patent infringement – Page 2 – 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

The packaging expert witness on composing an Expert Report

By Sterling Anthony, CPP, expert witness in: packaging, logistics, marketing, warnings, patent-infringement, and cargo loading & securement.

From the onset, a packaging expert witness should regard an Expert Report as a communication of persuasion, the purpose being to convince stakeholders that the contained opinions are true within the standard of a reasonable degree of certainty. The stakeholders will vary in their willingness to be convinced, and the opposing side will be skeptical, if not hostile. The Report, therefore, should constitute a gestalt, the whole more than the sum of its parts.

In federal cases, an Expert Report must comply with the statutory elements detailed in Rule 26 of The Federal Rules of Civil Procedure; and, although an Expert Report in state cases isn’t governed under that rubric, it must embody certain elements, just to meet the threshold of professionalism.

Whether the venue is federal or state, an Expert Report should contain: the case caption; the expert’s name and business address; the client-attorney’s name and business address; a statement of purpose; a summary; a synopsis of the facts; an explanation of methodology; list of case materials reviewed; list of references i.e. books, articles, standards, tests, etc.; discussion of opinions; conclusions; statement as to the right to supplement; and, date and signature (notarized, if required).

As for aesthetics, the look of the Report should invite reading; however, as fundamental as that is, it’s only window dressing, if the Report fails in other key aspects. Opposing counsel will dissect the Report for opportunities to shoot holes in it. The experienced expert will not supply ammunition, in the forms of: poor grammar, spelling, and punctuation; poor paragraph composition; disjointed sequencing; imprecise wording; a lack of command of the facts; weak correlation between opinions and Counts contained in the Complaint; distortion and misrepresentation; and most damaging, faulty reasoning and fallacious logic.

An expert should not rely on the client-attorney as proofreader, despite the fact that no client-attorney will submit to opposing counsel or to the Court an obviously flawed Report. Opposing counsel, believing the Report to be flawed, will eagerly await deposition or trial. A worse possible consequence of a flawed Report is that the Court disqualifies the expert. Another incentive against composing an inferior Report: in some states, juries are given access to Reports. That aside, an expert can’t be effective in front of a jury if the majority of cross-examination is spent defending an ambiguous, or otherwise, flawed Report.

It’s common practice for a client-attorney to request strategic changes to the Expert Report. An example would be a rewording that more effectively captures a particular legal concept. What’s not common practice is for a client-attorney to have to essentially rewrite the Report, an unwanted expenditure of time and effort; moreover, if the expert is questioned under oath about “authorship,” the answer might cast the expert as a hand puppet whose supposed opinions are those of, and controlled by, the client-attorney as the puppeteer.

Regardless of how well a Report is (or isn’t) written, the client-attorney should not be blindsided by the opinions, because they should have been disclosed during prior discussions. An expert’s opinions should be independently derived and honestly held, but there’s no ethical requirement that those opinions be favorable to the client-attorney.

Faced with previously-disclosed unfavorable opinions, rather than commission an Expert Report, the client-attorney can evaluate options, for example, receptiveness to settlement. When it’s known that the opinions are favorable, a good policy is for the initial submission to be titled, Preliminary Report, a distinction to be removed after review and revisions. Added insurance is accorded if the Preliminary Report is read over the phone to the client-attorney before submission.

An Expert Report does not have an expiration date. It forever lurks somewhere, and the expert never knows when it might surface. The expert should bear that in mind with every syllable.

Not every expert is an excellent writer; however, since Report writing is integral to being an expert, a reasonable level of competency should be mandatory. An expert who doesn’t measure up in that regard lacks a key component in the delivery of services.

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.

A packaging expert witness should avoid indefensible opinions

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

A packaging expert witness can become infamous for indefensible opinions, and the consequences can be ruinous. It only takes one celebrated case, and celebrity comes easily in this era of 24-hour news channels, social media, and YouTube——all in addition to the traditional channels that attorneys tap in vetting an expert.

No expert would jeopardize a career, at least not intentionally; however, toxic cases don’t carry warning labels. An expert needs to develop perspectives that protect against the formulating of indefensible opinions, opinions that later will have to be worn around the neck like a yoke.

During initial discussions with a potential attorney-client, the expert should seek information necessary to determine whether the case falls within the expert’s expertise. Some attorneys are given to going beyond that point, generous with details. The expert politely should interrupt and announce an interest or decline further consideration. In the event of the former, the expert should offer to forward the pertinent documents, i.e. curriculum vitae, fee schedules, references, etc. That way, the expert won’t end up conflicted, if not chosen but afterward is contacted by the opposing side.

The greater threat is that too much initial information can trigger the hard sell on the part of an expert, who, eager to land the case, endorses the attorney’s theories, seemingly unmindful of yet not having reviewed any case materials. Such a scenario subsequently might develop along these lines: the expert is retained; and, afterwards, the expert formulates opinions shaped by the prior endorsement, rather than by objective and ethical analysis.

