seven ways to avoid getting sued for product liability
TRANSCRIPT
PRESENTED BY:DENNIS W. BROWN, ESQ.HOLLAND AND HART, [email protected]
Seven Ways to Avoid Getting Sued for Product
Liability
DISCLAIMER• This is Not Legal Advice• There is No Attorney-Client
Relationship• No Privilege Exists
Objective of Today’s Talk
To help you and your company avoid
getting sued for product liability or consumer fraud.
Face Reality…How Juror’s Think
The Danger…How Juror’s Think
“I think that the manufacturer has a duty to prove that they have TESTED the equipment…and done everything within their reasonable ability to make it safe.
[I]f you can find something that they short cut… that’s negligence in my view.” [emphasis added]
Source: Persuasion Strategies 2013 National Juror Survey
Jurors Expect Significant Testing
Who Can Be Sued?• Manufacturer• Component part
manufacturer• Distributor• Retailer/Seller• Installer• Owner/Operator• Maintenance/Repair
Person
Where Can You Be Sued?State Court – State where product was made– State where product was sold– State where Plaintiff lives– State where product was advertised– State where injury occurred
Federal Court– If diversity exists
Foreign Country
The Seven Ways to Avoid Getting Sued1. DESIGN is in accordance with standards2. MANUFACTURE in accordance with specs3. WARNINGS, labels & manuals are thorough &
clear4. REPRESENTATIONS must be accurate and
truthful5. COMPLAINTS must be monitored and
addressed6. RECALLS are implemented where appropriate7. LAWS are followed
Design Specification – Legal Claim
Product design is unreasonably dangerous.
Design Defect - ProtectionsFollow the Recognized Safety Hierarchy
1. Design Out the Potential Hazard
2. Guard Against the Potential Hazard
3. Warn About the Potential Hazard
Safety Hierarchy Explained
WARNING – USER AND BYSTANDER ALWAYS WEAR SAFETY GOGGLES
• Use only to drive and pull common unhardened nails. Any other use, such as striking this tool with or against another striking tool, nail puller, hardened nail, or other hard object or using a chipped hammer, may cause the hammer to chip, possibly resulting in blindness or other serious injury to the user or bystander. Discard hammer immediately if chipped.
Design Defect – Protections (con’t)• Product design should follow the
standards and industry practice
Design Defect – Protections (con’t)• Foreseeable Misuse must be
considered
• Monitor accidents reported in trade magazines, trade organizations, blogs
Design Defect – Protections (con’t)• Subsequent remedial
repairs/changes
Design Defect – Protections (con’t)Lawsuits against outdoor equipment
manufacturers alleging design defect– Harness– Helmets– Camp stove
Manufacturing Defect – Legal Claims
Product not manufactured in accordance with design or
material specifications.
Manufacturing Defect - Protections
QA Program
Manufacturing Defect - Protections
Quality Vendors
Manufacturing Defect - Protections
Record Keeping
Warnings, Labels & Manuals- Legal Claims
Warnings, Labels & Manuals- Claims
Hazard should have been designed out or guarded against
No warning providedWarning was- insufficient- in wrong location- words not a pictorial- only in English- information overload
Juror Views When Warnings Are Used
Juror Views When Safety Instructions not Followed
Here are some actual labels on consumer goods:
• “Do not iron clothes on body” -- Rowenta iron
packaging
• “Do not attempt to stop chain with hands”
-- Swedish chain saw
Warnings, Labels & Manuals- ProtectionsBE CAREFUL
Follow Warnings in Standard
Information Overload
Words v Symbols
Colors
Languages
Printed Word v. CD
Warnings, Labels & ManualsLawsuits against outdoor equipment manufacturers or retailers alleging failure to warn:– Rope– Tent– Ski Bindings
False Representations – Legal Claims
Advertising or Promotion or Product Literature
Contains
– Promotions that• are not 100% verifiable• make promises or guarantees• are incorrect
False Representations - Protections
Representations must be absolutely verifiable
Medical claims universally accepted
100% = 100%
Marketing, Engineering + Legal must all work together
Customer Complaints – Legal ClaimsDefective product
Fraud
Breach of Warranty
Class Actions
Customer Complaints – ProtectionsTo Protect Yourself – Go Where the Plaintiff
Attorneys Go to Find Their Cases?• Regulatory Investigations• Enforcement Proceedings• Recalls– Create websites “investigating”
companies/products• Disgruntled Customers– web postings– Ripoffreport.com
Customer Complaints - Protections
Where do Plaintiff Attorneys Find Their Cases?
• Your website• Materials supplied with the product• Web search for “complaints
regarding ________” (insert company or product name)
Customer Complaints (con’t)Social media & internet postings
criticizing outdoor equipment manufacturers – Harness– Ski pole with steel pick– Kayak paddles
Customer Complaints - Protections
Effective customer call-in line
Customer Complaints - Protections
Monitor and Track Customer Complaints
Customer Complaints - Protections
Monitor the CPSC Product Incident Database = http://www.saferproducts.gov
Meaningful and Effective Warranty
Keep an Eye on Social Media and Internet Postings
Customer Complaints – Protections (con’t)
Sue the offender:
Texas Firm Sues Client For Negative Yelp Review
LITIGATION Weekly Alert
July 29, 2014
Recalls – Legal Claims
• Voluntary recalls• Involuntary recalls
Recalls - Protections
Proactive
Monitor Your Customer Complaints and Claims
Work with the regulatory agencies
Recalls (con’t)
Recalls involving outdoor equipment– Camming anchor– Harness– Sea kayak paddle floats– Kayaking helmets
Follow the Law – Legal Claims
Product design, manufacture or sale violated the law
Follow the Law - Protections
Know and follow the law wherever your product is sold – sounds easy enough
In Closing
Questions
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Thank you for attending!