packaging – Packaging Expert Witness

Failure-to-warn disfigures Plaintiff

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

Synopsis

A manufacturing company used a certain chemical supplied in 55-gallon steel drums. The chemical was volatile and inflammable, and as such, was classified as a hazardous material. The company had a contract with a third-party company for hauling away the empty drums.

An employee at the manufacturing company knew a man who operated a sideline business of selling barbecue grills that he fashioned from 55-gallon steel drums.

The employee, allegedly without disclosing the man’s sideline business, sought and received permission for the man to buy some empty barrels. There came a time when the man was allowed to load his pickup truck with empty barrels.

Subsequently, the man was using an acetylene torch on a barrel: however, it still contained residual fumes of the chemical. An explosion resulted, causing disfiguring injuries from burns and from shrapnel.

The man sued the manufacturing company for negligence stemming from failure-to-warn.

I was retained by the attorney for Plaintiff.

Opinions

The company gave Plaintiff the barrels without warning Plaintiff that they had contained a hazardous material and without warning Plaintiff of related safety considerations.

The company gave Plaintiff the barrels without any inquiries as to Plaintiff’s intentions.

Defendant’s claim of not knowing that Plaintiff intended to repurpose the barrels did not absolve Defendant of its duty to warn.

The company, via its contract with a specialty hauler, had evidenced that it was aware that the safe hauling of the barrels and their safe ultimate disposal required knowledge and expertise.

The Defendant made available to its employees material safety data sheets detailing the hazards associated with the subject chemical; yet, Defendant did not put the Plaintiff on notice in any way.

Defendant gave Plaintiff the barrels having removed all labels and placards identifying the once contents as a hazardous substance; as such, Plaintiff was not on notice from those types of warnings.

Result

The case settled.

Sterling Anthony, CPP, can be contacted via 100 Renaissance Center-Box 176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

Packaging fails, worker injured

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

Synopsis

A worker for a parcel-post delivery service was manually sorting packages off a conveyor. One of the packages was a corrugated box containing an industrial blade. The blade had cut through the box, resulting in exposure of the sharp edge. Unaware of said exposure, the worker suffered lacerations to one of his hands, causing permanent damage to nerves and ligaments.

The worker sued the manufacturer of the blade, alleging defective packaging, an unreasonably dangerous product, and failure-to-warn.

I was retained by the attorney for the Plaintiff.

Opinions

Because the blade was packaged loose inside the box, the resulting freedom of movement allowed the sharp edge of the blade to contact against the box, eventually cutting through it.

Because the box was oversized relative to the dimensions of the blade, the relationship increased the ability of the blade to move inside the box.

It was reasonably foreseeable that an unrestrained sharp blade can cut through a corrugated box, a common-sense example being a box-cutter instrument.

It was reasonably foreseeable that the size and weight of the blade would give impetus to contacts against the box, sufficient for the blade to cut through the box.

It was reasonably foreseeable that the physical forces (impacts, vibrations, compressions) encountered throughout the parcel post delivery environment would increase the already reasonably foreseeable probability that the blade would cut through the box.

There was no printed warnings on the box that it contained a sharp-edged instrument; as such, Plaintiff was never on notice as to the hazard.

There were alternative ways to package the blade for safety, and such ways were technologically and economically feasible.

Result

The case settled.

Sterling Anthony, CPP, can be contacted through: 100 Renaissance Center, Box 176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

Contract packaging led to recall

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

Synopsis

A national retailer wanted to carry a liquid cocktail mix and approached a national brand-owner about developing such a product. The brand-owner contracted with a packaging development firm. The packaging development firm designed a concept that consisted of a bottle, label, safety seal, and cap, and then chose suppliers for each component. The brand-owner, however, chose the contract packager that formulated, processed, packaged, and shipped the product.

Not long after the launch, the retailer experienced “leakers” that not only spoiled the appearance of the packaging but also stained the store shelves. The problem worsened, eventually leading to a product recall and a discontinuance of the product, altogether.

The brand-owner sued the packaging development firm and the contract packager for recovery of loss profits, alleging negligence.

