logistics – Packaging Expert Witness

The case of ego vs. testimony

by Sterling Anthony, CPP, expert in packaging, marketing, logistics, human-factors, and warnings.

For an expert, ego is a job requirement; otherwise, there is no justification for holding oneself out as more knowledgeable, than is the jury, the attorneys, and the judge, about a subject before the court. Too much ego, however, undermines an expert’s effectiveness, particularly when testifying at deposition or at trial.

Too much ego does not mean that the expert is egotistical, or worse, egomaniacal. Such extremes are difficult to mask and likely would have manifested themselves before a matter progressed to testimony. Too much ego is any amount that hurts the case; after all, an expert is retained to be an asset, not a liability.

Rational experts don’t intentionally sabotage their testimonial effectiveness; therefore, they must guard against doing it unintentionally. One safeguard is to avoid being needlessly defensive.

When testifying at deposition, the expert’s qualifications, through vetting, already has been accepted by the retaining attorney. When testifying at trial, the expert’s qualifications, through proffer, already has been accepted by the court. The expert should bear those acceptances in mind and not fall into a defensive posture, distracted from letting the soundness of the testimony prove his/her qualifications.

The opposing attorney will appear unimpressed, and, overtly or covertly, impugn the expert’s qualifications vis-à-vis the matter-at-issue. That’s the nature of the adversarial system, and the expert should not be seen as taking umbrage, as if to say, “How dare you, when I’m the smartest person in the room.”

The expert should not engage in verbal combat but should leave it to the retaining attorney and the judge to reel in an overreaching opposing attorney. The expert should refrain from giving snide responses or saying anything personally directed at the opposing attorney. The expert who descends to that level has lost perspective.

It particularly can be damaging at trial, when everything is on the line and so much time and resources have been expended in getting to that point. The last thing needed is for the expert’s ego to alienate the jury.

Regarding what’s important, it’s about the expert only to an extent; what’s most important is the retaining attorney’s theory of the case. In that regard, the expert should subscribe to a Hippocratic oath, of sorts, in that, first, do no harm.

An expert’s susceptibility to allowing ego to interfere with testimonial effectiveness might not be discovered during the vetting process; therefore, the retaining attorney needs to stay alert to warning signs.

It’s a warning sign whenever the retaining attorney’s responsibly for case strategy is challenged by the expert, beyond the giving of advice. It’s a warning sign, for example, when the expert resists any and all proposed changes in his/her Report, down to the last comma. More worrisome is the expert who ignores instructions, for example, when the retaining attorney, concerned with what’s discoverable by the opposing side, specifies the channels (phone, email, regular mail) through which communications are to be made.

The saying goes, “Check your ego at the door.” That might not be totally possible or even desirable for the expert; nonetheless, ego should not be allowed to negatively affect the testifying expert’s temperament and comportment.

Sterling Anthony’s contact information: 100 Renaissance Center-Box 176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

Expert discusses court entrance

by Sterling Anthony, CPP, expert in packaging, marketing, logistics, and human-factors.

An expert’s impact on a jury does not being with testimony; rather, it begins with the expert’s entrance into the courtroom. When the judge instructs the attorney to call the next witness and the attorney responses with a name, jurors ready themselves for a new stage in the proceedings.

The expert should walk to the witness stand at a normal pace, while mindful of good posture. The expert should avoid the impression of wearing blinders; instead of a gaze fixed straight ahead, the expert’s head and eyes should divert normally, taking in the surroundings, an acknowledging nod or two, if appropriate.

As the expert walks to the witness stand, the jury sees the expert’s outer attire, and nothing about it should be off-putting. Testifying is serious business; as such, the expert only should wear business attire, preferably of a conservative style.

During the oath, the expert should stand tall, while maintaining eye-contact with the person administering the oath. A confident, “I do,” or even more succinct, a “Yes,” clears the way for the expert to be seated.

