Brad Curry
Mark Medlyn
Number of product accidents estimated to be
50 million per year
 Cost of 50 billion dollars
 Lawsuits filed as a result of faulty design
(Ford Pinto gas tank–a 10.00 repair was
turned down for cost )
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http://www.youtube.com/watch?v=VS8hWQIm
D9w
Three area’s for product injuries
1. Behavior or knowledge of product user
2. The environment where it is used
3. Factory design using safety analysis and
safety controls
Human behavior hard to control
Best recourse is to design products that are
idiot proof
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Examples:
Lawn mowers with guard chutes
Redesigning car interiors to reduce sharp
edges
Safety glass on vehicles that does not shatter
into sharp edges
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Lawsuits filed as a result of
Faulty design ( Ford Pinto gas tank)– (a 10.00
repair was turned down for cost )
Manufacturing process- a defect in a part
Firestone 500 tire which failed
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History
Ancient times: sample of grain shipments
tested for quality
By 14th century, textiles were sampled
If they passed, then they received a seal
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Middle of 18th Century two concepts
Caveat emptor (let the buyer beware)
Followed Adam Smith “invisible hand” theory
Purchaser was to take care of his or her own
interest
Under this doctrine, the consumer could not
sue the manufacturer
Could only sue the retailer
Who then could sue the wholesaler
Who then sues the manufacturer
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Under this doctrine, the consumer could not
sue the manufacturer
Could only sue the retailer
Who then could sue the wholesaler
Who then sues the manufacturer
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This began to change in 1916
Macpherson vs. Buick Motor car
Court held that Buick ( rather than the
component manufacturer) was responsible
for injuries to plaintiff due to defective wheel
Buick failed to inspect a defective wheel
before it was put in the car
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Product Safety law
Consumer Product Safety Commission
Established 1972
Designed to protect public
From unreasonable risks and injuries
Assist in evaluating safety of products
Promote research and investigation into
Causes and prevention of accidents, illnesses
and injuries
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Factors juries use to determine product
design
is defective and unreasonably dangerous
Utility of the product
Feasibility of cost of improvements
Frequency and severity of injuries
Adequacy of warnings
Environment in which product is used
Consumers reasonable care in using product
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Defenses
Defendant must prove that product not
responsible for injury
Bad judgment (using a chair as a stepstool)
Plaintiff's failure to maintain the equipment
Improper use of the product by owner
Accident caused by alterations of product
i.e. removing safety features
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Legal theories
Comparative negligence: the user did
something wrong..
As a result, the verdict is split….80% fault of
consumer 20% on the product
Assumed risk of injuries i.e. bungee jumping
or parachuting
Misuse of product by consumer i.e. flying
Cessna 182 into a thunderstorm
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Expert Witnesses
Used by both sides
Must be technically competent in area of
testimony
Personal character must be above reproach
Most important is that they must be able
To communicate with the jurors and Judge
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Statutes of repose
Product does not injure person within a
period of time
Then there is no liability for the producer
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http://www.youtube.com/watch?v=QkfVrqas
6qI&feature=related
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Consumer Product Safety Improvement Act (2008)
CERTIFICATION OF COMPLIANCE
1. Identification of the product covered by this certificate:
2. Citation to each CPSC product safety regulation to which
this product is being certified:
3. Identification of the U.S. importer or domestic
manufacturer certifying compliance of the product:
4. Contact information for the individual maintaining
records of test results:
5. Date and place where this product was manufactured:
6. Date and place where this product was tested for
compliance with the regulation(s) cited above:
7. Identification of any third-party laboratory on whose
testing the certificate depends:
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5.
600 ppm within 180 days
100 ppm with in 3 years if able
Exemptions for lead that cannot be
accessed by consumer by coverings ( not
paint)
300 ppm one year after enactment
Limit now down to 90 ppm for paint down
from 600 ppm.
