patent infringement – Page 3 – Packaging Expert Witness

When packaging expert witness and attorney first talk

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

An attorney and packaging expert have their initial conversation. Common sense allows certain motives to be ascribed to the parties: the attorney wants to know whether the expert deserves further consideration; and, the expert wants to know whether to seek further consideration. Those motives are interdependent, but herein are discussed from the perspective of the expert.

After the attorney has identified himself/herself and before the conversation begins in earnest, the expert should ask how the attorney learned of him/her. The attorney doesn’t always volunteer the information, though not intentionally. If the expert advertises, it’s good business basics to know what’s working.

The expert should want only enough details to determine whether the case is within his/her bailiwick. Beyond that, the expert runs the risk of being conflicted out of the case, should the expert not be retained by the attorney but opposing counsel calls. Another risk is that the more details supplied, the more the unspoken expectation of a response from the expert. It is not the expert’s obligation, at this juncture, to opine on the merits of the case. There’s time for that after the expert has been retained.

The expert should be cordial and considerate. The expert can be both without being reluctant to steer the conversation, as needed; for example, as soon as the expert has sufficient details, the attorney should be informed, “Yes, Counselor, I’m qualified to serve as your expert;” or, “Thank you, Counselor, but I’m not the expert for you.” If it’s the former, the expert should provide a concise narrative on qualifications, highlighting those aspects relevant to the case. Then, the expert should offer to send pertinent information——curriculum vitae, fee schedule, references, and whatever else the attorney might reasonably request.

If all of the heretofore advice is followed, the result will be a relatively short and to-the-point conversation. That’s a good thing. The phone call is business, not social. Both parties are assumed to have various demands on their time; therefore, there’s a need for effectiveness and efficiency. No matter how short the call, the expert, unavoidably, beyond questions and answers, conveys much for the attorney’s consideration. There’s the expert’s command of language and ease-of-expression. Whether the delivery is halting, professorial, stilted, fluid, or otherwise, the attorney is justified in regarding it as indication of what it would be like to work with that expert in the important realm of communications. It’s equally justifiable to regard delivery as indication of how the expert would come across in a deposition and in court.

If, at the conclusion of the conversation, there’s something further to pursue, the expert’s motto should be, promptness. Whatever has been promised should be fulfilled with dispatch; otherwise, the expert gives the impression of being less than reliable.

It’s rare that an attorney will think, “You had me at, Hello.” That fact notwithstanding, for the expert, the initial conversation is a unique opportunity, in that, if not handled competently, no other opportunities will be forthcoming——at least, not from that attorney.

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com

Packaging expert witness on warnings case

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

Case Synopsis:

A mother purchased a plastic tub of Plaster of Paris at an arts-and-craft store for a project with her daughter. Said project involved making a cast of the daughter’s hand. After mixing the Plaster of Paris, the mother told the daughter to insert the right hand. The plaster hardened, entrapping the daughter’s hand, during which time, the daughter complained of a burning sensation in that hand. After various failed attempts to free the daughter’s hand, the mother did so by breaking the plaster with a hammer. By then, the daughter had incurred burns to the hand, so severe that surgery and partial amputation of fingers resulted.

The ensuing litigation against the manufacturer of the Plaster of Paris alleged that the product was defective and unreasonably dangerous due to failure-to-warn.

I was retained by the attorney for the Defense.

My opinions:

A duty to warn manifests when a product embodies a hazard, such that a reasonably prudent and alert person nonetheless needs to be informed/reminded and instructed, in order to be able to behave in a manner that avoids harm. To be adequate, a warning must conform to well-established guidelines as to content and format.

The Plaster of Paris was not defective nor unreasonably dangerous. Adequate warnings were prominently displayed on the packaging (plastic tub). The warnings, rendered in capitals, included statements directly relevant to the incident, namely: AVOID CONTACT WITH SKIN AND EYES; WHEN MIXED WITH WATER, THIS MATERIAL HARDENS AND THEN SLOWLY BECOMES HOT; DO NOT ATTEMPT TO MAKE A CAST ENCLOSING ANY PART OF THE BODY; and, FAILURE TO FOLLOW THESE INSTRUCTIONS MAY CAUSE BURNS.

The mother admitted in her Deposition that she had read the warnings in the store and again at home; irrespectively, she claimed that she did not voluntarily assume risk because she was not left with an appreciation for the degree of the hazard and the extent of the risk. In support of her claims, the lawyer for Plaintiff had argued in the Complaint that there were differences in wording between the warnings on the packaging and those on the Material Safety Data Sheet (MSDS).

Plaintiff’s claims notwithstanding, the warnings on the packaging were unambiguous. The mother was not claiming that she could not interpret their meanings; rather, the mother chose not to comply. Such was not the fault of the warnings, since warnings can’t force compliance; after all, people are known to intentionally disregard red traffic lights or even flashing railroad-crossing signals. A warning on a package and a warning on a MSDS are directed to separate readers (the consumers of the product and the employees of the product manufacturer, respectively). The two don’t have to be identical syllable-for-syllable, only adequate for the given reader. In the case-at-issue, the differences in wording were neither substantive nor causal to the incident.

Result: The case settled.

Packaging expert 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.

