insurance claims on damaged cargo – Packaging Expert Witness

Packaging expert witness on pallets case

By Sterling Anthony, CPP, expert witness, packaging, warnings, patent-infringement, cargo loading and securement, insurance claims on loss cargo

Case synopsis

The Plaintiff milled flour, which it packaged in 50-lb. bags, palletized. There came a time when Plaintiff contracted with Defendant for the supply of wood pallets. Subsequently, Plaintiff received a series of complaints about off-odors and illness associated with the flour.

Plaintiff checked its warehouse and discovered that the off-odors consistently were present in product on Defendant’s pallets. Laboratory testing revealed that the pallets were the source of the off-odors and product contamination. It turned out that the pallets had been constructed out of lumber that had been sourced out of South America and had been treated with a certain fungicide to prevent the growth of mold.

The inventory was declared unsalvageable and Plaintiff sued for the value of the inventory and the amount of refunds to customers.

I was retained by Plaintiff.

My opinions

The fungicide breaks down into a chemical compound that emits off-odors that impregnates packaging and contaminates product. Such tendencies on the part of the fungicide is known within the U.S. food industry. Ingestion of the contaminated product can cause a variety of gastronomical distresses. The fungicide had been banned in the United States for use on wood pallets, 10 years prior to Plaintiff’s losses.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, knew or should have known about the unacceptable risk posed by the fungicide.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, should have taken steps to determine whether its lumber supplier used a banned fungicide.

Defendant held itself out as a seller, supplier, or broker of wood pallets to the food industry, and, therefore, should have disclosed to Plaintiff any and all chemical-based treatments that had been used on the lumber.

Defendant, having visited Plaintiff’s facilities, knew Plaintiff’s purpose for the pallets.

Defendant breached the industry standard of care by failing to supply wood pallets fit for their intended use, specifically, the packaging, storage and shipment of bags of food grade flour.

Defendant breached the industry standard of care by failing to disclose to Plaintiff that the pallets were assembled with lumber that had been treaded with a banned fungicide.

Defendant’s actions and inactions were the direct and proximate causes of all damages claimed by Plaintiff.

Result:

The case settled

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors who also provides services to the legal community as an expert. 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 site inspections

By Sterling Anthony, CPP, expert witness in packaging, warnings, cargo loading and securement, patent-infringement

A packaging expert witness’ performance in a site inspection depends on two factors: knowledge of the type of facility, process, machinery, or whatever happens to be at issue; and, preparation. No expert should be convinced of having knowledge in such quantities as to be able to go to a site inspection and “wing” it. On the other hand, without a requisite amount of knowledge, the expert’s preparation is sure to have deficiencies.

Having the knowledge and the ability to prepare notwithstanding, the privileges granted to the inspecting expert will depend largely on which side the expert represents. An expert inspecting the opposing side’s site, unsurprisingly, will be under more restraints than faced by an opposing expert. It’s prudent for an expert to communicate to the attorney-client what privileges are desired, so that the attorney-client can request them.

Regardless of how many privileges are granted, the expert can prepare accordingly, and, for example, need not arrive with camera, video recorder, or other equipment and not be permitted to use them. Similarly, communications between expert and attorney-client can spare the former from arriving at a site, expecting interviewing privileges, but learning belatedly that it’s not to be.

An expert should insist on being able to observe operations that are, indeed, in operation. Such daringness is justified from the common-sense perspective that there’s limited information and knowledge to be gained from dormant operations. Agreement as to what’s to be up and running should be detailed in a formal memorandum; and, if the opposing side withholds such agreement, the aggrieved attorney-client can assist the expert by threatening to cancel the inspection and/or threatening to present the argument to a judge.

Regardless of the side that retained the expert, an inspection at the other side’s site likely will be “one bite of the apple.” An expert who later realizes that something has been missed might not be accorded another inspection. It makes it all the more important for the expert and the attorney-client to agree on why the inspection is needed, what areas will be the focus, how it’s going to be conducted, and in what form the results will be communicated.

When both sides have an expert, it’s unusual for one to make a site inspection and not the other. It’s not unusual, though, for both experts to be present at the same time, a situation resulting from the host’s not wanting to schedule multiple dates, or perhaps, from one side’s wanting to witness what the other side does. Neither is it unusual for the attorneys to be in attendance. Among such company, an expert should be careful not to engage the opposing parties in conversation, other than friendly acknowledgements.

In all instances, an expert at a site inspection is a guest, there at the sufferance of the host; as such, the expert’s behavior should be professional, cordial, and respectful. It would be self-defeating for an expert to attempt to operate outside of pre-negotiated parameters; for, to do so risks a summary end to the inspection.

