Sterling Anthony – Page 2 – Packaging Expert Witness

Expert discusses court entrance

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

An expert’s impact on a jury does not being with testimony; rather, it begins with the expert’s entrance into the courtroom. When the judge instructs the attorney to call the next witness and the attorney responses with a name, jurors ready themselves for a new stage in the proceedings.

The expert should walk to the witness stand at a normal pace, while mindful of good posture. The expert should avoid the impression of wearing blinders; instead of a gaze fixed straight ahead, the expert’s head and eyes should divert normally, taking in the surroundings, an acknowledging nod or two, if appropriate.

As the expert walks to the witness stand, the jury sees the expert’s outer attire, and nothing about it should be off-putting. Testifying is serious business; as such, the expert only should wear business attire, preferably of a conservative style.

During the oath, the expert should stand tall, while maintaining eye-contact with the person administering the oath. A confident, “I do,” or even more succinct, a “Yes,” clears the way for the expert to be seated.

The expert should not nestle into the witness chair, using unnecessary adjustments that might be perceived by the jury as nervousness or lack of confidence. At this time, the expert should adjust the microphone, preventing having to lean or otherwise change posture with each answer. If water is within reach, this would be a convenient time to pour a drink, to have it at the ready for later consumption.

Now it’s time for testimony, to help the jury understand the issues pertaining to the expert’s specialty. Throughout, the expert should not let the effectiveness of the testimony to be sabotaged by errors in comportment. It begins with the entrance; after all, no one gets a second chance to make a good first impression.

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

Warning expert on tire fatality

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

Synopsis: A tire on a semi-trailer blew and caught fire from friction with the aluminum wheel. After extinguishing the fire, the driver called a road service company. A service vehicle arrived with two occupants: a driver and a trainee. The service driver was told of the fire and saw the residue from the fire extinguisher; yet, he removed the damaged tire and replaced it with a new one. While the trainee was inflating the tire, it explosively separated from the wheel. The trainee was caught in the trajectory and killed.

The trainee’s father, as the estate administrator, sued the road service company and its driver. The road service company, in turn, filed a joinder complaint against (among others) the manufacturer of the aluminum wheel, alleging (among other allegations) failure-to-warn about a fire-damaged wheel’s susceptibility to explosive tire separation.

I was retained by the attorney for the wheel manufacturer. I had served as an expert in a variety of failure-to-warn cases, involving such products as charcoal grills, water beds, birth-control pills, cordless drills, car seats, foods, and pharmaceuticals.

Opinions: There was no failure-to-warn. The wheel manufacturer’s Service Manual explicitly warned against mounting a tire on a wheel that has been damaged by excessive heat, including fire. The warning appeared in multiple locations throughout the Service Manual; furthermore, in each location, the content and format of the warning met the criteria for adequacy proposed in the literature, by regulators, and by industry best practices.

Discovery revealed that more than 100 copies of the wheel manufacturer’s Service Manual than been given to the road service company. Deponents from the road service company not only admitted receipt, but said that the Service Manual was incorporated into the training of all employees, including that of the driver who serviced the call. Deponents from the road service company also said that the driver who serviced the call performed contrary to the warnings in addition to contrary to company policy that forbade trainees from going on service runs.

Result: The case settled.

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

Expert witness, warnings for water bed

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

Case synopsis

As he slept, a paraplegic man was severely burned on his lower body by the heating element of a water bed that had sprung a leak and flattened, resulting in close contact between the man’s body and the heating element. Because of his paralysis, the man was insensate below the waist and didn’t know that areas of his flesh were melting. He had to undergo a series of skin graphs and continuous burn care.

The manufacturer of the water bed was sued for failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions

It is reasonably foreseeable that water beds are used by people who have varying degrees of paralysis.

It is reasonably foreseeable that water beds can spring leaks.

It is reasonably foreseeable that water beds flatten when they lose water.

It is reasonably foreseeable that the heating element of a water bed can cause contact burns.

It is reasonably foreseeable that a paralyzed person, unaware of lying on a flattened heated water bed, can suffer burns, due to being insensate.

By virtue of all of the aforementioned, there was a reasonably foreseeable hazard, of a nature that necessitated adequate warnings.

The warnings should have alerted to the possibility of burns to those who are without sensation in parts of the body.

Lacking such warnings, the water bed had a marketing defect that was causal to Plaintiff’s injuries.

Results

The case settled.

Packaging expert witness, warnings, CO poisoning

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

Synopsis

A young man and woman went camping. That first night, they used a portable charcoal-burning grill to cook outdoors. Upon retiring, they brought the grill and the rest of their gear into the tent. The following day, they were discovered dead, having died from carbon monoxide poisoning, the source of which was the charcoal.

The ensuing litigation, alleging wrongful death due to unreasonably dangerous product and a failure-to-warn, was brought against the manufacturer of the grill, the manufacturer of the charcoal, and the retailer that sold the items.

