or threatening to present the argument to a judge.

Regardless of the side that retained the expert, an inspection at the other side’s site likely will be “one bite of the apple.” An expert who later realizes that something has been missed might not be accorded another inspection. It makes it all the more important for the expert and the attorney-client to agree on why the inspection is needed, what areas will be the focus, how it’s going to be conducted, and in what form the results will be communicated.

When both sides have an expert, it’s unusual for one to make a site inspection and not the other. It’s not unusual, though, for both experts to be present at the same time, a situation resulting from the host’s not wanting to schedule multiple dates, or perhaps, from one side’s wanting to witness what the other side does. Neither is it unusual for the attorneys to be in attendance. Among such company, an expert should be careful not to engage the opposing parties in conversation, other than friendly acknowledgements.

In all instances, an expert at a site inspection is a guest, there at the sufferance of the host; as such, the expert’s behavior should be professional, cordial, and respectful. It would be self-defeating for an expert to attempt to operate outside of pre-negotiated parameters; for, to do so risks a summary end to the inspection.

Finally, in addition to all of the aforementioned, site inspections always involve travel, sometimes including airfare, taxi, lodging, and meals. Whereas such expenses might be unavoidable, they obligate the expert to be cost-effective, by being efficient.

Packaging expert witness not omniscient

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

If there’s one answer that some testifying experts seem to have a hard-wired reluctance to utter it’s, “I don’t know.” By virtue of being an expert, that person is presumed to be knowledgeable; nonetheless, being omniscient is not in the job description.

There is nothing inherently wrong for an expert to say, “I don’t know.” In all instances it’s an admission, an acknowledgement, a confession, a concession; however, in no instance should it be a mea culpa.

There are answers that a testifying expert should have at the ready. That’s because, by then, the expert should be acquainted with the case file. In addition, by then, the expert should have been prepped, told what will be asked by the attorney-client and what might be asked by the opposing attorney. Having that storehouse of knowledge, an expert should bring a quiet confidence to the proceedings, committed to listening to the questions, understanding the questions, taking time to formulate answers, and, then answering truthfully. If that last step dictates an, “I don’t know,” so be it.

There are various ways that an expert can mishandle not knowing an answer; however, the worse is to give an answer that is factually incorrect. The consequence to the thusly exposed expert is not just embarrassment but discredit. Almost as bad is to deal in conjecture. Even if the expert’s preamble is, “I’m guessing…,” a fundamental principal of testifying will have been breached.

An expert should guard against beginnings that are defensive and apologetic, as exampled by, “I’m sorry, but I don’t know,” or, “I’m afraid I don’t know,” or, “I must admit, I don’t know.” Some opposing attorneys have a talent for triggering such responses through voice inflection, body language, eye-contact with the jury, or other tactics meant to imply that a reasonable expectation is for an answer other than, “I don’t know.”

If the follow-up question is “Why don’t you know?” the expert should not be intimidated, no matter how incredulously the question is posed. In the absence of a sustained objection by the attorney-client, an expert should be able to answer in a way that does not bespeak dereliction.

An expert should be aware that a line of questioning by opposing counsel might be designed to repeatedly draw the response, “I don’t know.” The expert should not succumb to concerns over being regarded as unknowledgeable nor to concerns over diversifying the responses. An expert who has come adequately prepared is not the best target for the aforementioned line of questioning, the reason being that opposing counsel will need to go increasingly farther afield to sustain the tactic. The opposing counsel who ventures into the irrelevant is not immune to taxing the patience of the Court and jury.

An expert should not confuse, “I don’t know,” with, “I don’t recall.” The latter should be reserved for instances in which the expert either once knew or might have known something but presently can’t bring it to mind. “I don’t recall,” is difficult to disprove; even so, an expert should not resort to it dishonestly. One who does might have the memory “refreshed” by being shown what was said in a deposition, for example. At such time, the jury will be keyed in, forming impressions on whether the I-don’t-recall claim was truthful.

An expert should never utter, “I’m not sure,” unless in association with having been asked, “Are you sure?” Then again, if the expert was not sure, the initial response should have been, “I don’t know.” Relatedly, when giving an estimate, the expert should let it be known that the response is an estimate; otherwise, “I don’t know,” is the advised response.

In summary, an expert should know that an essential part of testifying is the effective use of, “I don’t know.”

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