I was retained by the Defense attorney for the packaging development firm.

Opinions

The packaging development firm followed a process that resulted in packaging consisting of components that were mutually compatible and designed within tight tolerances.

The various suppliers manufactured the components within specifications.

The contract packager was not experienced in the filling of liquids into packages and the sealing of same, and operated with inadequate quality-assurance.

It was the sealing operation, specifically, that allowed leakers to later develop in the field.

Well-designed packaging is nonetheless undermined by inadequate filling and sealing operations.

All of the field reports, including photos taken in the stores and other locations throughout the supply-chain. showed that the leaking was occurring around the sealed cap.

The quality-assurance at the contract packaging firm had inadequacies that allowed the inferior seals to enter the stream of commerce, undetected at the source.

It was the responsibility of the brand-owner to evaluate the fitness of the contract packager.

The packaging development firm was not responsible for the inadequacies of the contract packaging nor was the former involved in the choosing of the latter.

Result

The packaging development firm Defendant was dropped from the case.

Sterling Anthony can be contacted through: 100 Renaissance Center- Box 176, Detroit, MI 48243; 313-531-1875; www.thepackagingexpertwitness.com; thepackagingexpertwitness@gmail.com

Collapsed pallet injury

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

Synopsis

A warehouse worker was injured when a stretch-wrapped, pallet load suddenly collapsed, causing an upper tier of cartons of products to fall on him.

A personal injury/product liability suit was brought against the company that assembled the load, alleging strict-liability and negligence, stemming from defective packaging.

I was retained by the attorney for the Plaintiff.

Opinions

The contents weight, as established by the Box Manufacturer’s Certificate, was exceeded, thereby rendering the cartons unfit for their intended purposes, both from a performance standpoint and from a regulatory standpoint.

The bottom tier of cartons extended beyond the perimeter of the pallet, beyond industry standards, producing an overhang that reduced the stability of the load, in addition to reducing the load’s stacking strength.

The load exceeded recommended height, as set by industry standards, thereby increasing the load’s susceptibility to collapse.

Corner posts constructed of corrugated paperboard had been placed inside each carton for stacking strength; however, only three posts per carton left one corner without a post, resulting in said corner having less stacking strength.

Photos taken of the collapsed load showed that a carton on the bottom tier had a corner that had “blown out.” Subsequent inspection revealed that the failed corner had no corner post.

Whether severally or in combination, the defects were the direct and proximate cause of the collapse; furthermore, the collapse was reasonably foreseeable.

There were ways to construct a pallet load for stability and for safety, ways that were technologically and financially feasible.

Result

The case settled.

Sterling Anthony, CPP, is an expert witness specializing in packaging, marketing, logistics, human-factors, and warnings. Contact information: 100 Renaissance Center, Box-176, Detroit, MI 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

Packaging and driver injury

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

Synopsis

A driver for a package-delivery service, while on a run, incurred an injury to the foot that resulted in amputation of a toe. The driver said that, upon retrieving a package from a shelf in his delivery truck, the bottom of the package failed, allowing the contents to fall through, onto his foot.

The driver sued the shipper, alleging negligence from defective packaging.

I was retained by the Defendant.

Opinions

The packaging was not defective; to the contrary, it was of a design and sturdiness adequate for the known and reasonably foreseeable conditions associated with the package-delivery industry.

The fitness of the packaging had been time-tested and shown to be fit for its intended purpose. The same type of packaging design and construction had been used by the shipper, to the same customer, for more than 20 years. In a deposition, the customer testified to never having had an incident of packaging failure.

The packaging met all of the requirements listed in the literature and on the website of the package-delivery service that employed the Plaintiff.

A package-delivery service has the authority and the duty to reject any package deemed to be defective; and, in that such wasn’t done with the packaging-at-issue, it is fair to say that there was nothing observably deficient with the packaging at the time it was tendered.

A package-delivery driver, by training and experience, should be able to recognize observably deficient packaging and then act in accordance with company policy; and, in that such wasn’t done with the packaging-at-issue, it is fair to say that no such appearances existed at the time the driver placed the packaging on the shelf of the truck.