Finally, in addition to all of the aforementioned, site inspections always involve travel, sometimes including airfare, taxi, lodging, and meals. Whereas such expenses might be unavoidable, they obligate the expert to be cost-effective, by being efficient.

Packaging expert witness discusses stretch-wrap

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

Stretch-wrapping is the most common method for unitizing cargo onto a platform, typically a pallet. The method involves the tight application of plastic film, in overlapping layers, around the cargo, such that the cargo is held together as a unit that can be handled mechanically. Application can be done manually; however, at modest-to-high production rates, only application by machinery is practical.

Multiple factors play into the proper choice of stretch-wrap, chief among them: manufacturing method, thickness, toughness, aesthetics, and, of course, stretch characteristics. The proper choice, therefore, is application-specific, matching the film to the requirements that the film must fulfill. Another way of stating it is that the film must maintain load integrity (keep the load intact) until intentionally removed at the point of destination.

Throughout its movements in the stream of commerce, a stretched-wrapped load will encounter a variety of forces, induced by the activities of transportation, materials-handling, and storage. The forces are vibration, shock, and compression, and, whether singularly or in combination, can cause stretch-wrap to fail. The result is a load that can shift and even collapse.

Stretch-wrap never is the sole guarantor of load integrity; rather, it is a vital component of a system, which includes the aforementioned activities of transportation, materials-handling, and storage. Stretch-wrapped cargo should be loaded and secured within a transportation vehicle in a manner that renders the cargo immobile throughout transit. Stretch-wrapped cargo should be mechanically handled (by forklift, for example) in a manner that serves to keep the load intact. Stretch-wrapped cargo should be stored in a manner that serves to keep the load intact.

There are forces inherent in transportation, materials-handling, and storage that never can be eliminated, but, nonetheless, can be held within manageable limits. When that’s done, yet load integrity is compromised, it’s justified to investigate stretch-wrap as the possible weak component of the system. That’s because a properly stretch-wrapped load should withstand the forces under all reasonably foreseeable conditions.

Mention should be made of the role of stretch-wrapping machinery. The machinery not only should undergo scheduled maintenance but also should undergo daily calibration checks to assure that it’s operating within specified tolerances. In the absence of such Quality Assurance methods, loads can be stretch-wrapped with insufficient tension, among other negative results.

When stretch-wrap fails due to inadequacies in material or machinery, compromised load integrity is a predictable result. When it leads to damage to cargo or injury to people and litigation ensues, the parties would be wise to retain an expert.

The expert should have knowledge, experience, and training in the specifying and procurement of stretch-wrap and stretch-wrapping machinery, in addition to how they are mated for optimal results.

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

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.

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 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 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 witness discusses levels of packaging

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

Packaging is first and foremost a system. The physical component of the system—— meaning what’s combined with the goods——comes in three levels, appropriately named: primary, secondary, and tertiary.

Primary packaging is in direct contact with the goods.

Secondary packaging contains one or more primary packages.

Tertiary packaging unitizes the two other levels.

An example of the interrelationships among the three levels is: a can (primary) of soup; a corrugated box (secondary) containing dozens of cans; and, the unitization (tertiary) of dozens of corrugated boxes onto a pallet, strapped and stretch-wrapped.

The traditional definitions notwithstanding, the lines of demarcation among the levels at times can blur. A box for cereal is considered a primary package, although an inner bag is what’s in direct contact with the product.

Not all three levels are present in every type of product; for example, sacks (primary) of fertilizer are palletized (tertiary) and there’s no secondary packaging.

Illustrating a different point, a wood crate and a metal rack perform as primary, secondary, and tertiary packaging.

What never blurs and what is always the case is that the levels are system components that should perform for a combined optimal result. The performance of any one level impacts the performance of the others. If, at any level, the packaging proves unfit, the results are never positive, sometimes causing damage to goods, or of greater concern, sometimes causing personal injury and even death.

In the case of substantial damage to goods and more certainly in the case of personal injury, litigation can ensue. When it does, one or both sides will need a packaging expert. But what should that expert bring?

The expert should be experienced in package design & development at all three levels. The expert also should be experienced in packaging-line operations and the involved machinery, calibration, trouble-shooting, and record-keeping. The expert should be conversant with applicable regulations and standards-of-care and be able to opine on what’s technologically and financially feasible. Overall, the expert should, indeed, be expert, in managing packaging for functionality and safety, consistent with reasonably foreseeable conditions encountered through the service life of the packaging.

Packaging expert witness discusses functions of packaging

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

Packaging performs these functions: containment, protection, communication, and utility. Any given packaging attribute can be categorized under one of the functions. Because the functions are interrelated and the lines of demarcation overlap, a given packaging attribute can be categorized under more than one function.

Containment. Packaging restrains a thing or things within prescribed confines, UNTIL such restraints are intentionally removed.

