You’ve Been Sued. Now What?

Nov. 17, 2009
To defend a product in a liability case, you must convince a jury of technically unsophisticated people that you did everything in your power to design, manufacture, and sell a safe product.

The time to prepare for a possible product-liability lawsuit is early in the product design.

To defend a product in a liability case, you must convince a jury of technically unsophisticated people that you did everything in your power to design, manufacture, and sell a safe product. This means you must possess detailed records of the product design and manufacturing. Also, you must be able to show that advertising, labeling, warnings, and instructional literature is correct, detailed, thorough, and completely understandable to potential users.

Safety information in advertising can create an “express warranty.” This is defined as “any affirmation of material fact on which a customer relies.” Through labeling and warnings, you must warn about reasonably foreseeable misuse of your product, particularly if you have not addressed potential product misuse in the product design. In addition, you should know the general background of the people who will read the labels and warnings.

A case in point: A fertilizer manufacturer clearly placed full warnings and instructions on buckets of its fertilizer. The label had a thorough statement of ingredients, description of dangers, and advice on how to avoid the dangers. The problem was that the fertilizer looked like water, and in hot weather some of the workers drank it. The manufacturer lost its case because it was unaware most farm workers in the southwest U.S. who would use this product were Spanish speaking and, in the vast majority of cases, could not read English. From a single exposure, five people died and 34 were hospitalized.

You should, when designing warnings, follow ANSI Z535. As spelled out there, use pictograms as much as possible. That way, people who have a problem reading a warning will ask someone else what the warning is all about. After designing warnings, use a human-factors expert to test both the warnings and their location.

In preparing product instructions, keep the end user foremost in mind. Make no assumptions about the user’s knowledge or background. For example, one of my former employers would ask a team of people who knew nothing about a machine being designed to follow instructional literature describing how to set up and run it. This happened before the machine was released for production. One of the designers sat by and made notes about mistakes this “test team” made, about any misunderstandings that cropped up, and about any improvements the test team suggested. This approach proved invaluable. In one case, it eliminated a major and expensive recall that would have resulted otherwise.

Also bear in mind that anything conveying information is a record. Records should be kept for the expected life of the product. Clear, detailed records will help establish a defense against accusations of errors, whether of commission or omission. Errors of commission include faulty design, faulty manufacturing, and mistakes made during service or repair. Errors of omission include lack of safeguards, failure to warn, and insufficient or erroneous instructions for use.

A high percentage of claims are based upon user interaction and user expectations. Therefore, accurate advertising, proper labeling, and thorough instructions about product limitations will go far in tempering user expectations. This, in turn, will tend to reduce the number of lawsuits, as well as establish a solid defensive position if one is initiated.

— Lanny Berke

Lanny Berke is a registered professional engineer and Certified Safety Professional involved in forensic engineering since 1972. Got a question about safety? You can reach Lanny at [email protected].

Edited by Leland Teschler

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