The exemplar involved in the incident and examined by this expert for the Defense was damaged to a degree that would have been obvious to the Plaintiff; more so, the damage suggested that it was inflicted after-incident, on empty packaging.

Contrary to Plaintiff’s claim, the contents could not have escaped through a failed bottom, because the bottom was solid as opposed to being taped flaps.

In all, the Plaintiff’s narrative as to how he was injured was inconsistent with the evidence, as presented by the design and construction of the packaging used by the shipper and by the exemplar examined by this expert for the Defense.

Result

The case settled.

Sterling Anthony, CPP, is an expert witness, specializing in packaging, marketing, logistics, human-factors, and warnings. Contact him at: 100 Renaissance Center-176, Detroit, MI 49243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

Eyelash adhesive packaging case

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

Synopsis

A woman who wore contact lens purchased a Halloween Cat Makeup Kit that included false eyelashes and the adhesive for applying them. Her husband assisting, they applied the eyelash on the right but the one on the left would not stay affixed. During several tries, she began experiencing pain in the left eye. After flushing the eye with water, she gave up on the left eyelash and then removed the one on the right.

Over a matter of hours, the pain in the left eye increased, causing the women to go to the hospital. The contact lens in her left eye had become glued to her cornea and had hardened, such that it had to be scraped off. She incurred permanent damage to that eye, despite subsequent surgery.

The woman and her husband brought suit against the marketer of the Halloween Cat Makeup Kit and the retailer, alleging defective packaging and failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions

A common warning in the cosmetics industry is that contact lens wearers should not wear false eyelashes because the adhesive can damage the lens. Although that warning addresses damage to the lens and not to the eye, had that warning been given, it would have dissuaded the Plaintiff from using the false eyelashes.

Since there are 30 million contact lens wearers in the U.S., with two-thirds being female, it is reasonably foreseeable that, a Halloween Cat Makeup Kit that includes false eyelashes and adhesive, marketed to women, would be purchased by more than an incidental number of contact lens wearers.

It is reasonably foreseeable that not every wearer of contact lenses is a wearer of cosmetics, in general, or a wearer of false eyelashes, in specific; therefore, there was a need to warn, vis-à-vis the associated hazards.

There was a failure-to-warn because there was nothing that addressed the specific hazard of damage to the eye caused by adhesive on a contact lens.

There was a defective package design, in the form of a 0.5 oz. needle-nose metal tube, which did not allow controlled, consistent dispensing, increasing the possibility that adhesive could get into the eye.

The small size of the adhesive package limited its effectiveness as a medium for warnings; however, well-designed, conspicuous warnings could have, and should have, been provided on the carton that contained the kit and even on a leaflet placed inside the carton.

The promotional copy on the carton emphasized how easily and how quickly the consumer can transform herself into a sexy feline. A rational consumer would be justified in concluding that the kit posed no hazards, especially given the absence of warnings.

When adhesive gets into the eye, flushing with water is a reasonably foreseeable response; however, the adhesive can harden despite the flushing.

The adhesive is colorless; therefore, it can remain in the eye and on a contact lens, although the wearer might believe that flushing has removed it.

Result

The case settled.

Sterling Anthony, CPP, is located at 100 Renaissance Center-43176, Detroit Michigan 48243. Phone: 313-531-1875. thepackagingexpertwitness@gmail.com. www.thepackagingexpertwitness.com

Button batteries packaging case

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

Synopsis

A 20-month old boy was able to remove a button battery from its packaging and went on to swallow the battery. The boy was rushed to the hospital, where the battery was extracted; however, by then, the boy had suffered chemical burns to the esophagus. The treating doctors predicted that the boy would live under an increased probability of contracting cancer of the esophagus later in life.

The parents brought suit, alleging defective packaging and failure-to-warn.

I was retained by the attorney for the Plaintiff.

My opinions

The packaging was defective for not having been child-resistant (C-R). It was reasonably foreseeable that an exploring child, attracted to a shiny button battery, could, by happenstance, remove the battery. That the child would place the freed battery into his mouth also was reasonably foreseeable.