I was retained by the attorney for the Plaintiff and testified at trial.

My opinions

It was known by both manufacturers that lit charcoal emits carbon monoxide, which can be fatal inside enclosed quarters.

It was known by both manufacturers that charcoal can seem to be exhausted, but, in truth, still be burning and emitting carbon monoxide.

It was reasonably foreseeable that a person, mistakenly believing that charcoal is no longer burning, could take the grill containing the still-lit charcoal into enclosed quarters, such as a tent.

It was reasonably foreseeable that the hazard of carbon monoxide poisoning posed by still-lit charcoal taken into enclosed quarters might not be obvious to a reasonably alert and safety-conscious person; therefore, a warning was warranted.

The warning should be conspicuous and unambiguous while communicating the nature of the hazard and instructing on how to avoid harm.

Without adequate warnings, the grill and charcoal were rendered unreasonably dangerous.

Result

Verdict for Plaintiff.

Footnote: There are now federal regulations mandating that charcoal carries warnings on the packaging, and the Consumer Product Safety Commission cited this case, among others.

Packaging expert witness on crates and warnings

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

Synopsis

Company A contracted with Company B; afterwards, Company B subcontracted with Company C. The sequence went: Company B manufactured items, wood crated them, and shipped to Company C; and, Company C performed finishing work and reused the crates to ship to Company A. Serving as coordinator and problem-solver was an employee from a staffing agency, Company D.

At Company A, an employee assigned to opening crates cut a horizontal steel band, at which time, the front of the crate fell open and the contents, weighing more than a ton, fell forward, inflicting serious and permanent injuries.

The ensuing litigation against Companies B, C, and D alleged unreasonably dangerous packaged product and failure-to-warn.

I was retained by the attorney for the Plaintiff. My services included testimony at trial.

My opinions

The crate had design defects that rendered it unfit for its intended purpose.

The items were loaded within the crate in an unstable orientation and were inadequately blocked and braced, allowing the items to move and impact against the crate’s panels.

The crates were not fit for single-use and never should have been reused.

The first crate shipped from Company B to Company C came apart in transit; however, rather than investigate the roles of how the crate was designed and loaded, the solution taken was to place a horizontal steel band around the crate.

Companies B, C, and D believed safety depended on removing the top of the crate and unloading the crate without having cut the steel band; nonetheless, they provided no warnings, neither to follow a specific sequence, nor to not cut the band.

All of the Defendants lacked training, knowledge, and skill in the design and construction of wood crates and in the design of effective warnings; however, they made decisions about items that were inherently hazardous due to weight and size.

Had the crate been properly designed, constructed, and loaded, there would not have been a need for a band; even so, reliance on a band to contain tons of content violates all notions of safety. The ill-advised reliance on the band and the unreasonably dangerous nature of the crate and contents notwithstanding, at minimum, there should have been warnings.

Result

Verdict for Plaintiff.

Packaging expert witness on pallets case

By Sterling Anthony, CPP, expert witness, packaging, warnings, patent-infringement, cargo loading and securement, insurance claims on loss cargo

Case synopsis

The Plaintiff milled flour, which it packaged in 50-lb. bags, palletized. There came a time when Plaintiff contracted with Defendant for the supply of wood pallets. Subsequently, Plaintiff received a series of complaints about off-odors and illness associated with the flour.

Plaintiff checked its warehouse and discovered that the off-odors consistently were present in product on Defendant’s pallets. Laboratory testing revealed that the pallets were the source of the off-odors and product contamination. It turned out that the pallets had been constructed out of lumber that had been sourced out of South America and had been treated with a certain fungicide to prevent the growth of mold.

The inventory was declared unsalvageable and Plaintiff sued for the value of the inventory and the amount of refunds to customers.

I was retained by Plaintiff.

My opinions

The fungicide breaks down into a chemical compound that emits off-odors that impregnates packaging and contaminates product. Such tendencies on the part of the fungicide is known within the U.S. food industry. Ingestion of the contaminated product can cause a variety of gastronomical distresses. The fungicide had been banned in the United States for use on wood pallets, 10 years prior to Plaintiff’s losses.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, knew or should have known about the unacceptable risk posed by the fungicide.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, should have taken steps to determine whether its lumber supplier used a banned fungicide.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, should have disclosed to Plaintiff any and all chemical-based treatments that had been used on the lumber.

Defendant, having visited Plaintiff’s facilities, knew Plaintiff’s purpose for the pallets.

Defendant breached the industry standard of care by failing to supply wood pallets fit for their intended use, specifically, the packaging, storage and shipment of bags of food grade flour.

Defendant breached the industry standard of care by failing to disclose to Plaintiff that the pallets were assembled with lumber that had been treaded with a banned fungicide.

Defendant’s actions and inactions were the direct and proximate causes of all damages claimed by Plaintiff.

Result:

The case settled

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.