Tag: warnings

Forklift injures worker

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

Synopsis

The Plaintiff was struck by a forklift truck inside a factory.  The Plaintiff had been sent to the factory by a temporary employment agency.  Plaintiff sued the factory, alleging negligence owed to breach of standards related to material handling, forklift operations, and safe pedestrian traffic.

I was retained by Plaintiff’s attorney.

Opinions

Defendant breached the standard that a forklift operator must be certified.  The fact that the involved operator had experience with forklifts was not an acceptable substitute for certification.

At the time of the accident, the forklift was being operated in reverse, because the height of the load restricted the operator’s vision; however, the back-up alarm, which warns pedestrians, wasn’t working, a condition that had been known by the factory managers but had been allowed to go uncorrected.  As a result, Plaintiff was denied the auditory warning that a forklift was operating nearby.

The accident occurred in an area of the factory that did not have convex mirrors stationed at every aisle intersection, including the intersection closest to the accident.  As a result, Plaintiff was denied the safety of having his presence detected by properly positioned convex mirrors.

The factory did not have floor markings that delineate pedestrian aisles and pedestrian areas, nor was the floor marked with stencils that identify an area as one in which forklifts operate.  As a result, Plaintiff had to carry out his assigned duties, which included traveling to and from parts inventory, without safeguards relative to forklift traffic.

All of the solutions to the inadequacies that contributed to the accident were readily available to the factory and could have been implemented economically and on a short schedule.

Defendant was aware that accidents between forklift and pedestrian carry a high potential for injury and even death.  Defendant admitted to knowing that OSHA has requirements aimed at preventing such accidents.

Result

The case settled.

Sterling Anthony can be contacted via 100 Renaissance Center Box 176,  Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

 

Failure-to-warn disfigures Plaintiff

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

Synopsis

A manufacturing company used a certain chemical supplied in 55-gallon steel drums.  The chemical was volatile and inflammable, and as such, was classified as a hazardous material.  The company had a contract with a third-party company for hauling away the empty drums.

An employee at the manufacturing company knew a man who operated a sideline business of selling barbecue grills that he fashioned from 55-gallon steel drums.

The employee, allegedly without disclosing the man’s sideline business, sought and received permission for the man to buy some empty barrels.  There came a time when the man was allowed to load his pickup truck with empty barrels.

Subsequently, the man was using an acetylene torch on a barrel: however, it still contained residual fumes of the chemical.  An explosion resulted, causing disfiguring injuries from burns and from shrapnel.

The man sued the manufacturing company for negligence stemming from failure-to-warn.

I was retained by the attorney for Plaintiff.

Opinions

The company gave Plaintiff the barrels without warning Plaintiff that they had contained a hazardous material and without warning Plaintiff of related safety considerations.

The company gave Plaintiff the barrels without any inquiries as to Plaintiff’s intentions.

Defendant’s claim of not knowing that Plaintiff intended to repurpose the barrels did not absolve Defendant of its duty to warn.

The company, via its contract with a specialty hauler, had evidenced that it was aware that the safe hauling of the barrels and their safe ultimate disposal required knowledge and expertise.

The Defendant made available to its employees material safety data sheets detailing the hazards associated with the subject chemical; yet, Defendant did not put the Plaintiff on notice in any way.

Defendant gave Plaintiff the barrels having removed all labels and placards identifying the once contents as a hazardous substance; as such, Plaintiff was not on notice from those types of warnings.

Result

The case settled.

Sterling Anthony, CPP, can be contacted via 100 Renaissance Center-Box 176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

 

 

 

 

 

 

 

Packaging fails, worker injured

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

Synopsis

A worker for a parcel-post delivery service was manually sorting packages off a conveyor.  One of the packages was a corrugated box containing an industrial blade.  The blade had cut through the box, resulting in exposure of the sharp edge.  Unaware of said exposure, the worker suffered lacerations to one of his hands, causing permanent damage to nerves and ligaments.

The worker sued the manufacturer of the blade, alleging defective packaging, an unreasonably dangerous product, and failure-to-warn.

I was retained by the attorney for the Plaintiff.

Opinions 

Because the blade was packaged loose inside the box, the resulting freedom of movement allowed the sharp edge of the blade to contact against the box, eventually cutting through it.

Because the box was oversized relative to the dimensions of the blade, the relationship increased the ability of the blade to move inside the box.

It was reasonably foreseeable that an unrestrained sharp blade can cut through a corrugated box, a common-sense example being a box-cutter instrument.

It was reasonably foreseeable that the size and weight of the blade would give impetus to contacts against the box, sufficient for the blade to cut through the box.