The expert should not nestle into the witness chair, using unnecessary adjustments that might be perceived by the jury as nervousness or lack of confidence. At this time, the expert should adjust the microphone, preventing having to lean or otherwise change posture with each answer. If water is within reach, this would be a convenient time to pour a drink, to have it at the ready for later consumption.

Now it’s time for testimony, to help the jury understand the issues pertaining to the expert’s specialty. Throughout, the expert should not let the effectiveness of the testimony to be sabotaged by errors in comportment. It begins with the entrance; after all, no one gets a second chance to make a good first impression.

Sterling Anthony’s contact information is: 100 Renaissance Center, Box-176, Detroit, MI 48243; 313-531-1875; www.thepackagingexpertwitness.com; thepackagingexpertwitness@gmail.com

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

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.

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 pallets

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

Pallets carry 95% of the world’s cargo, and 90% of pallets are constructed of wood. Those overwhelming percentages establish wood pallets as the linchpin of logistics, affecting the cost, efficiency, and safety with which transportation, material handling, and storage are performed.

The pallet, on surface, is a simple concept, a platform on which items are placed, allowing the now palletized load to be moved mechanically, such as with a forklift truck. On the other hand, pallets should be engineered, designed for structural integrity, under all reasonably-foreseeable conditions encountered from the time they’re loaded until the time they’re unloaded.

Pallets need to embody the requisite combination of strength, stiffness, durability, functionality/compatibility, and affordability.

Strength refers to load-bearing capacity.

Stiffness refers to resistance to undue bending and flexing.

Durability (if not designed for just one trip) refers to the ability to give service across multiple trips.

Functionality/compatibility refers to being consistent with the materials loaded, material handling equipment, transportation regulations, etc.

Affordability refers to FIRST that the pallet be fit for its intended purposes and THEN that it be attainable at the lowest comparable price.

Pallets are of two design categories, referring to how the base is constructed: stringer and block. A block pallet is 4-way, meaning that material handling forks can enter from 4 directions (front, back, and ends). A stringer pallet is 2-way (ends) but can be made 4-way with spaced notches for fork entry, but at the sacrifice of weakening the pallet and making it more vulnerable to damage.

Regardless of design, pallets are different than mass-produced items that (barring a manufacturing defect) are indistinguishable, one from the other. More so than being manufactured, pallets can be said to be assembled and crafted; therefore, there is an inherent potential for variation, even across pallets built from the same design. Some factors that can contribute to said variation include:

Lumber. A pallet’s physical properties are influenced by the type of wood, that is to say, whether hardwood (from deciduous trees) or softwoods (from coniferous trees). Within any one type of lumber are grades, reflecting how free the lumber is from such defects as bark, knotholes, and dimensional irregularities. Yet another important consideration is the degree to which the lumber has been kiln-dried or remains green.

Number and positioning of deck boards. A deck comprised of abutting boards, with no spaces in between——all other things being equal——is sturdier than a deck with spaced boards. Of the latter type of decks, the greater the spacing the less sturdy and the greater the opportunity of an unstable load.

Type, number, and positioning of fasteners. Whether staples or nails are used affect how well the components remain attached, and within each category of fasteners, there are different sizes, with different holding strengths. How many fasteners are used affects how steadfastly the components are joined. Whether the fasteners are patterned in a straight line or staggered not only has an effect on holding strength but also on how likely a board, for example, might split.

By industry standards, any company that loads a pallet is responsible for the fitness of the pallet, and by extension, the fitness of the palletized load.

When pallets fail, the immediate consequence is that the load becomes dangerous to move, prone to tilting on the forks or even falling off. The danger to anyone in the vicinity hardly needs elaboration. Pallet failure also can occur during storage, with the sudden collapse of the load. Failure also can occur during transportation making the unloading——and even the opening of the doors of the equipment——hazardous.

When pallet failure causes or contributes to cargo lost or personal injury and litigation ensues, either party would be wise to retain an expert. The expert should have knowledge of, and experience in, the design, specification, sourcing, inspection, and care of pallets.