Sterling Anthony – Page 3 – Packaging Expert Witness

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.

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

Packaging expert witness in design patent-infringement

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

Synopsis of facts

A trio of inventors were granted a design patent of a type of food container. For years, the assignee company had been selling the container before becoming aware that another company was selling a container, which, according to the assignee, infringed on the design patent. Litigation resulted.

The Defendant claimed that Plaintiff’s design was not unique and was confusingly similar to the prior art cited in the prosecution file history.

I was retained by the attorney for the Plaintiff.

An expert is not allowed to opine on the ultimate question of whether there has been infringement; nonetheless, my services involved consulting, advising, and applying my expertise to the comparisons between the patented design and the cited prior art. I also wrote reports and testified at trial.

My opinions

The prior art cited in the prosecution file history contained no design that is confusingly similar to that of the design patent-at-issue. In a comparison of the two aforementioned, the containers that practiced the design patent-at-issue emerged as unique as to their decorative/ornamental (i.e. non-functional) features. Those features were described by the drawings/figures of the design patent-at-issue; however, I provided a detailed comparison feature-by-feature.

The prior art cited by the defense contains no design that is confusingly similar to the design patent-at-issue. The same type of comparison of decorative/ornamental features referenced above was performed

Prior art known to me before I was retained for the case-at-issue contained no design that was confusingly similar to the design patent-at-issue. Again, I performed a detailed comparison of decorative/ornamental features.

Lastly, prior art, contained no design that was confusingly similar to the accused design, such determined by the same detailed comparison cited variously above.

My conclusions were: the patent design-at-issue was unique and that any comparisons between it and the prior art reveals differences in decorative/ornamental features, such that an ordinary observer would not confuse the patent design-at-issue with the prior art; and, nor would an ordinary observer confuse the accused design with the prior art.

Result:

Verdict for Plaintiff

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 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.”

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

The packaging expert witness on yes-or-no questions

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

To an experienced packaging expert witness, a yes-or-no question is not one that CAN be answered that way but one that SHOULD be answered that way. Knowing the difference is an important aspect of an expert’s testifying skills.

Opposing attorneys, immediately after posing a question, might add, “Mr./Ms. Expert, it’s a yes-or-no question.” Something to the same effect might immediately precede the question, for example, “This is going to be a yes-or-no question.” In either version, it’s the expert who should reserve the right to classify the question.

It is the expert who is under oath to tell the truth, the whole truth, and nothing but the truth; so, if a yes-or-no answer does not constitute the best compliance with that oath, the expert should speak up accordingly. “I can’t answer the question truthfully with yes or no, Counselor.”

If an expert gives such a response, it ALWAYS should be in good faith and never an attempt to undermine the opposing attorney’s effectiveness. The latter is being an advocate, which is not the role of an expert; besides, when the expert proceeds to give the expanded answer, the jury will decide whether the expert has been disingenuous.

Sometimes an opposing attorney will interrupt, saying that the expert will get an opportunity to expound during redirect. The problem is that the attorney-client might not have plans to redirect, and, even to the contrary, would have a shorter redirect, if the expert does not move away from an honestly-held claim of not being able to truthfully give a yes-or-no answer.

An expert who gives a yes-or-no answer and then attempts to add context (i.e. “Yes, but…” or “No, however…”) also might be interrupted, this time with, “Thank you. You’ve answered my question.” The expert immediately should make it known that that’s not the case; better yet, the expert should begin the answer with the context.

Since court rules allow cross-examinations to utilize leading questions, and since such questions, by nature, lend themselves to yes-or-no reminders, an expert should expect them. But no matter how authoritatively a yes-or-no reminder is posed, an expert should regard it as a request, an expressed desire by the opposing attorney and not binding on the expert.

In contrast, an inexperienced expert might misjudge yes-or-no as a demand and feel obligated to comply. That misjudgment is particularly possible if the attorney-client doesn’t voice an objection; however, such reliance on the attorney-client fails to recognize that an attorney-client has to cite a reason for an objection, other than the opposing attorney’s lobbying for a yes-or-no answer.

The inflection in which a yes-or-no question is posed can imply that the issue is so simple that the expert should give the sought response, a tactic that might cause the expert to comply, out of a desire to be seen as competent. The far better way that an expert can demonstrate competence is to fully understand a question and then give a reasoned answer.

All of the preceding comments have been from a scenario in which the opposing attorney characterizes the question as being the yes-or-no type; but, that doesn’t mean that it never comes from the attorney-client. When it does, it might be an indication that, theretofore, the expert has been too given to narrative, or worse, has been guilty of volunteering information.

It is the expert’s name that appears on the subpoena duces tecum, the deposition transcript, and the witness list: the point being made is that it’s the expert’s testimony, and that it’s the expert who must take responsibility for it. The expert should be satisfied with each answer, knowing that a permanent association is being made. Skillful handling of yes-or-no questions will lessen the probability that, someday, the expert will need to qualify a previously-given answer.

Packaging expert witness discusses miscommunications

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

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

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

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

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

The packaging expert witness on testimony style

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

Although depositions occur more frequently than trials, what they share in common is that they come late in the case. Every deposition is preceded by discovery along with its associated expenditures of time, costs, and resources. By the time of trial, the aforementioned expenditures have increased, as a result of all that goes into trial preparation.