The function is typically associated with the concept of contents: for example, the packaging contains the contents until the packaging is opened and the contents are removed.

A quite different example is lumber, with the packaging consisting of strapping. Here, the packaging keeps the lumber held together until such function is no longer needed.

Examples of the containment functions are of endless variety; however, what they have in common is, that, at some point, packaging and something else are combined into a packaged unit, and that combination should stay intact until intentionally separated.

Implicit in the foregoing comments is that the containment function be maintained throughout all reasonably foreseeable conditions, notably, those associated with handling, storage, transportation, and stocking——among other activities and environments.

When packaging fails the containment function, results can include leaks, spills, and things leaning, rolling, tumbling, and falling, easily leading to injuries and fatalities.

Protection. Protection and containment are so much interdependent as to be almost indistinguishable; however, there are some differences. Packaging provides protection to that which is packaged, against harmful forces. Said forces are shock, vibration, compression, temperature, and atmosphere——just to name the main ones.

The packaging must be imbued with the requisite strength and properties to provide protection. Depending on circumstances, multiple levels (primary, secondary, tertiary) of packaging are applied (see tutorial on levels of packaging).

When packaging fails the protection function, the impacts can range from rendering whatever has been packaged merely blemished, to rendering it unfit for intended purposes.

The protection function is not limited to that which is packaged. It must extend to people, namely, whoever reasonably can be expected to encounter the packaged entity. If, for example, the contents have the potential of inflicting harm, perhaps as a consequence of an inherent property, such as corrosiveness, the packaging must serve as a protective safeguard.

In instances in which the contents ordinarily are deemed safe but can be dangerous in the possession of particular persons——children are the quintessential example——packaging, through features such as child-resistant closures, must provide adequate protection.

Protection isn’t limited to individual things but also extend to collections or assemblies. Cargo that has loosened or otherwise been compromised, such that it cascades down onto the person opening the doors of a truck or intermodal container, for example, has not been protectively packaged. So too, when a packaged load weakens during handling or storage to a degree that it poses a safety hazard.

When packaging fails the protection function, the results can be damaged or loss goods, leading to injuries and fatalities, and both.

Communication. The communication function reflects the fact that packaging is a medium. Packaging communicates through its graphics, that is to say, through its labeling, including the printed word, symbols, icons, images, colors, and fonts. It also communicates through its structure, i.e. size, shape, and composition, while engaging any of, to all of, the five senses. Especially as applied to retail goods, packaging, through its communication function, is a potent marketing tool that can impart shelf-appeal and give a brand a competitive advantage.

But the communication function of packaging also is vital in the conveyance of warnings and safety instructions (hereafter, warnings). A wide variety of packaged goods pose hazards that might not be known to a reasonably alert and prudent user, thereby triggering a duty to warn on the part of the product marketer. Even when a user has some familiarity with the nature of a hazard, a warning can serve as a valuable reminder.

The easier determination, in the failure-to-warn sense, is when there’s a duty to warn but no warning is provided. The more difficult determination is when a supposed warning is not adequate, in that, an inadequate warning is tantamount to no warning at all.

An adequate warning abides by a variety of factors related to what the warning says (content) and the framework within which it’s presented (format). Specific to packaging, and in addition to content and format, other issues factor into adequacy. One is conspicuity, how easily the warning can be perceived. A warning must be prominently displayed, such that it stands out from the surrounding visual elements.

When packaging fails the warnings component of the communication function, the results can be an unreasonably dangerous product, leading to injuries and fatalities.

Utility. Packaging facilitates the interaction between people and what’s packaged; as such, the utility function is also referred to as the convenience function.

A feature that’s typically associated with utility is that of easy opening. As innocuous as that might sound, it can have a safety consequence, if an instrument (a knife?) is used and the instrument cuts fingers. Then again, there are types of packaging, such as clamshells, that can bear sharp edges that can cut all on their own.

A different example demonstrates the utility function on two levels. A corrugated box with die-cut slots for inserting one’s hands facilitates manual handling; however, how safely the handling can be performed is contingent on the location of the slots and the construction of the box. By contrast, unitizing dozens of those boxes on a pallet facilitates mechanical handling; however, how safely the handling can be performed is contingent on how solidly the unit has been assembled, as to pallet pattern, strapping, and stretch-wrapping.

When packaging fails the utility function, the results are inconveniences as to time and effort, at minimum, and injuries and fatalities, at most.

In summary, packaging performs only a handful of functions; nonetheless, they can take on a wide variety of complexities that have a direct impact on safety. As established, failure in any function can result in injuries and fatalities. When that happens, litigation is mostly a foregone conclusion, taking such forms as product liability, personal injury, failure-to-warn, and insurance claims.