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Lead paint and total Lead content
Full and non full cribs: and pacifiers
Small parts
Children’s metal jewelry
Baby bouncers
Products subject to all other children product
rules
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One year after law goes into effect
Manufactures must place
Permanent distinguishing marks/labels that
allows the consumer
to know where/when and by whom the
product was manufactured
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Requires that consumers have cards or
electronic means
To register their purchase
Manufacturer must then keep that
registration and notify consumer of any
recalls
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Requires that there be safety standards
enacted
Including flammability
Uses existing standards
Products that contain Pthalates and lead
1. In toys
2. Child care article (sleepwear)
3. Clothing
4. Bedding
5. Every product intended for children under
the age of 12
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Stipulates type of language to be used
Must be used at point of sale and in
advertising
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Financial loss
Award compensates plaintiff for current
And future medical expenses
For pain and suffering
Loss of earning
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Used by both sides to bolster their argument
Requires that the person who testifies
Be technically competent in the area
Either through training or education
Should be able to communicate well with the
Judge or Jury
Actual vs. Punitive
 Actual loss is what the Plaintiff ( or his family)
Is out of money for.
 Can be for wages lost
 Loss of limbs
 Death
 Property that is damaged or lost
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Goes beyond what the actual loss is
Very rare and usually only when the
Defendant knew the product that is being
Manufactured has a high potential for failure
Pinto gas tanks
Simple 10.00 brace wasn’t used despite
Engineers saying needed
Result was rear impacts caused tank to split
Potential for fire and death
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Increased insurance
Cost of recall, replacement or repair of
product
Cost of damage to reputation to company
Cost of holding back production
Cost of increased quality efforts for
prevention or appraisal
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Program is part of organization structure
Product safety committee
Members should be from legal, design,
manufacturing, marketing and quality areas
Safety engineer should be chair person
Chair person’s responsibility
 Liaison between insurance and government
regulators
 Participates in injury cases
 Maintains education programs
 Conducts audits
 Acts as consultant
 Keeps informed of trends
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Needs a thorough understanding of products
Background in manufacturing
Professional and diplomatic
Direct access to senior management
Respect of everyone in organization
Be able to take charge of a project
Team player
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Education
New-Product Review
Initial Production Review
Periodic Production Audits
Control of Warranties, ads, agreements
Warning Labels and Instructions
Complaints and Claims
Records
ISO 9000 Documents
Product-Recall Plan
Subrogation
Risk Criteria
Standards
Audit
Customer Service
Redress
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Employees need to be aware of product safety
both internally and externally
Train employees on how to handle productrelated incidents
Inform employees of laws and lawsuits that
may have an impact on the company
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Product safety is a design parameter
Must be considered first
Adopt product safety design techniques
Document, Document, Document
Have a product review team
List all the possible hazards
Design control is required for ISO 9000
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Start with a limited production run
Control the distribution
The more people involved in evaluating the
product the better
Process control is required for ISO 9000
Perform regular audits on all products
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This documentation is legally binding for
organizations
Reviews must be performed regularly to
protect the company interest
All of these documents can and will be used
in court
Evaluate the cost problems of these
documents
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Largest cause of manufacturer’s negligence is
inadequate warnings
Consider the knowledge level of the average
user
A product is not defective if it has an
adequate warning that when followed makes
the product safe to use
ANSI has established guidelines to follow
Product safety signs
 Type of hazard
 Degree of hazard
 Consequence of involvement with hazard
 How to avoid the hazard
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Warning labels and instructions are not the
same
Care should be taken to develop both
Overuse of warning will dilute the message
Alerts the organization that a change is
needed
Complaint or claim should trigger a review
for:
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Cause
Nature and seriousness of injury
Failure mode causing situation
Was defect present when product was sold
Any negligence by the parties involved
Maintain records on all of the following
1. Product development and testing
2. Audits
3. Verbal and written communications
4. Original design data and revisions
5. Service life
6. Outside organization acceptance and
approvals
7. Raw material acceptance records
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Records provide traceability
Records must be protected from loss
Records must be maintained over time
Record retention procedure is required for
ISO 9000
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Can be used to show that a company is
diligent in design validation and corrective
procedures
Can also be used to show that a company is
negligent if the company is not following it’s
own quality manual
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Minimizes costs and potential liability
The decision to recall is based on 3 things
Exposure to personal injury or property damage
Form of communication used to notify users of
recall
Will the product be repaired, replaced or
reimbursed
Traceability is important to find affected
products
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Suppliers are just as important to the product
liability prevention program
Buyers and suppliers should work together to
visit and audit prevention programs
Buyer needs to make supplier aware of all
relevant documentation.
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Determine what the risk is for each product
Involve employees in developing standards
Continuously audit for improvement
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First line defense against a potential lawsuit
Better to make friends than enemies
Provide customers with a policy that
addresses their needs in a timely manner
Provide repairs quickly and fairly