With the signature aspect of depositions and trials being testimony, it stands to reason that ANYTHING and EVERYTHING that has been expended, prior to testimony, can be affected———for better or worse———by what is said after the administration of the oath. That’s true of every type of witness; however, a packaging expert——turned packaging expert witness——should stay mindful of the uniqueness of that role. The expert’s stock-in-trade is opinions, BUT it’s more than a matter of substance that determines efficacy; it’s also a matter of style.

Appearance, in terms of grooming and attire, is important. For depositions, it has become common for the attorneys to be casually dressed. An expert’s attire shouldn’t get too relaxed; for example, a male would be well served with a sports jacket, which can be taken off, if consistent with the mood in the room. A female expert also should subscribe to the casual-but-not-too-casual guideline. An expert should ask well in advance whether the deposition is to be videotaped. If it is, the expert should arrive dressed more formally, as one would for trial, against the possibility that portions might be shown to a jury.

For trial, men can’t go wrong with a clean, crisply-pressed, dark suit, either of a solid color or a subdued pattern. Neither the shirt nor the tie should be flashy. Jewelry should be keep to a minimum (wristwatch and wedding ring, perhaps) and absolutely no lapel pin that denotes a particular membership, cause, or philosophy. Women should abide in equivalent measure. For either gender, the attire should not speak louder than the expert.

An expert’s behavior is vitally important. The legal system is adversarial; nonetheless, the expert should never give the impression of being an advocate. Opinions that come across as unbiased and without agenda carry greater credibility.

The expert who is overly defensive or overly combative sacrifices effectiveness. An example is the expert who refuses to make any concession, no matter how logical, to opposing attorney. Question to expert: “If the assumptions that factored into your opinions are incorrect, would that change your opinion?” Answer by expert: “No.” By such an exchange, the expert has given the impression of being inflexible, a characterization that could have been avoided with a different, more reasoned answer, perhaps along the lines of, “That would depend on the specific assumptions you’re referring to and on how substantive they were in the formulating of my opinions.”

At no time should an expert demonstrate frustration or impatience, for example, over being asked the same thing repeatedly, something more likely to be encountered during a deposition, since at trial the retaining attorney will give an asked-and-answered objection, after which, the judge will make a ruling.

Moreover as to depositions, the expert should never demonstrate hurriedness, even when having been previously informed that the deposition is to take a specified amount of time. If it runs over, it should be regarded as the concern of the attorneys, not of the expert. Under all conditions, whether at deposition or trial, the expert should take the proper time to understand the question and to provide a thoughtful answer.

An expert’s attitude——or, at least what attitude might be inferred——likewise, is vitally important. A professional, respectful demeanor always should be extended to the opposition, no matter what the provocation to get riled.

On a different, although related note, an expert should not convey an attitude of superiority. It’s not self-serving for an expert to ridicule a question, for example, or even to engage in banter with opposing counsel.

Specifically, in a trial, the testifying expert has been proffered by the retaining attorney and qualified by the Court; as such, there’s no reason to convey an attitude of being the smartest person in the room, a surefire way of alienating a jury. In keeping with that, the expert should guard against facial expressions and gestures that signal a less-than-serious regard for the opposition.

Also to be avoided is having the pendulum swing too far in the opposite direction, which happens when the expert is too chummy with opposing counsel, as if to have forgotten that the operative word is, opposing. In a deposition, the expert should not digress into personal asides, even off the record. At trial, the expert should not attempt to lighten matters with humor, even the self-effacing variety.

Style-consciousness should not end at the conclusion of testimony. After a deposition is over, the expert should make a prompt exit, rather than remaining to socialize, which might result in an inadvertent gift to the opposing side. If there is some debriefing to be done by the retaining attorney, it should be done privately. After trial testimony a prompt exit, likewise, is advisable, in that, someone has eyes on the expert until the expert clears the door. Even in instances of sitting in on later testimony, the expert, now known to the jury, should be more self-aware than others in the gallery.

Establishing rapport with the jury overarches all of the preceding comments. It’s something that every expert should strive for; however, it’s important not to be obvious in the attempt. The expert, at all times before the jury, needs to project professionalism personified, under an aura of it being par-for-the-course.

And, the expert should not overlook little things that can have big impacts. An example is occasionally looking in the direction of the jury and making eye-contact during answers and always when providing an explanation. As for providing explanations, the expert should stay reminded that the jury is comprised of laypeople and take care neither to talk over their heads nor condescendingly down to them.

The retaining attorney is use to prepping experts as to substance, the, what to say. The how to say it and all its engendered perceptions is less under the direct control of the retaining attorney. That said, the expert who’s already style-savvy should be held in high favor. An expert who testifies with substance AND style, tells, The truth, the whole truth, and nothing but the truth——EFFECTIVELY.

Packaging expert witness discusses stretch-wrap

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

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

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

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

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

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

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

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

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

Packaging expert 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.

Packaging expert witness discusses pallets

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

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

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

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

Strength refers to load-bearing capacity.

Stiffness refers to resistance to undue bending and flexing.

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

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

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

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

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

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

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

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

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

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

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