It was reasonably foreseeable that the physical forces (impacts, vibrations, compressions) encountered throughout the parcel post delivery environment would increase the already reasonably foreseeable probability that the blade would cut through the box.

There was no printed warnings on the box that it contained a sharp-edged instrument; as such, Plaintiff was never on notice as to the hazard.

There were alternative ways to package the blade for safety, and such ways were technologically and economically feasible.

Result

The case settled.

Sterling Anthony, CPP, can be contacted through: 100 Renaissance Center, Box 176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

 

 

Eyelash adhesive packaging case

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

Synopsis

A woman who wore contact lens purchased a Halloween Cat Makeup Kit that included false eyelashes and the adhesive for applying them.  Her husband assisting, they applied the eyelash on the right but the one on the left would not stay affixed.  During several tries, she began experiencing pain in the left eye.  After flushing the eye with water, she gave up on the left eyelash and then removed the one on the right.

Over a matter of hours, the pain in the left eye increased, causing the women to go to the hospital.  The contact lens in her left eye had become glued to her cornea and had hardened, such that it had to be scraped off.  She incurred permanent damage to that eye, despite subsequent surgery.

The woman and her husband brought suit against the marketer of the Halloween Cat Makeup Kit and the retailer, alleging defective packaging and failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions

A common warning in the cosmetics industry is that contact lens wearers should not wear false eyelashes because the adhesive can damage the lens.  Although that warning addresses damage to the lens and not to the eye, had that warning been given, it would have dissuaded the Plaintiff from using the false eyelashes.

Since there are 30 million contact lens wearers in the U.S., with two-thirds being female, it is reasonably foreseeable that, a Halloween Cat Makeup Kit that includes false eyelashes and adhesive, marketed to women, would be purchased by more than an incidental number of contact lens wearers.

It is reasonably foreseeable that not every wearer of contact lenses is a wearer of cosmetics, in general, or a wearer of false eyelashes, in specific; therefore, there was a need to warn, vis-à-vis the associated hazards.

There was a failure-to-warn because there was nothing that addressed the specific hazard of damage to the eye caused by adhesive on a contact lens.

There was a defective package design, in the form of a 0.5 oz. needle-nose metal tube, which did not allow controlled, consistent dispensing, increasing the possibility that adhesive could get into the eye.

The small size of the adhesive package limited its effectiveness as a medium for warnings; however, well-designed, conspicuous warnings could have, and should have, been provided on the carton that contained the kit and even on a leaflet placed inside the carton.

The promotional copy on the carton emphasized how easily and how quickly the consumer can transform herself into a sexy feline.  A rational consumer would be justified in concluding that the kit posed no hazards, especially given the absence of warnings.

When adhesive gets into the eye, flushing with water is a reasonably foreseeable response; however, the adhesive can harden despite the flushing.

The adhesive is colorless; therefore, it can remain in the eye and on a contact lens, although the wearer might believe that flushing has removed it.

Result

The case settled.

Sterling Anthony, CPP, is located at 100 Renaissance Center-43176, Detroit Michigan 48243.  Phone: 313-531-1875.  thepackagingexpertwitness@gmail.com.  www.thepackagingexpertwitness.com

 

 

 

 

Button batteries packaging case

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

Synopsis

A 20-month old boy was able to remove a button battery from its packaging and went on to swallow the battery.  The boy was rushed to the hospital, where the battery was extracted; however, by then, the boy had suffered chemical burns to the esophagus.  The treating doctors predicted that the boy would live under an increased probability of contracting cancer of the esophagus later in life.

The parents brought suit, alleging defective packaging and failure-to-warn.

I was retained by the attorney for the Plaintiff.

My opinions

The packaging was defective for not having been child-resistant (C-R).  It was reasonably foreseeable that an exploring child, attracted to a shiny button battery, could, by happenstance, remove the battery.  That the child would place the freed battery into his mouth also was reasonably foreseeable.

There were technologically and economically feasible ways to design the packaging to be child-resistant, without interfering with the packaging’s role as a marketing tool.

The packaging, called a blister, held two button batteries and consisted of a rigid plastic cover sealed to a card .  The back of the card was perforated and the intended means of extracting the battery was to press down on the plastic cover with sufficient force to push the battery through the perforated card.

The front of the package gave no warning that the back was perforated, making it reasonably foreseeable that the parents would think that the packaging was more difficult to open than turned out to be the case.

The front of the package did not instruct the parents that there were warnings on the back of the card; nonetheless, the warnings, as they were, did not address the hazard of choking, even though the Material Safety Data Sheet for the product did address that hazard.

The manufacturer knew, or should have known, that there had been other incidents of ingestion of button batteries, because reports of such incidents were in the public domain, including reports by the Consumer Products Safety Commission.