Even when information overload is not a factor, an expert can inadvertently end up saddled with indefensible opinions, typically under one of two scenarios.

One is that of the relatively new expert, desperate for business and willing to say whatever is thought to be desired. That expert is not sufficiently appreciative of the possible risk to reputation and to future business .

Although it might seem counterintuitive, the other is that of an experienced expert who feels insulated by an impressive curriculum vitae. That expert is not appreciative of the fact that such credentials make indefensible opinions all the more indefensible.

Any expert can expect to be portrayed unfavorably by the opposing attorney as a human vending machine: insert payment and withdraw the desired opinions. “Tell the Court, Mr./Ms. Expert, how much you are being paid to testify in support of the side that retained you.”

An experienced expert will recognize the question as the landmine that it is. The thornier task is to give a response that defends the expert’s integrity while setting a foundation for the defense of the forthcoming opinions. Be that as it may, if the opinions are prima facie indefensible, any attempt to dress them in different garb will reduce the expert to laughable.

For the expert who has given indefensible opinions, there is no refuse in blaming the attorney-client, particularly under the rationale that, had the expert not given the opinions, the attorney would have found another expert who would have given them.

Such is never the concern of an ethical expert; besides, no attorney-client should be averse to being educated about deficiencies in the theory. Thus educated, the attorney-client can weight options, such as settlement, or, if the education comes early enough, not filing the case.

The expert who gives indefensible opinions digs a hole as soon as they are conveyed to the attorney-client, and the hole gets deeper with time. The deepening continues when the indefensible opinions are incorporated into an expert report. From there, they become high-caliber ammunition at deposition, causing the opposing attorney to salivate over the prospect of going to trial. At trial, they cause jurors to roll their eyes incredulously and to disregard the expert. The sequence is bad in its own right, but as previously noted, it won’t be limited to that one specific case.

The attorney-client likely will go unscathed, the case standing as a testimonial to a willingness to go any length to aggressively represent a client. You can’t win them all; therefore, how doggedly an attorney fights means a lot.

An expert is not accorded the same pass. Justifiably. An expert’s stock-in-trade is opinions; therefore, an expert who provides faulty wares can’t expect that fact to go unnoticed

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.

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 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.

A packaging expert should be responsible AND responsive

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

A packaging expert witness is responsible for the delivery of services, such as consulting, analysis, site inspection, testing, opining, reporting, and testifying. By responsible is meant an obligation to practice decision-making and control and to be accountable for results. Having credentials and ethics are necessary but not sufficient for the delivery of competent services to the attorney. An expert also needs to be responsive, demonstrating the ability to respond quickly, especially under deadlines; however, the quick response should not be at the sacrifice of quality.

Sometimes an expert will be retained late in the game, for example, after the attorney has failed to obtain an anticipated settlement and soon has to disclose an expert, and perhaps, that expert’s expected topics of testimony, should the case go to trial. The attorney will inform the expert about the timetable and perhaps offer an apology or two. At that point, the expert should not accept the case UNLESS the expert is positive of being able to give the case the requisite priority. An expert’s reluctance to decline a plausible case is understandable, in that every expert desires a sustaining caseload; however, the truly professional expert devotes whatever levels of time and resources that are necessary.

Even under less harried conditions, the expert should proactively exercise time management practices. Every time an expert receives case materials from the attorney, the expert should send an acknowledgement. That’s not just a courtesy; it starts the clock ticking. Even if the attorney’s cover letter open-endedly says, “Please contact me after your review,” the expert should not take inordinately long. An attorney, aware of the volume of materials sent, has an idea——even if unexpressed——of what constitutes a reasonable time for review, and, therefore, will be impressed if the expert delivers before then.

When the need for review is on the part of the attorney, the expert has another opportunity to score points. A prime example is the Expert Report. An attorney appreciates the convenience of receiving the report in ample time to: review; suggest revisions; have them made; and, review again. It’s not unusual for there to be more than one round of that sequence; therefore, an expert should submit the report accordingly.

Any type of report submitted by an opposing expert might require a response; and, not to file one could result in a strategic disadvantage. Under that scenario, an expert should: analyze the report; formulate opinions; discuss them with the attorney; and, write a rebuttal. After that, the aforementioned review/revision/review sequence tacks on more time. An experienced expert will prove equal to the task.

Another area of services in which an expert should be time-conscientious is that of testing. An expert experienced in the type of case at issue would know at the onset if testing is needed and would have a reliable idea of the type. Communicating that information to the attorney allows for effective scheduling, thereby avoiding a situation wherein neither the testing can be conducted nor the results ascertained in time for the intended use.

More examples should not be necessary to make the main point: there is a time element, of varying urgency, to much of what an expert does, giving the expert repeated opportunities to build on a reputation for on-time delivery.

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 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 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.