warnings – Page 3 – Packaging Expert Witness

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.

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

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 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.

The packaging expert witness on composing an Expert Report

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

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

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

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

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

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

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

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

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

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

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

Packaging expert witness on intermodal cargo

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

Synopsis:

A shipment of beer out of China into the United States subsequently was declared unfit for consumption, and, therefore, a total loss. The beer had suffered organoleptic changes that negatively affected appearance, smell, and taste.

The shipment had been made in an intermodal container and had traveled by highway, rail, and ocean. The importing had been handled by a logistics company that arranged for transportation, warehousing, and documentation.

The ensuing litigation via an insurance claim brought by the importer against the logistics company alleged negligence in cargo care and an unnecessary time delay.

I was retained by the attorney for the Defendant.

My opinions:

The direct and proximate causes of the loss were choices in the type of packaging and the type of intermodal container.

The beer arrived stateside, physically intact, that is to say, without compromise to the palletized loads and without damage to the individual glass bottles.

The bottles were flint (clear) glass. Green or amber would have been better choices because they protect better against the harmful effects of light; relatedly, discovery revealed that the beer had been under lighted storage for an extended period prior to having been loaded into the intermodal container.

The intermodal container was not——but should have been—— the refrigerated type, known in the parlance as a “reefer.”

Discovery revealed that the intermodal container had sat at dockside at a port in China for more than a day beyond the scheduled loading; however, the logistics company had delivered the intermodal container on time, after which, the company had no authority over port operations. Since the time of year was summer, it could be reasonably inferred that the temperature inside the non-refrigerated intermodal container rose.

Discovery revealed that at no time did the logistics company hold itself out to be an expert in the factors that determine beer quality.

Discovery revealed that this was the Plaintiff’s inaugural importing of beer; that notwithstanding, a universally-held expectation and assumption is that being an importer is to have extensive knowledge about the salient characteristics of the product imported.

As the importer, Plaintiff knew, or should have known, that choices in packaging and in transportation equipment impact the quality of beer. Discovery revealed that Plaintiff made both choices. The latter choice was made knowing that a refrigerated intermodal container was an option. Given that international/intermodal shipments, by definition, involve considerable distances that can complicate being aware of conditions on a real-time basis, it’s prudent to build in margins-of-safety in all phases of planning.

Result:

The case settled.

A packaging expert witness should avoid indefensible opinions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Packaging expert witness discusses corrugated boxes

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

At least 95% of consumer non-durables are shipped in corrugated boxes, a statistic that speaks to the many positives of corrugated board.

Think of corrugated board as sandwich-like structures, wherein a wavy (hence, the name, corrugated) board is glued between flat, liner boards. The wavy board is called flute and comes in various designations, the most popular being A-flute, B-flute, C-flute, and E-flute. The flutes differ in terms of vertical height and number per linear measure.

The majority of corrugated boxes are single-wall, meaning a flute between two liners; however, corrugated boxes come in double-wall and triple-wall, combining the requisite number of flutes and liners.

Corrugated boxes must have sufficient strength to protect their contents and to endure all reasonably-foreseeable environments associated with said protection; however, the seeming simplicity of corrugated boxes belies the complexity of designing them, given───in no way an exhaustive list───the many combinations of board grades, flute sizes, adhesives, coatings & treatments, and basis weights (a measure of density). In recent times, the era of sustainability has fostered increasing amounts of recycled content in the composition of corrugated boxes, complicating the prediction of and the measurement of performance.

So it turns out that corrugated boxes can be unfit for their intended purposes due to any of the many factors related to their design and manufacture; additionally, unfitness can be the result of pre-manufacture conditions, such as how the corrugated board was stored. Given the aforementioned predominance of corrugated boxes as shipping containers, and the many factors involved in same, failures, of varying degrees of seriousness, are inevitable.

When corrugated boxes fail, product damage is a decided possibility and so too is injury to people. One such scenario is the collapse of a palletized load caused by the inability of the lowermost boxes, in particular, to bear the superimposed weight. Whether litigation is in the form of an insurance claim for damaged goods or in the form of a personal injury/product liability suit, either Plaintiff, Defendant, or both might seek the services of an expert.

The expert should be knowledgeable about, and experienced in, all major aspects of the design, development, and specification of corrugated boxes. Another necessity is a matching expertise in the processes involved in the production of corrugated board and its conversion into boxes. The expert also should be well-versed in the laboratory testing of both corrugated board and corrugated boxes. Additionally, the expert should have a background in logistics and an acquaintance with the associated disciplines of transportation (including the regulations governing corrugated boxes), materials handling, and storage, along with the challenges they present throughout the supply-chain.

Packaging expert on newborn blindness case

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

Case synopsis:

An obstetrician delivered a baby and afterwards placed erythromycin ointment into the newborn’s eyes, a common safeguard against eye infections from bacteria in the birth canal. The ointment had come packaged in a 1-gram metal tube, having a keen dispenser end, the tip of which required breaking off in order to squeeze out the ointment.

Days later, it was discovered that the newborn had become blind in one eye. The tip of the dispenser had not been broken off completely and had ended up in the newborn’s eye, thereafter repeatedly scratching the retina and otherwise damaging the eye such that blindness resulted.

The ensuing litigation against the product manufacturer alleged defective packaging and an unreasonably dangerous product. The physician and the hospital also were sued.

I was retained by the attorney for Plaintiff.

My opinions:

The packaging had a design defect, shared by every exemplar manufactured to that specification. The design defect was that the dispensing tip could be snapped but remain attached, dangling. When an unaware physician administers the ointment, the tip can fall into the eye; in fact, the pressure from the squeezing of the ointment can dislodge a dangling tip and the viscosity of the ointment can entrap the tip, assuring that both ointment and tip end up in the eye.

The packaging had a marketing defect. The defect was the absence of warnings regarding the possibility that a partially detached tip, undetected, might end up in the eye of a newborn.

The design defect and the marketing defect resulted in an unreasonably dangerous product. The unreasonably dangerous product was the direct and proximate cause of the accident.

It was the responsibility of the product manufacturer to have factored into account all reasonably foreseeable conditions under which the packaged product would be used. Such an exercise, performed adequately, would have alerted to the possibility of the subject accident.

There were better, safer ways to package the product; for example, a tube with a dispensing tip that didn’t require breaking, but instead, required a puncture by a pin-like feature molded into the top of a cap.

Since such a package had not been chosen, there should have been warnings, alerting to the hazard and instructing how to assure that the tip has been completely detached before the administering of the ointment. Given the small size of the tube, the warnings additionally could have been printed on a carton and on carton inserts.

Results:

The case settled.