7 ways attorney derives more from packaging expert

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

Engage the packaging expert as early as feasible. Any veteran expert can recount instances of being contacted by an attorney who’s under a time crunch, practically needing an expert yesterday. Whatever the reasons behind the delay, opportunities have been lost. There’s a shorter time for the vetting process, especially with multiple candidates. Even if the attorney has a particular candidate in mind, that candidate might not be available, worse if the unavailability is due to having been retained by an opposing attorney. It shouldn’t be just about finding an expert who can perform under tight timing; for, whatever the performance, it arguably could be better, given more time.

For Plaintiff attorneys and Defense attorneys, alike, being proactive pays dividends, especially for a Plaintiff attorney who’s not sure of the merits of a contemplated case. Before filing the Complaint, with Discovery being scant, it’s likely that it’ll only require a few hours of an expert’s time to provide an opinion. If the expert performs impressively, and regardless of the opinion rendered, the attorney will be left with either of two favorable options: file and retain the expert; or, not file but remember the expert for future cases.

Set ground rules for the expert. Since every attorney has a preferred way of working with experts, those preferences should be made known from the onset. Attorney and expert comprise a working relationship; however, it’s not one of equals. The expert is not the advocate, and, therefore, should defer (within ethical limits) to the attorney’s ways of working a case. That’s not to suggest that the attorney needs to be a micromanager; nonetheless, it’s prudent not to leave certain issues to assumption.

An issue that illustrates that fact is work-product, more specifically, what is and isn’t discoverable. The attorney’s position on note-taking by an expert is an example. Whatever the position, does it extend to the annotating of deposition transcripts? Does the attorney take different positions depending on whether the case is federal or state? Does the attorney take different positions depending on whether the expert has been retained to only consult or to also testify? No expert wants to compromise whatever privacy privileges that attach to work-product, but necessary to such avoidance is that the attorney establishes ground rules.

Address problems with the expert immediately. No problem should be considered too small to address, although the response should be commensurate with the size of the problem. Not to do so is to implicitly endorse the problem, thereby increasing the probability of repeat or exacerbation.

While acknowledging that a problem can originate from either party, the following example addresses one from the perspective of the attorney: taking issue with——or, at least needing further explanation about—— an expert’s invoice. The expert should be able to explain and justify every item of the invoice, ideally with documentation to the attorney’s satisfaction. A problem (and it’s a big one) that never should arise is billing for work that has not been authorized; for, that’s an indication of an out-of-control expert.

Don’t choke the expert with purse strings. An attorney owes cost-effectiveness to the client; however, it would be a contradiction to that maxim to prevent the expert from performing necessary work, simply for purposes of expenses. If, for example, a site inspection by the expert is advisable or if it’s advisable that the expert see, handle, examine, etc., an exemplar, the attorney should authorize such activities. The alternative is to jeopardize the expert’s credibility. That’s a handicap that won’t escape the notice of an experienced opposing counsel, particularly if the expert’s expertise is central, for example, a packaging expert in a case alleging an unreasonably dangerous product due to defective packaging.

Frugality need not be discarded, though. Flying coach, moderate lodging, and modest dining are common-sense practices to which no expert should object. The expert can further contribute by arriving with a well-conceived agenda that is carried out with dispatch, saving time and money.

Challenge the expert’s creativity. Attorney and expert are experienced in the type of case that brought them together. Whereas the upside is self-evident, the downside can be underappreciated. The more times something is repeated, the greater the chance that the thing will be done by rote. If it ain’t broke don’t fix it. A better philosophy: If it ain’t broke, improve it. The case objectives never change: prove or disprove the allegations to a preponderance of the evidence; however, success in the pursuit of the objectives can hinge on creativity.

The expert should approach the case from multiple perspectives, constantly searching for something overlooked, something hiding in plain sight that can be utilized for a competitive advantage. An expert can endorse the attorney’s theories without being just a sounding board or a programed agent. The expert performs a valuable service by getting an attorney to rethink assumptions. An expert should demonstrate self-initiative regarding creativity, but the attorney should make it known from the onset that creativity by the expert is expected.

Involve the expert in case strategy. Valuable experts serve not only in a tactical role but also in a strategic one. For discovery, an expert can inform on the necessity of certain evidence, enabling the attorney to acquire it through requests for admission, requests for production, or interrogatories, whichever is appropriate. Using as an example the aforementioned case involving an unreasonably dangerous product due to defective packaging, the attorney who unilaterally decides on what evidence is pertinent, might not know to request a particular specification, or perhaps certain quality assurance records.

As for the other discovery tool, depositions, collaboration between attorney and expert should extend beyond the former’s preparation of the latter. An expert always should be consulted about the questions to be asked of the opposing expert. On a related note, attorneys know the wisdom in supplying experts with all pertinent deposition transcripts; however, there’s more to it than informing the expert on who said what. The attorney and expert should have phone discussions to exchange takeaways on the various deponents. Perhaps the expert has noted a technical error or some other verbal miscue by a deponent that can be utilized for strategic advantage.

Express gratitude to the expert as deserved. Well accustomed to working with experts, attorneys are not easily impressed; therefore, an attorney should acknowledge exceptional service. An expert should be committed to excellence, regardless, and when it’s delivered, recognition can be a powerful motivator and reinforcement.

Lastly, when an attorney has need for a particular type of expert and immediately thinks of a candidate based on prior collaboration, time is saved, time that can be devoted to other aspects of trying the case. That, in itself, is worth the occasional verbal pat on the back.