With the proper combination of package design and warnings design, the accident would not have happened.

Result

The case settled.

Sterling Anthony, CPP, is a consultant and expert, specializing in packaging, marketing, logistics, human-factors, and warnings.  His contact information: 100 Renaissance Center-Box 176; Detroit, Michigan 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

 

 

 

 

The case of ego vs. testimony

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

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

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

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

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

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

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

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

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

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

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

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

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

Contraceptive packaging errors

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

Synopsis:

A woman incurred an unwanted pregnancy as a result of errors with her contraceptive pills.

The packaging presented the pills out-of-sequence.  Week-4 pills and week-1 pills were inverted on the calendar card, thereby reversing the presentation of ingredient-active pills and placebos.

The woman filled a personal injury suit, alleging defective packaging and failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions:

Given the purpose of contraception and the consequences of failure, the manufacturer owed a standard-of-care; however, that standard-of-care was breached.

The packaging had a design defect, because when made to specification, it allowed the pills to be presented in inverted order.

There were alternative designs, technologically and financially feasible, that would have prevented the possibility of an inverted order.

The packaging had a marketing defect, because it failed to warn the consumer of the correct presentation order and failed to instruct the consumer to check for same.

There were ways to have designed effective warnings, consistent with warnings theory and regulatory dictates.

The contract packager chosen by the manufacturer of the pills, lacked the experience, process controls, and quality assurance necessary for the assignment.

There were contract packagers that had the requisite experience, process controls, and quality assurance that would have prevented the errors-at-issue, or, at least, would have caught them in time to prevent a defective product from entering the stream of commerce.

Result:

The case settled.

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

Wrongful death case

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

Synopsis:

Parents discovered that their toddler had gotten hold of a bottle of baby oil and had gotten the product around his nose and mouth.  The parents cleaned the toddler’s face.  The toddler showed no immediate ill-effects, but the next day experienced breathing difficulties and was taken to the hospital.  He was diagnosed as having inhaled (aspirated) baby oil.  The oil had coated the toddler’s lungs and the hydrocarbons in the oil had caused a type of pneumonia.  After languishing for days, the toddler died.

The parents brought a wrongful death suit against the manufacturer of the baby oil, alleging an unreasonably dangerous product, defective packaging, and failure-to-warn.

I was retained by the attorney for the Plaintiff.

My opinions:

The packaging had a design defect, being a squeezable plastic bottle without a child-resistant closure.

The packaging had a marketing defect, lacking warnings against the hazard of inhalation.

It was foreseeable that the product would be found in households having young children.

It was foreseeable that the product would end up in the hands of a young child if left within that child’s reach, given the lack of warnings to the contrary.

It was foreseeable that the product can be an attractive nuisance, in that a child accustomed to having the product administered by an adult might try to apply it to himself, given the opportunity.

It is known that young children have the dexterity to remove a closure that is not child-resistant, in addition to having the strength to squeeze a plastic bottle.

There had been similarly-caused fatalities on record; therefore, the Defendant knew or should have known about the hazard posed by the product.

The state-of-the-art in packaging included solutions that were technologically and financially feasible.

The state-of-the-art in warnings theory established a duty-to-warn, under the conditions attendant to the case-at-issue.

Result:

The case settled.

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

 

 

 

 

 

Packaging and warnings trial

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

Synopsis:

Plaintiff, a food worker sustained hand lacerations on the cutting strip of an institutional-size carton of aluminum foil, resulting in surgery and nerve damage.  Plaintiff claimed that she dropped the carton and was injured trying to catch it.

Suit was brought against the manufacturer of the aluminum foil, alleging defective packaging and failure-to-warn.

I was retained by the Defense and delivered services culminating at trial.

My opinions:

The packaging was not defective and there was no failure to warn.

The cutting strip concept has been on all carton sizes of aluminum foil, literally ever since the products have been marketed; even so, it is regarded in industry as state-of-the-art.

Sharpness is an inherent quality of the cutting strip and can not be designed out.

The function and characteristics of the cutting strip are evident upon sight.

A carton flap folds over the cutting strip, serving as a safeguard, and must be lifted before the cutting strip can be used.

A warning about the sharpness of the cutting strip was conspicuously positioned on the carton flap.

Plaintiff’s attorney cited that the manufacturer of the aluminum foil also markets plastic wrap in cartons that have a cutting device incapable of lacerating; however, I countered that the device is incompatible with aluminum foil.

Plaintiff admitted that she was familiar with the cutting strip, having used it numerous times, at home and on the job; as such, I opined that, although there was a warning, it wasn’t needed.

Result:

Verdict in favor of Defendant.

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

 

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