There were technologically and economically feasible ways to design the packaging to be child-resistant, without interfering with the packaging’s role as a marketing tool.

The packaging, called a blister, held two button batteries and consisted of a rigid plastic cover sealed to a card . The back of the card was perforated and the intended means of extracting the battery was to press down on the plastic cover with sufficient force to push the battery through the perforated card.

The front of the package gave no warning that the back was perforated, making it reasonably foreseeable that the parents would think that the packaging was more difficult to open than turned out to be the case.

The front of the package did not instruct the parents that there were warnings on the back of the card; nonetheless, the warnings, as they were, did not address the hazard of choking, even though the Material Safety Data Sheet for the product did address that hazard.

The manufacturer knew, or should have known, that there had been other incidents of ingestion of button batteries, because reports of such incidents were in the public domain, including reports by the Consumer Products Safety Commission.

With the proper combination of package design and warnings design, the accident would not have happened.

Result

The case settled.

Sterling Anthony, CPP, is a consultant and expert, specializing in packaging, marketing, logistics, human-factors, and warnings. His contact information: 100 Renaissance Center-Box 176; Detroit, Michigan 48243; 313-531-1875; thepackagingexpertwitness@gmail.com; www.thepackagingexpertwitness.com

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

Contraceptive packaging errors

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

Synopsis:

A woman incurred an unwanted pregnancy as a result of errors with her contraceptive pills.

The packaging presented the pills out-of-sequence. Week-4 pills and week-1 pills were inverted on the calendar card, thereby reversing the presentation of ingredient-active pills and placebos.

The woman filled a personal injury suit, alleging defective packaging and failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions:

Given the purpose of contraception and the consequences of failure, the manufacturer owed a standard-of-care; however, that standard-of-care was breached.

The packaging had a design defect, because when made to specification, it allowed the pills to be presented in inverted order.

There were alternative designs, technologically and financially feasible, that would have prevented the possibility of an inverted order.

The packaging had a marketing defect, because it failed to warn the consumer of the correct presentation order and failed to instruct the consumer to check for same.

There were ways to have designed effective warnings, consistent with warnings theory and regulatory dictates.

The contract packager chosen by the manufacturer of the pills, lacked the experience, process controls, and quality assurance necessary for the assignment.

There were contract packagers that had the requisite experience, process controls, and quality assurance that would have prevented the errors-at-issue, or, at least, would have caught them in time to prevent a defective product from entering the stream of commerce.

Result:

The case settled.

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

Wrongful death case

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

Synopsis:

Parents discovered that their toddler had gotten hold of a bottle of baby oil and had gotten the product around his nose and mouth. The parents cleaned the toddler’s face. The toddler showed no immediate ill-effects, but the next day experienced breathing difficulties and was taken to the hospital. He was diagnosed as having inhaled (aspirated) baby oil. The oil had coated the toddler’s lungs and the hydrocarbons in the oil had caused a type of pneumonia. After languishing for days, the toddler died.

The parents brought a wrongful death suit against the manufacturer of the baby oil, alleging an unreasonably dangerous product, defective packaging, and failure-to-warn.

I was retained by the attorney for the Plaintiff.

My opinions:

The packaging had a design defect, being a squeezable plastic bottle without a child-resistant closure.

The packaging had a marketing defect, lacking warnings against the hazard of inhalation.

It was foreseeable that the product would be found in households having young children.

It was foreseeable that the product would end up in the hands of a young child if left within that child’s reach, given the lack of warnings to the contrary.

It was foreseeable that the product can be an attractive nuisance, in that a child accustomed to having the product administered by an adult might try to apply it to himself, given the opportunity.

It is known that young children have the dexterity to remove a closure that is not child-resistant, in addition to having the strength to squeeze a plastic bottle.

There had been similarly-caused fatalities on record; therefore, the Defendant knew or should have known about the hazard posed by the product.

The state-of-the-art in packaging included solutions that were technologically and financially feasible.

The state-of-the-art in warnings theory established a duty-to-warn, under the conditions attendant to the case-at-issue.

Result:

The case settled.

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